Robert Farmer v. E.K. McDaniel , 666 F.3d 1228 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT JEFFREY FARMER,  No. 10-99017
Petitioner-Appellant, D.C. No.
v.  3:09-cv-00379-RCJ-
E.K. MCDANIEL, Warden, RAM
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
December 5, 2011—San Francisco, California
Filed February 7, 2012
Before: Stephen S. Trott and Carlos T. Bea, Circuit Judges,
and Rebecca R. Pallmeyer, District Judge.*
Opinion by Judge Bea
*The Honorable Rebecca R. Pallmeyer, District Judge for the U.S. Dis-
trict Court for Northern Illinois, sitting by designation.
1251
FARMER v. MCDANIEL 1253
COUNSEL
Michael Pescetta, Office of the Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.
1254 FARMER v. MCDANIEL
Robert Wieland, Office of the Attorney General, Reno,
Nevada, for the respondent-appellee.
OPINION
BEA, Circuit Judge:
Robert Farmer was sentenced to death in Nevada in 1984
after a three-judge post-conviction sentencing panel found the
existence of two statutory aggravating circumstances, both of
which were based on the murder’s commission in the course
of other felonies. The panel found no mitigating circum-
stances. However, Farmer’s death sentence was vacated in
2007 after the Nevada Supreme Court held that it was uncon-
stitutional to use as an aggravating circumstance the fact that
a murder was committed in the course of committing another
felony or felonies. McConnell v. State, 102 P.3d 606 (2004).
It then applied that decision retroactively. Bejarano v. State,
146 P.3d 265 (Nev. 2006). Nevada now seeks to reimpose the
death penalty on Farmer, using different statutory aggravating
circumstances. Farmer contends that to impose the death pen-
alty a second time, albeit based on aggravating circumstances
different than those used in the first trial, would violate his
right under the Fifth Amendment’s Double Jeopardy Clause
not to be “twice put in jeopardy of life or limb.” U.S. Const.
amend. V. We hold that Farmer’s double jeopardy rights
would not be violated by the state again seeking a death sen-
tence based on aggravating circumstances different from
those found and used by the sentencer to impose the first
death penalty sentence.
I.
Farmer committed a series of terrible, random crimes in
Nevada in the early 1980s. In January 1982, Farmer killed
Thomas Kane, a man whose car Farmer had stolen. Then, Far-
FARMER v. MCDANIEL 1255
mer robbed and killed a Nevada taxidriver named Greg
Gelunas. Farmer fled to Florida, where he was arrested and
extradited to Nevada.
Upon his return to Nevada, Farmer faced several prosecu-
tions. In July 1982, Farmer was convicted in Nevada state
court of armed robbery and second degree kidnapping with
use of a deadly weapon in relation to an incident, known as
the Cobb robbery, that preceded both the Kane and Gelunas
murders. In February 1983, Farmer was convicted of first
degree murder and possession of a stolen vehicle in relation
to the Thomas Kane incident.
In March 1984, Farmer pleaded guilty to the Gelunas
charges of first degree murder with use of a deadly weapon
(a knife) and robbery with use of a deadly weapon. The state
filed a notice of intent to seek the death penalty for the
Gelunas murder. In its notice, the state sought the death pen-
alty on the basis of the following aggravating circumstances
listed in the applicable Nevada statute:1 1) the Gelunas murder
was committed by a person who was previously convicted of
another murder or of a felony involving the use or threat of
violence to the person of another—specifically, the Cobb rob-
bery (hereinafter, the “prior conviction aggravating circum-
stance”); 2) the Gelunas murder was committed by a person
who was engaged, or was an accomplice, in the commission
of or an attempt to commit robbery and burglary (hereinafter
the “felony murder aggravating circumstances”); 3) the
Gelunas murder involved torture, depravity of mind, or the
mutilation of the victim; and 4) the Gelunas murder was com-
mitted by a person under sentence of imprisonment.
