dissenting.

I respectfully dissent.

In this matter, an Oregon state court jury found Mr. Wilson not guilty of intentional murder but was unable to reach a verdict on three counts of aggravated murder. An intent to kill is an element of the crime of aggravated murder under Oregon law. The state trial court denied Mr. Wilson’s motion to bar his retrial for aggravated murder on Fifth Amendment double jeopardy grounds. Mr. Wilson filed a petition for an alternative writ of mandamus before the Supreme Court of Oregon in which he invoked his Fifth Amendment right to protection from double jeopardy. The petition was denied without opinion.

Mr. Wilson filed a state prisoner petition for habeas corpus in the District Court for the District of Oregon. Relying on the United States Supreme Court’s decisions in Richardson v. United States, 468 U.S. 317 , 104 S.Ct. 3081 , 82 L.Ed.2d 242 (1984), and United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984), District Judge Robert E. Jones denied the petition. The district court held, inter alia, that double jeopardy did not apply because the jury’s inability to reach a verdict on the aggravated murder charges was inconsistent with its decision to acquit Mr. Wilson of the separately pleaded crime of intentional murder. Wilson v. Czerniak, 238 F.Supp.2d 1207, 1214 (D.Or. 2002).

I would affirm the district court’s denial of habeas corpus relief. I agree with Judge Jones’s conclusion that the state court’s decision to permit retrial of the aggravated murder charges is not contrary to, or an unreasonable application of clearly established decisions of the United States Supreme Court. Id. at 1218 .

The majority has failed to cite any decision of the United States Supreme Court that holds that the double jeopardy doctrine applies to bar a retrial where a jury’s failure to reach a verdict is inconsistent and irrational in light of the fact that it returned a not guilty verdict on a separately pleaded crime containing a common essential element. The majority’s attempt to distinguish the Supreme Court’s decisions in Richardson and Powell because of their factual dissimilarities from the matter sub judice is not persuasive.

I

The evidence presented to the jury is set forth in the district court’s opinion:

Wilson v. Czerniak, 238 F.Supp.2d at 1209-10 .

II

In enacting the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (d)(1),. Congress sharply circumscribed federal court review of a state court’s decision rejecting a claim that a judgment of conviction must be set aside because it violates federal law.

Section 2254(d) provides:

A state court acts “contrary to ... clearly established Federal law” if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case differently from the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 412-13 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000); Ramdass v. Angelone, 530 U.S. 156, 165-66 , 120 S.Ct. 2113 , 147 L.Ed.2d 125 (2000). In Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003), the Supreme Court stated that it is not enough that the federal court is left with a firm conviction that the state court’s decision was incorrect or erroneous. Rather, that application must be objectively unreasonable. Id. at 1175. The Court reasoned as follows: “Under Section 2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. (quoting Williams v. Taylor, 529 U.S. at 411 , 120 S.Ct. 1495 ).

*1159 The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.... ” U.S. Const. Arndt. 5. This constitutional prohibition “was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States, 355 U.S. 184, 187 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957). In Richardson , the United States Supreme Court held that “jeopardy does not terminate when the jury is discharged because it is unable to agree.” 468 U.S. at 326 , 104 S.Ct. 3081 .

Here, the jury was discharged because it was unable to agree regarding whether Mr. Wilson was guilty of three counts of aggravated murder. Under the clearly established rule announced in Richardson , Mr. Wilson was not placed in jeopardy because the jury was unable to agree. Therefore, the state court’s decision to deny Mr. Wilson’s motion to bar his retrial on Fifth Amendment double jeopardy ground was not contrary to, or an unreasonable application of the rule clearly established by the Supreme Court in Richardson .

