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Saulsberry v. Lee

United States Court of Appeals, Sixth Circuit

August 30, 2019

Antonio L. Saulsberry, Petitioner-Appellant,
v.
Randy Lee, Warden, Respondent-Appellee.

          Argued: March 14, 2019

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:07-cv-02751-Jon Phipps McCalla, District Judge.

         ARGUED:

          Joshua M. Koppel, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellant.

          Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

         ON BRIEF:

          Joshua M. Koppel, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellant.

          Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

          Before: SUTTON, WHITE, and DONALD, Circuit Judges.

          SUTTON, J., delivered an opinion and the judgment of the court. WHITE, J. (pg. 10), delivered a separate opinion concurring in the judgment. DONALD, J. (pp. 11-14), delivered a separate dissenting opinion.

          OPINION

          SUTTON, CIRCUIT JUDGE.

         This tale of two trials began when Tennessee charged Antonio Saulsberry with (1) premeditated murder and (2) two counts of felony murder. The first jury convicted him of premeditated murder and did not return a verdict on the two felony murder counts, all consistent with the court's instructions to consider the felony murder counts only if it acquitted Saulsberry of premeditated murder. The state appellate court reversed Saulsberry's premeditated murder conviction and remanded for a second trial solely on the two felony murder counts. The second jury convicted Saulsberry on both felony murder counts, and he received a life sentence. He filed a federal habeas petition challenging his retrial on double jeopardy grounds. The district court denied the petition, and we affirm.

         I.

         In 1995, the manager of a Memphis restaurant was murdered during a closing-time robbery. Saulsberry worked at the restaurant and helped to plan the robbery. But he was not there during the robbery or when the restaurant's manager was shot and killed.

         In 1997, Saulsberry went to trial in state court. In addition to a robbery count and a conspiracy count, he faced three counts of first-degree murder-premeditated murder, murder during a robbery, and murder during a burglary-all distinct offenses in Tennessee. The trial court forbade the jury from considering the murder counts together. Only if the jury found Saulsberry not guilty of premeditated murder could it "proceed to inquire whether [he is] guilty of [either count of felony murder]." R. 68-13 at 43.

         The jury convicted Saulsberry of premeditated murder as well as robbery and conspiracy. He received a life sentence for the first conviction plus fifty years for the others. In line with the court's instructions, the jury did not return a verdict on the two felony murder counts.

         The Tennessee Court of Criminal Appeals affirmed Saulsberry's robbery and conspiracy convictions. But it reversed the murder conviction for insufficient evidence. The court remanded the case for a retrial on the two felony murder counts. State v. Saulsberry, No. 02C01-9710-CR-00406, 1998 WL 892281, at *6 (Tenn. Crim. App. Dec. 21, 1998). Saulsberry moved to dismiss the new prosecution on double jeopardy grounds, but the state courts rejected the argument. In 2010, a new jury convicted him of both counts of felony murder, and the trial court sentenced him to life in prison. State v. Saulsberry, No. W2010-01326-CCA-R3-CD, 2011 WL 1327664, at *1 (Tenn. Crim. App. Apr. 7, 2011). Saulsberry's direct appeal and applications for state post-conviction relief failed.

         In 2007, Saulsberry filed an uncounseled § 2254 petition while awaiting retrial in Tennessee, arguing that the second trial for felony murder would violate the Double Jeopardy Clause. After more twists and turns, none relevant here, the district court denied Saulsberry's amended, ...


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