Under then-existing Nevada law, the capital sentencing
proceeding occurred before a three-judge panel.2 See Nev.
1
Nev. Rev. Stat. 200.033 (1985).
2
Nevada’s procedure for capital sentencing in effect in 1984 would
today be considered unconstitutional, because Ring v. Arizona held that
1256 FARMER v. MCDANIEL
Rev. Stat. 175.552 (1985). After presenting the state’s case at
the penalty hearing, the prosecutor suggested to the court that
“in [his] opinion” the prior conviction aggravating circum-
stance (notice of intent #1, above) probably did not apply
because, even though the crimes leading to those convictions
had occurred prior to the Gelunas murder, the actual convic-
tions in the Cobb robbery (July 1982) and the Kane murder
(February 1983) were not entered until after the Gelunas mur-
der (January 1982). However, the prosecutor did not remove
that charge, stating that “His Honors can determine that for
theirselves [sic].”3 The prosecutor also expressed some reser-
vations about the applicability of the “torture, depravity of
mind, or mutilation” (notice of intent #3, above) and “under
sentence of imprisonment” (notice of intent #4, above) aggra-
vating circumstances, but those aggravating circumstances
were nonetheless submitted to the three-judge panel for deter-
mination.
After deliberating, the sentencing panel found two aggra-
vating circumstances beyond a reasonable doubt, both of
which were felony murder aggravating circumstances (notice
of intent #2, above): (1) the Gelunas murder had been com-
mitted during the commission of a robbery, and (2) the
Gelunas murder had been committed during the commission
of a burglary. The panel found no mitigating circumstances
the Sixth Amendment requires aggravating circumstances, in a murder
case in which the death penalty may be imposed, to be found by a jury.
536 U.S. 584, 609 (2002). However, the Supreme Court later held that
Ring was not to be applied retroactively. Schriro v. Summerlin, 542 U.S.
348, 358 (2004).
3
In 1985, after the events at issue here, the Nevada Supreme Court clari-
fied that the relevant time trigger for the “prior conviction aggravating cir-
cumstances” was that the prior felony convictions had to occur by “the
time of the introduction of that evidence in the penalty phase of the pres-
ent proceeding,” and therefore did not have to be final at the time of the
commission of the murder being prosecuted. Gallego v. State, 711 P.2d
856, 864 (Nev. 1985). As we discuss below, that meant that Farmer’s prior
convictions could indeed have been considered by the sentencer.
FARMER v. MCDANIEL 1257
and imposed the death penalty. The sentencing panel’s written
decision is silent as to any conclusions or findings by the
panel with respect of the remaining aggravating circum-
stances submitted by the prosecution.
Farmer’s convictions and sentence were upheld on direct
appeal by the Nevada Supreme Court, and years of post con-
viction proceedings followed. Then, in 2004, the Nevada
Supreme Court decided McConnell v. State, 102 P.3d 606(Nev. 2004), which held that it was “impermissible under the
United States and Nevada Constitutions to base an aggravat-
ing circumstance in a capital prosecution on the felony upon
which a felony murder is predicated.” Id. at 624.4 The Nevada
Supreme Court subsequently determined that McConnell
applied retroactively. Bejarano v. State, 146 P.3d 265, 268
(Nev. 2006). Farmer petitioned in state court for vacatur of his
death sentence on the grounds that the sole aggravating cir-
cumstances found by the sentencing panel—two felony mur-
der aggravating circumstances—were constitutionally
impermissible circumstances on which to base a death sen-
tence. The state conceded Farmer was entitled to relief, and
his death sentence was vacated.
