FACTUAL BACKGROUND

On September 15, 1975, a U-Tote-M store in Tulsa, Oklahoma, was robbed. One of the store employees, Clayton Chandler, was shot to death and the other, Ina Morris, was shot and wounded. Selsor and Dodson were arrested for the robbery and shootings. Selsor was charged in state court with robbery with firearms in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Dodson was charged with robbery with firearms, after former conviction of a felony in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill, after former conviction of a felony in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Selsor and Dodson were tried together and were both jointly represented by the same two public defenders from the same office. One attorney conducted both defenses while the other attorney supervised that attorney. Selsor v. Kaiser, 22 F.3d 1029, 1031 (10th Cir.1994) (Selsor I ).

At trial Ina Morris, the U-Tote-M employee wounded in the robbery, testified about the ordeal. She stated that she had gone into the store’s walk-in cooler, and that while in there “[a] man walked up to the first window [of the cooler] and opened it up and looked at me.” State Tr. at 183. She said the man then walked around to the big walk-in door and pointed a revolver at her. Id. at 184, 186. He told her to get on her knees on the floor. Id. at 186. She testified that she “just looked at him” because she “couldn’t believe it.” Id. She said to the gunman “You’ve got to be kidding.” Id. The gunman then fired a shot at her, hitting her in the right shoulder. State Tr. at 187. She got down on her knees. The gunman told her that if she looked up he would kill her. Id. at 188. Three to five minutes later Morris raised her head and saw the gunman standing outside the window, holding both hands on the gun. Id. at 190-91. She then saw him pull the trigger and heard the bullets hit the window. She ducked. Id. at 191. She heard more than two bullets fired. Her body went numb. Id. at 192. She lay down and lost consciousness. She was wounded in her right shoulder, on the right side of the back of her head, on top of her head, underneath her jaw, in her back and in her neck. Id. at 199. Two bullets were left in her neck. Id. Morris regained consciousness approximately five to seven minutes later. State Tr. at 193. She walked north in the cooler and looked out to see Clayton Chandler lying on the floor of the U-Tote-M. Id. at 194. Mr. Chandler died as a result of his injuries.

Morris identified Dodson as the man who shot her. Id. at 204. She gave no testimony about seeing any assailant other than Dodson, nor did she testify that she heard any shots other than those from Dodson. She did state, however, that the door to the walk-in cooler was closed and that she heard the cooler fan, a noise she described as “[v]ery loud.” Id. at 189.

Ms. Morris was the only eyewitness to the crime and her testimony did not implicate Selsor. The evidence against Selsor instead was based on his and Dodson’s confessions as presented through the testimony of two police officers, Officer Evans, a major crimes investigator for the Santa Barbara, California Police Department, and Officer Roberts of the Tulsa Police Department.

Officer Evans testified that on September 22, 1975, he and a Sergeant Williams interviewed Dodson at the Santa Barbara Police Department. State Tr. at 238. Officer Evans testified that

[Dodson] stated that he and Mr. Selsor were driving a green ’67 Pontiac…. He stated that they had been together in this car on the evening of September 15th around 11:00 P.M. and had passed by this U-TOTE-M store which he thought was located at 66th and 33rd, in that vicinity. He stated that both of them were in the car as they passed by this store a couple of times and Mr. Dodson stated that he noticed that the traffic was light around the store and the outlying area and that there was a light fog or something. He then stated that they both were armed.

….

Q And, what did he say in that regard?

A Mr. Dodson was armed with a nine shot .22 caliber revolver, black and silver and Mr. Selsor was armed with a .22 automatic Lugger Blackhawk.

Q Now, did he say anything in regard to any plan concerning this matter on 33rd West Avenue other than what you have thus far related?

A Yes, he did.

Q What did he say in that regard?

A He stated that prior to entering the store in a conversation with Mr. Selsor there was discussion of taking these people out.

….

Q Did he ever indicate in the conversation what he meant by taking them out?

A Later in the conversation it was shown that taking them out meant killing them.

Q And, when you use the expression, taking these people out, did you know at the time he told you this who he had reference to?

A By name or incident?

Q Well, by perhaps position with the store?

A Yes, meaning the proprietors of the store.

source: http://federal-circuits.vlex.com

In January 1976, in the state district court for Tulsa County, Oklahoma, Petitioner and Richard Dodson, a codefendant, were tried jointly on charges of murder in the first degree–i.e., a homicide perpetrated in the commission of an armed robbery (felony murder), the underlying felony of armed robbery, and shooting with an intent to kill. Petitioner and Dodson were represented by the same counsel. Petitioner was convicted on all three counts and was sentenced to death on the murder charge, twenty-five years imprisonment on the armed robbery conviction, and twenty years imprisonment on the shooting with intent to kill charge. Dodson was acquitted on the murder charge, but convicted on the other two charges.

