James Pettaway v. Charles Plummer, Sheriff of Alameda County

James Pettaway seeks a writ of habeas corpus on the ground that the State of California’s attempt to retry him for murder on the theory that he was the actual perpetrator of the murder violates the Double Jeopardy Clause. In a prior state court criminal proceeding, a jury determined that he did not actually perpetuate the murder. The district court denied the petition. We reverse.

I

At Pettaway’s first state court trial, it was established that on May 1, 1981, Petta-way, Lowana Walker and Michael Seals were at the house of Karen Taylor. At some point, Walker handed Pettaway a handgun with which he shot Seals in the back of the neck. Seals fainted, but when he regained consciousness he saw Petta-way and Walker leaving the house through the front door. Taylor was subsequently found dead in the bathroom with two bullet holes in her head. People v. Pettaway, 206 Cal.App.3d 1312 , 254 Cal.Rptr. 436 (1988).

Pettaway was charged with and convicted of one count of murder and one count of attempted murder. The information included sentencing enhancement charges that, with respect to both the murder and the attempted murder, Pettaway personally used a firearm and personally inflicted…