One month later, in the Nevada trial court, the state filed a
new notice of intent to seek the death penalty which, as the
state describes it, “does not add any additional aggravating
circumstances to those identified in the original notice,” but
merely “provide[s] greater specificity . . . to the original
notice.” The renewed notice charges Farmer with three prior
conviction aggravating circumstances: that 1) “the murder
was committed by a person who was previously convicted of
another murder,” citing the conviction arising from the Kane
4
In McConnell, the Nevada Supreme Court held that allowing the impo-
sition of a death sentence based solely on the presence of a felony murder
aggravator did not “ ‘genuinely narrow the class of persons eligible for the
death penalty’ ” and therefore was unconstitutional. 102 P.3d at 620 (quot-
ing Zant v. Stephens, 462 U.S. 862, 877 (1983)).
1258 FARMER v. MCDANIEL
murder; 2) “the murder was committed by a person who was
previously convicted of a felony involving the use or threat of
violence to the person of another,” citing a robbery conviction
arising from the Cobb crime; and 3) “the murder was commit-
ted by a person who was previously convicted of a felony
involving the use or threat of violence to the person of anoth-
er,” citing a kidnapping conviction arising from the Cobb
crime.
Farmer filed a motion to strike the state’s amended notice,
contending that a retrial on the same aggravating circum-
stances contained in the original notice would violate the
Double Jeopardy Clause. Farmer contended that, since the
original three-judge sentencing panel found only the murder-
committed-during-a-felony aggravating circumstances beyond
a reasonable doubt, it had impliedly acquitted him of all other
aggravating circumstances laid in the death penalty notice
used in the 1984 trial. Since the state cannot re-litigate facts
already decided by a factfinder, and since the sole aggravating
circumstances found in 1984 were invalid, Farmer contended
that he could no longer be subjected to the death penalty.
The state trial court denied the motion without opinion. On
appeal, the Nevada Supreme Court affirmed in a brief opin-
ion. In so doing, the Nevada Supreme Court stated that “Far-
mer’s original penalty hearing did not result in an acquittal of
the death penalty, and only due to a misconstruction of the
law did the sentencing panel decline to consider the same
prior-violent-felony aggravating circumstances upon which
the state relies in pursuing the death penalty in the new pen-
alty hearing.” The Nevada Supreme Court did not explain
how the original sentencing panel had misconstrued the law
on this issue, but the Nevada Supreme Court presumably
referred to the question whether the sentencing panel could
have considered prior conviction aggravating circumstances
in Farmer’s case. As explained above at note 3, at the time of
Farmer’s sentencing, Nevada law was unsettled as to whether
qualifying previous convictions had to be rendered and final
FARMER v. MCDANIEL 1259
before the subject murder was committed or merely before
sentencing. In 1985, however, the Nevada Supreme Court
clarified that the relevant time trigger was that the prior felony
convictions had to occur by “the time of the introduction of
that evidence in the penalty phase of the present proceeding.”
Gallego v. State, 711 P.2d 856, 864 (Nev. 1985). The Gallego
decision, which was issued after the three-judge sentencing
panel’s decision in this case, meant that Farmer’s prior con-
victions in fact could have been considered by Farmer’s origi-
nal sentencing panel, for all such convictions had been
rendered and were final before Farmer was sentenced for his
murder of Gelunas.
Following the Nevada Supreme Court’s decision, Farmer
filed a petition for habeas corpus in federal district court
under 28 U.S.C. § 2241. The district court denied relief. Far-
mer timely appealed, and we now affirm.
II.
Because Farmer is in custody under a sentence of life in
prison but attacks a sentence which has not yet been imposed
—the possibility of another death sentence—this petition was
properly filed under 28 U.S.C. § 2241, and the state court’s
decision is reviewed de novo. Harrison v. Gillespie, 640 F.3d
888, 896 (9th Cir. 2011) (en banc), cert. pet. filed as No. 11-
168. The state contends that the standard of review issue in
Harrison was incorrectly decided and the state court’s deci-
sion is entitled to the more deferential standard of review cre-
ated by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) and codified at 28 U.S.C. § 2254(d), but, for
now, we are bound by Harrison. In any event, because we
affirm the denial of habeas on de novo review, the outcome
would necessarily be the same even under a more deferential
standard.5
5
In a footnote, the state also contends that Farmer should be “required
to comply with the procedural rules applicable to habeas petitions under
1260 FARMER v. MCDANIEL
III.
