In a capital habeas matter, a denial of the habeas petition is affirmed where: 1) there was no Supreme Court authority clearly establishing the proper reconciliation of the competing double-jeopardy principles at issue, which was fatal to his claim; and 2) it was neither arbitrary nor capricious for a state court of appeals to retain and exercise its customary appellate authority to correct the trial court's error in the event the trial court failed to take the required action.
Filed February 12, 2010
Opinion by Judge Hartz
Jonathan S. Willett, Denver, CO
Matthew T. Kirsch and James C. Murphy, Assistant United States Attorneys, Denver, CO