Robert Dale Gray v. Samuel A. Lewis

Robert Dale Gray, an Arizona prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. In 1978, Gray was acquitted of first-degree rape but convicted of second-degree rape on an indictment alleging forcible rape. In 1981, this court found that the state had violated due process by not providing Gray with adequate notice of the age of the victim as an element of the second-degree rape charge, and granted his petition for a writ of habeas corpus. See Gray v. Raines, 662 F.2d 569 (9th Cir.1981) {“Gray I”).

We found in Gray I that:

Id. at 572 .

Gray was then indicted and convicted for second-degree rape for the same incident. In his instant petition, Gray contends that under Arizona law, there is only one offense of “rape,” and that the state’s prosecution of him for second-degree rape following his acquittal for first-degree rape is therefore precluded by the double jeopardy clause. We review de novo, Watson v. Estelle, 859 F.2d 105, 106 (9th Cir.1983), and affirm.

The double jeopardy clause of the fifth amendment “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same…