This case turns on the legal significance of the three-judge
sentencing panel’s silence as to the prior conviction aggravat-
ing circumstances charged by the prosecution in 1984, but not
found by the three-judge panel. If that silence means that Far-
mer was “impliedly acquitted” of these “elements” of capital
murder, as Farmer contends, then another attempt to procure
a death sentence would be barred by the Double Jeopardy
Clause. If there was no such implied acquittal, then the state
may proceed in its second attempt to seek a death sentence.
The question is novel in this circuit. We hold that the sentenc-
ing panel’s silence as to certain aggravating circumstances in
the 1984 death sentence did not “impliedly acquit” Farmer of
those aggravating circumstances. Therefore, the state constitu-
tionally may attempt once again to impose the death penalty,
if it decides that justice so requires.
A.
[1] The Double Jeopardy Clause of the Fifth Amendment
provides that no person shall “be subject for the same offence
to be twice put in jeopardy of life or limb.” U.S. Const.
28 U.S.C. § 2254.” The state argued below that Farmer failed to comply
with some of these requirements, such as the statute of limitations, exhaus-
tion, and the prohibition against second or successive petitions, but the
district court did not rule on these arguments. The state tells us that it “ex-
pressly state[s] that [it] do[es] not waive any of AEDPA’s procedural
requirements.”
The state’s supposed “express statement” of preservation does it no
good. This court “review[s] only issues which are argued specifically and
distinctly in a party’s opening brief”; the court does not “manufacture
arguments . . . , and a bare assertion does not preserve a claim.” Green-
wood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Because the state does not
make any arguments on appeal as to why the petition may be barred on
the basis of these “procedural requirements,” those arguments are in fact
waived for the purposes of this appeal, and we address only the core dou-
ble jeopardy question in this opinion.
FARMER v. MCDANIEL 1261
amend. V. The protections of the Clause extend not only to
questions of guilt or innocence but also to capital sentencing
proceedings that operate “like [a] trial on the question of guilt
or innocence” by “explicitly requir[ing] the jury to determine
whether the prosecution has ‘proved its case.’ ” Bullington v.
Missouri, 451 U.S. 430, 444-46 (1981).
Farmer’s “implied acquittal” theory was first described by
the Supreme Court in 1957 in Green v. United States, 355
U.S. 184 (1957). In that case, the defendant was charged with
both first-degree murder and the lesser included offense of
second-degree murder. Id. at 186. At his first trial on charges
of both degrees of murder, the jury found the defendant guilty
only of second-degree murder but “was silent on [the] charge”
of first-degree murder. Id. The defendant appealed, and the
appellate court reversed his conviction. Id. On retrial, the
prosecution again charged first degree murder, but this time
the jury convicted on that charge, and the defendant was sen-
tenced to death. Id. The Supreme Court held that the outcome
of the first trial was “an implicit acquittal on the charge of
first degree murder.” Id. at 190. The Court noted that “the jury
was dismissed without returning any express verdict on that
[first-degree] charge and without [the defendant’s] consent.”
Id. at 191. But because the jury “was given a full opportunity
to return a verdict and no extraordinary circumstances
appeared which prevented it from doing so . . . [the defen-
dant’s] jeopardy for first degree murder came to an end when
the jury was discharged so that he could not be retried for that
offense.” Id.In a later trio of double jeopardy cases, the Supreme Court
addressed double jeopardy consequences in cases of capital
sentencing. In Bullington v. Missouri, 451 U.S. 430 (1981),
the Court held that a defendant acquitted of the death penalty
by a sentencing jury following the defendant’s first trial may
not again be subjected to the death penalty at retrial, regard-
less the reason for the acquittal. Id. at 446. Three years later,
in Arizona v. Rumsey, 467 U.S. 203 (1984), the Supreme
1262 FARMER v. MCDANIEL
Court extended these double jeopardy protections to sentenc-
ing decisions made by judges after trial-like procedures,
which procedures included the requirements that evidence be
submitted according to “the usual rules of evidence” and that
the state must prove the existence of any aggravating circum-
stance beyond a reasonable doubt. Id. at 210. The Rumsey
Court also held that the fact that the sentencing tribunal in that
case had acquitted on the basis of a legal misunderstanding
“does not change the double jeopardy effects of a judgment
that amounts to an acquittal on the merits.” Id. at 211.
