State Habeas Petitioner's Right to Due Process Were Violated

Jackson v. Whetsel, 2010 WL 2881518 (7/22/10) (unpub'd) - Victory for an accused in a habeas case. The Oklahoma Court of Criminal Appeals ("OCCA") violated the petitioner's right to due process when it held there was insufficient evidence to support the defendant's conviction for making an indecent proposal to a minor to have sexual relations with another person [when the petitioner only asked her to touch herself], but ordered the trial court to convict the petitioner of soliciting the minor to perform obscene acts. The new offense was not a lesser-included offense of the charged offense and so the OCCA had unconstitutionally convicted the petitioner of an offense concerning which he had not been tried. The petitioner did not have to go back to state court to exhaust his claim because the OCCA had already decided the issue he raised and the lower courts could not disagree with the highest criminal court in Oklahoma. The 10th refused to hold that any retrial would violate the Double Jeopardy Clause because it did not have particular factual allegations to compare to the original charge and trial. Once the state has charged the petitioner, he may have the right to pursue federal habeas remedies before his state trial begins.