Santamaria

concurring:

I concur in Judge Wallace’s opinion, but for the additional reason that, at the end of the day, it would be unrealistic and confusing to restrict the jury on retrial by instructing that the jury could not find Santamaría guilty as a principal as a direct and active perpetrator solely through his personal use of a knife. To do so (as Justice Mosk’s analysis would require) strikes me as making no practical sense. Therefore, to hold that Santamaría may be retried on the murder charge comports with the Supreme Court’s admonition that the collateral estoppel component of double jeopardy be applied with “realism and rationality.” Ashe v. Swenson, 397 U.S. 436, 444 , 90 S.Ct. 1189, 1194 , 25 L.Ed.2d 469 (1970).

Opinion by Judge WALLACE; Concurrence by Judge FERNANDEZ; Concurrence by Judge RYMER; Concurrence by Judge KOZINSKI; Dissent by Judge PREGERSON.

Sheriff Don Horsley of San Mateo County, California, (State) appeals from the district court’s issuance of a writ of habeas corpus in favor of Jose Napolean Santamaría. The district court had jurisdiction under 28 U.S.C. § 2254 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 2253. Because Santamaría argues that retrial will violate his constitutional rights, we may review his petition even though it is pretrial. See 28 U.S.C. § 2241 (c)(3); Braden v. Judicial Circuit Court of Ky., 410 U.S. 484, 488-90 (majority) and 503 (Rehnquist, J., dissenting), 93 S.Ct. 1123, 1126-27, 1133-34 , 35 L.Ed.2d 443 (1973). Beyond that, the State has not asked us to abstain or demand further exhaustion on Santamaria’s part, nor do we see any *1244 other basis for deferring a decision. Therefore, we address the merits of Santamaria’s petition. We granted rehearing en banc to determine whether to overrule Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.1991) (Pett away). We reverse.

I

In February 1989, a California jury found…

concurring:

I concur in the majority opinion but with a certain degree of discomfort. As an intellectual and analytical matter, I believe that Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.1991), was essentially sound. It precluded the State from attempting to prove the defendant guilty solely on the theory that he was the direct perpetrator of a shooting offense, when the State said that was all it could possibly prove. See id. at 1047 . As the State told the court, “it could suggest no person Pettaway might have aided and abetted.” Id. To a somewhat lesser extent, that is the same position that the State takes here, and that it took when Santamaría was before the California Supreme Court. See People v. Santamaria, 8 Cal.4th 903, 910 , 884 P.2d 81, 82 , 35 Cal.Rptr.2d 624, 625 (1994). (Santamaria I). Indeed, as the majority opinion indicates, the State says that this case and Pettaway are on all fours.

I also believe that California Supreme Court Justice Mosk’s dissent was correct as an analytical matter. See Santamaria I, 8 Cal.4th at 927-35 , 884 P.2d at 94-99 , 35 Cal.Rptr.2d at 637-42 . Perhaps I should also say that philosophically and theoretically his opinion and Pettaway…

concurring.

I agree that Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.1991), was wrongly decided, but on very different grounds than the majority. As the opinion notes, “Santamaría does not argue that his retrial for murder is barred by the Double Jeopardy Clause---The sole issue we address is whether the *1250 jury’s verdict ... precludes the State from presenting evidence and arguing [a theory] in a retrial[.]” Maj. op. 1244. Because Santa-maría may be retried, the state does not violate his constitutional rights by detaining him for that purpose. Since Santamaria’s detention does not violate the Constitution, there is no basis for invoking the power of federal habeas corpus at this time. See 28 U.S.C. § 2254 (a).

While there is no easelaw directly on point, we have solid authority in the closely analogous context of interlocutory appeals in federal prosecutions. When a district court denies a defendant’s motion to dismiss the indictment based on double jeopardy, the defendant may appeal immediately. See Abney v. United States, 431 U.S. 651, 662 , 97 S.Ct. 2034 , 2041 — 42, 52 L.Ed.2d 651 (1977). This is because a double jeopardy claim implicates more than a defendant’s right…

dissenting,

A state trial jury found Jose Napolean Santamaría guilty of murder and robbery. The same jury then addressed sentencing enhancement based on the state’s claim that Santamaría had personally used a knife to commit the murder. After being instructed that the state must prove this claim beyond a reasonable doubt, the jury unanimously responded that the claim was “not true.”

The majority seems entirely comfortable with the possibility that a second jury may be asked this same question and come to an entirely different conclusion. A fundamental constitutional doctrine meant to give prose-cutive authorities one full, fair opportunity to prove its claims is thus read to give the state a second bite at the apple.

Pettaway v. Plummer, 943 F.2d 1041 (9th Cir.1991), would preclude the prosecution from arguing at a retrial that Santamaría personally used a knife to commit murder. I submit that Pettaway was decided correctly and should not be overturned.

I.

A defendant bears the burden to show that “the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.” Dowling v. United States, 493 U.S. 342, 350 , 110 S.Ct. 668, 673 , 107 L.Ed.2d 708…