The Supreme Court limited Bullington and Rumsey in
Poland v. Arizona, 476 U.S. 147 (1986), the case most analo-
gous to Farmer’s. In Poland, the defendants were convicted
of first-degree murder. Id. at 149. The trial judge alone
imposed the death sentence—a sentencing procedure which,
as mentioned above at note 2, was valid at the time, but is no
longer constitutional after Ring v. Arizona. The prosecution in
Poland had charged two aggravating circumstances, but the
trial judge found only one present: that the murder was com-
mitted in an “especially heinous, cruel or depraved manner.”
Id. The trial judge expressly found that the other charged
aggravating circumstances—that the crime was committed “as
consideration for the receipt . . . of [something] of pecuniary
value”—was unavailable to the state as a matter of law
because “the legislative intent was to cover a contract killing,”
but the Poland murders occurred during a bank robbery. Id.(internal quotation marks omitted). The Arizona Supreme
Court reversed the death sentence because there was insuffi-
cient evidence to find the “heinousness” aggravating circum-
stance, but it also held that the trial court had misconstrued
the “pecuniary gain” aggravating circumstance, which in fact
was “not limited to situations involving contract killings.” Id.
at 150. On remand from the Arizona Supreme Court’s deci-
sion, the Poland defendants were again subjected to a death
penalty sentencing hearing and were re-sentenced to death
after the trial judge this time found the pecuniary gain aggra-
vator, properly construed, was present.
FARMER v. MCDANIEL 1263
The Supreme Court held the Double Jeopardy Clause was
not violated by this procedure and affirmed the death sen-
tence. Id. at 157. In so doing, the Court stated that Poland dif-
fered from Bullington and Rumsey because “[a]t no point
during [the defendants’] first capital sentencing hearing and
appeal did either the sentencer or the reviewing court hold
that the prosecution had failed to prove its case that petition-
ers deserved the death penalty.” Id. at 154 (internal quotation
marks omitted). The Court rejected the view that “the capital
sentencer should be seen as rendering a series of mini-verdicts
on each aggravating circumstance.” Id. at 153 n.3.
[2] This trio of capital double jeopardy cases sets the fol-
lowing boundaries: Bullington and Rumsey show that when,
in the first sentencing proceeding, a capital sentencer acquits
entirely of the death penalty for any reason, the state may
never again seek the death penalty. By contrast, Poland shows
that where the initial sentencer in fact imposes the death pen-
alty, the state can again seek the death penalty on another
basis even if the sole basis for the initial death sentence was
held invalid.
B.
[3] Ours is a situation virtually identical to that in Poland:
the original capital sentencer imposed the death penalty, and
the two aggravating circumstances found by that sentencer as
a basis for the sentence were later invalidated. The state now
seeks to reimpose the death sentence, but based on different
aggravating circumstances. Because Farmer had a death sen-
tence imposed initially, the analysis is governed by Poland
and not Bullington and Ramsey, and the Double Jeopardy
Clause is no bar to the state’s renewed attempt to impose the
death penalty.