To avoid applying Richardson , the majority has created an exception to the principle that a jury’s inability to reach a verdict does not bar a retrial: namely, a jury’s inability to reach a verdict constitutes jeopardy if the defendant was acquitted of a separately charged offense that is included in the offense about which the jury disagreed. Assuming, arguendo, that the United States Supreme Court will some day adopt the majority’s exception to the rule announced in Richardson , this court lacks the power to apply a new rule in state prisoner habeas corpus proceedings filed pursuant to 28 U.S.C. § 2254 . In Penny v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), the Supreme Court held that “new rules will not be applied or announced in cases on collateral review....” Id. at 313 , 109 S.Ct. 2934 (emphasis added) (citing Teague v. Lane, 489 U.S. 288, 301 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989)). Thus, the exception to Richardson announced by the majority in this matter would not be applicable on this collateral review. It should also be noted that the majority’s new rule announced in this matter is based on its reading of Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977). Each of these cases, however, was decided by the Supreme Court prior to its decision in Richardson .

Even if the majority is correct in concluding that the state courts erred in failing to apply Blockburger and Brown to the procedural facts presented in this record, a federal court cannot reverse a state court’s judgment “simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. at 411 , 120 S.Ct. 1495 . The state trial court’s decision that the double jeopardy doctrine did not bar further prosecution of the aggravated murder charge did not contradict the Supreme Court’s decision in Richardson . Rather, the denial of the motion to bar a retrial on the aggravated murder charges is clearly consistent with the rule announced in Richardson that “jeopardy does not terminate when the jury is discharged because it is unable to agree.” 468 U.S. at 326 , 104 S.Ct. 3081 .

Ill

With respect, I also disagree with the majority’s summary rejection of application of United States v. Powell to the facts *1160 set forth in this record. In Powell , the United States Supreme Court. held that the Double Jeopardy Clause does not apply when a jury has reached inconsistent verdicts. 469 U.S. at-64-65, 105 S.Ct. 471 . The jury found the defendant guilty on one charge but found her not guilty on a separately charged offense although the verdicts were irreconcilable on the facts. Id. at 64-69 , 105 S.Ct. 471 . Here, the jury acquitted Mr. Wilson of the crime of intentional murder, but was unable to reach a verdict on three counts of aggravated murder, even though an element of that crime is that the perpetrator intended to murder the .victim. This result is clearly irrational and inconsistent. In Powell , the Court held that:

Powell, 469 U.S. at 64-65 , 105 S.Ct. 471 (internal citation omitted) (quoting Dunn v. United States, 284 U.S. 390, 393 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932)).

In this matter, as in Powell , it is possible that some of the jurors were convinced that Mr. Wilson was guilty of aggravated murder, because he intended to kill the victim, but could not persuade their fellow jurors to reach a unanimous verdict of guilty of that crime. It is equally plausible that, “through mistake, compromise, or lenity,” the jurors arrived at an inconsistent verdict regarding the offense of intentional murder. Powell, 469 U.S. at 65 , 105 S.Ct. 471 .

In Powell , the Court affirmed the jury’s verdict convicting the defendant, notwithstanding its inconsistent verdict on a separate offense. Thus, under Powell , had the jury in this matter convicted Mr. Wilson of aggravated murder, because the evidence showed an intent to kill the victim, an appellate court would be required to affirm the conviction, even though the jury inconsistently acquitted him of the separately charged offense of intentional murder.

Mr. Wilson’s has attempted to distinguish Powell on the basis that in this matter the jury did not convict him of aggravated murder, but instead, could not reach a verdict on that count. The logic of this argument is somewhat baffling. Under Mr. Wilson’s interpretation of Powell , the Double Jeopardy Clause applies if the jury does not reach a verdict, but does not apply if it finds the defendant guilty. No United States Supreme Court decision has reached this incongruous result where the jury’s conclusion is inconsistent or irrational. Even if the state trial courts’s implicit application of Powell to the inconsistent result reached in this case was erroneous, its decision that the Double Jeopardy Clause did not bar reprosecution on the aggravated murder charges was not an *1161 objectively unreasonable application of the decision of our nation’s highest court in Powell . 1

I would affirm the district court’s denial of Mr. Wilson’s § 2254 petition.

. The state courts did not cite Richardson or Powell in rejecting Mr. Wilson's motion to bar a retrial on the aggravated murder charge. The Supreme Court has held, however, that citation or awareness of its controlling precedents is not required “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 , 123 S.Ct. 362 , 154 L.Ed.2d 263 (2003).