Farmer’s attempt to distinguish Poland is energetic but ulti-
mately unavailing. Farmer notes that, in Poland, the state trial
court made a legal ruling that the “pecuniary gain” aggravat-
1264 FARMER v. MCDANIEL
ing circumstance was not applicable, which legal ruling the
Arizona Supreme Court held to be erroneous. 476 U.S. at
149-50. On remand, the sentencer of the Poland defendants,
now applying the correct Arizona law regarding what consti-
tutes a “pecuniary gain” aggravating circumstance, found that
it did apply, and reimposed the death penalty on that basis. Id.Farmer contends that his situation is distinguishable: neither
his state trial judge nor his three-judge sentencing panel made
any legal ruling on the record that the prior conviction aggra-
vating circumstances did not apply in his case. Rather, Farmer
states that, in its role as fact-finder, the three-judge panel
refused to find factually the non-felony aggravating circum-
stances, which did not involve felony murder elements, with-
out explanation. He contends that these omissions amounted
to an implied acquittal of those other aggravating circum-
stances charged, including the prior conviction aggravating
circumstances.
But Farmer’s account of why the original three-judge panel
failed to find the prior conviction aggravating circumstances
is contradicted by the opinion of the Nevada Supreme Court,
an opinion to which we must defer on both matters of fact and
of state law.6 See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
The Nevada Supreme Court in this case stated that “only due
to a misconstruction of the law did the sentencing panel
decline to consider the same prior-violent-felony aggravating
circumstances upon which the State relies in pursuing the
death penalty in the new penalty hearing.” Thus, the Nevada
Supreme Court tells us that the three-judge sentencing panel
6
Even without according the deference required by AEDPA, state court
findings of facts are entitled to a “presumption of correctness.” Hoyle v.
Ada Cnty., 501 F.3d 1053, 1059 (9th Cir. 2007). Further, “it is not the
province of a federal habeas court to reexamine state-court determinations
on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Thus, whether the Nevada Supreme Court’s determination that the original
sentencing panel’s silence as to the prior conviction aggravating circum-
stances was due to a legal misunderstanding is characterized as a finding
of fact or an interpretation of state law, we defer to it.
FARMER v. MCDANIEL 1265
was silent on the prior conviction aggravating circumstances
(notices of intent #1 and #4, above) because the sentencing
panel declined to consider those prior convictions in light of
the legal uncertainty surrounding them—an uncertainty later
clarified by the Nevada Supreme Court’s Gallego decision in
a way that allows the state to use those aggravating circum-
stances for sentencing purposes in this case. This case is
therefore indistinguishable from Poland. Hence, we need not
decide whether the distinction Farmer attempts to draw
between acquittals for “factual” reasons or “legal” reasons has
any legal significance. His case does not present that issue.
C.
In the alternative, Farmer asks us to hold that Poland is no
longer good law after Ring v. Arizona, 536 U.S. 584 (2002),
which held that the aggravating circumstances required to be
found to impose a death sentence must be found by a jury. Id.
at 609. Farmer rightly observes that, after Ring, the presence
of aggravating circumstances must be interpreted as an “ele-
ment” of the distinct crime of capital murder. Farmer con-
tends that, so construed, the panel’s failure to return a verdict
on the prior conviction aggravating circumstances must be
interpreted as: “ ‘We find the defendant not guilty of [murder
plus the prior conviction aggravating circumstances] but
guilty of the [murder plus felony murder aggravating circum-
stances].’ ” Appellant’s Br. 16 (quoting Green, 355 U.S. at
191) (brackets in brief). This interpretation is required, Far-
mer claims, because Ring and its progeny “represent a funda-
mental doctrinal shift” away from the analysis in Poland. Id.
at 19. If this is the proper interpretation, Farmer contends that
the Double Jeopardy Clause would bar retrial.
To be sure, the aspect of Poland that allows for aggravating
circumstances to be found by the trial judge and not a jury is,
today, an anachronism. But while the Supreme Court has
acknowledged that the understanding of sentencing contained
in the Bullington/Rumsey/Poland line of cases has been
1266 FARMER v. MCDANIEL
altered by more recent Sixth Amendment decisions, the
Court’s only decision since Ring to cite Poland reaffirmed
that under “the Bullington line of cases . . . the touchstone for
double-jeopardy protection in capital-sentencing proceedings
is whether there has been an ‘acquittal.’ ” Sattazahn v. Penn-
sylvania, 537 U.S. 101, 109 (2003). The core of Poland thus
remains valid: if there was no acquittal of the death penalty,
a sentence of death may be reimposed on grounds valid at the
time of original sentencing. In any event, neither Poland’s
core principle nor the holding itself has been overruled by the
Supreme Court, and “it is [the Supreme] Court’s prerogative
alone to overrule one of its precedents.” State Oil Co. v.
Khan, 522 U.S. 3, 20 (1997). We follow Poland, as we must.
[4] Moreover, Ring v. Arizona and subsequent cases have
not altered the legal significance of capital aggravating cir-
cumstances in the drastic way that Farmer contends they have.
Under then-existing Nevada law, and as is still the case today,
the capital sentencer considers whether particular mitigating
and aggravating circumstances exist. Nev. Rev. Stat.
175.554(2) (1985). The sentencer may then impose a sentence
of death “only if it finds at least one aggravating circumstance
and further finds that there are no mitigating circumstances
sufficient to outweigh the aggravating circumstance or cir-
cumstances found.” Id. Thus, in cases such as Farmer’s,
where no mitigating circumstances were found to exist, the
presence of any aggravating circumstance would provide an
independent and sufficient ground for imposing a sentence of
death. It would therefore be a logical leap to assume that a
sentencer’s silence on a second, third, or fourth charged
aggravating circumstance means that the sentencer has “ac-
quitted” the defendant of those aggravating circumstances.
The sentencer may well have simply refrained from consider-
ing the additional aggravating circumstances, since to do so
would have been unnecessary to the outcome. Indeed, accord-
ing to the Nevada Supreme Court, that is precisely what
occurred here.
FARMER v. MCDANIEL 1267
[5] The logic of Ring and its progeny do not change this
analysis. Those cases do not force us to conclude that the
prior conviction aggravating circumstances are “lesser-
included element[s] of capital murder, and by not finding their
existence, the three-judge panel impliedly acquitted Mr. Far-
mer of this element.” Appellant’s Br. 17. Instead, the section
of the Court’s opinion in Ring cited by Farmer supports the
contrary conclusion. In Ring, the Supreme Court said that
because “enumerated aggravating factors operate as ‘the func-
tional equivalent of an element of a greater offense,’ the Sixth
Amendment requires that they be found by a jury.” Ring, 536
U.S. at 609 (quoting Apprendi v. New Jersey, 530 U.S. 466,
494 n.19 (2000)). Notice that the Court referred to “aggravat-
ing factors”—with “factors” in the plural—as “an element of
a greater offense.” This implies that it is the outcome of a sen-
tencer’s balancing of independent aggravating and mitigating
circumstances that constitute the one element of the greater
offense of capital murder. That concept contradicts Farmer’s
idea that a sentencer’s decisions as to the existence of each
aggravating circumstance are done as separate mini-trials and
that silence as to any charged aggravating circumstance
implies acquittal on that aggravating circumstance. Thus,
when a sentencer has already found the presence of an aggra-
vating circumstance sufficient to impose a death sentence, its
silence as to other aggravating circumstances does not carry
with it any implication of rejection of the unmentioned aggra-
vating circumstances. Here, silence is just silence.
***
[6] Under Poland, the outcome of this case is straightfor-
ward. Farmer was not acquitted of a death sentence in his ini-
tial capital sentencing proceedings, and so the state’s renewed
attempt to seek a death sentence on grounds present in his
first sentencing, but neither accepted nor rejected, is not
barred by the Double Jeopardy Clause. Despite Farmer’s con-
tentions, nothing in subsequent Supreme Court jurisprudence
1268 FARMER v. MCDANIEL
alters this conclusion. We therefore AFFIRM the district
court’s denial of Farmer’s habeas petition.