Petitioner’s convictions were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals, although the court modified Petitioner’s death sentence on the murder charge to life imprisonment, holding that Oklahoma’s death penalty statute was unconstitutional. See Selsor v. State, 562 P.2d 926 (Okla.Crim.App.1977). In his direct appeal, Petitioner alleged, inter alia, that the trial court erred in failing to either grant a severance of his trial from Dodson’s trial or appoint separate counsel. Petitioner did not raise a double jeopardy issue in his direct appeal.

In November 1978, Petitioner filed an application for post-conviction relief, Okla.Stat.Ann. tit. 22, Sec. 1080 (West 1986), in the state district court in Tulsa, Oklahoma. In that application the only issue Petitioner raised was that he had been denied his Sixth Amendment right to effective assistance of counsel because the trial court refused to sever the trials or appoint separate counsel for Petitioner and Dodson. Petitioner did not raise a double jeopardy issue in this post-conviction application. The state district court denied Petitioner’s application in February 1980, and the denial was later affirmed by the Oklahoma Court of Criminal Appeals in an unpublished order.

In July 1989, Petitioner filed a second application for post-conviction relief in the state district court in Tulsa, Oklahoma, alleging for the first time that he had been punished in violation of the Double Jeopardy Clause of the Fifth Amendment when he was convicted and sentenced for both the charge of felony murder and the underlying felony of armed robbery. The state district court denied that application on the ground that Petitioner failed to raise the double jeopardy claim in the trial court, on direct appeal, or in his first application for post-conviction relief; therefore, the court held, under Oklahoma law, the claim was waived. In an unpublished order, the Oklahoma Court of Criminal Appeals affirmed the denial, holding that all issues previously ruled upon by the Oklahoma Court of Criminal Appeals were res judicata, and that Petitioner had waived all issues raised for the first time in his second petition for post-conviction relief. See Okla.Stat.Ann. tit. 22, Sec. 1086 (West 1986).

In October 1991, Petitioner, appearing pro se, filed the present petition for relief pursuant to Sec. 2254 in the United States District Court for the Western District of Oklahoma. In this petition, Petitioner raised the following two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney’s conflict of interest–i.e., the same attorney represented both Petitioner and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony–i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment. Respondent filed a motion to dismiss the petition for failure to exhaust state remedies as to Petitioner’s claim of ineffective assistance of counsel.

On December 4, 1992, the district court denied Petitioner’s petition. The district court did not grant Respondent’s motion to dismiss for failure to exhaust. Instead, the district court addressed the merits of Petitioner’s ineffective assistance of counsel claim and concluded that Petitioner was not entitled to relief. The court also found that Petitioner was procedurally barred from raising his double jeopardy claim. Finally, the district court concluded that refusing to entertain Petitioner’s double jeopardy claim would not result in a fundamental miscarriage of justice. Petitioner appeals the district court’s denial of his petition.

In this court, Petitioner filed his initial brief pro se. Thereafter, we entered an order appointing the Federal Public Defender for the District of Colorado to represent Petitioner on appeal.1

I.

Petitioner first contends that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel had a conflict of interest in that he represented both Petitioner and Dodson at trial. The district court apparently concluded that Petitioner had raised that particular issue in the state courts of Oklahoma and therefore had exhausted his state remedies.2 The district court rejected Petitioner’s claim of ineffective assistance of counsel on the merits, stating that Petitioner had not shown that any “conflict of interest,” resulting from trial counsel’s representation of both Petitioner and Dodson, had “actually affected” the “adequacy of [counsel’s] representation” of Petitioner.

Petitioner and Dodson were jointly represented at trial by two attorneys from the state public defender’s office, with one attorney conducting both defenses while the other attorney supervised that attorney. Petitioner and Dodson both entered pleas of not guilty. Prior to trial, counsel moved to sever the trials of Petitioner and Dodson, or appoint separate counsel for each, because of a possible conflict of interest. That motion was denied. On the day the case came up for trial, Dodson amended his plea to not guilty by reason of insanity, at which time counsel again moved for separate trials, or separate counsel, which motion was again denied.

At trial, the prosecution called an eye witness to the robbery and shooting, who gave her account of events. The prosecution also introduced confessions from both Petitioner and Dodson.3 After the prosecution rested, both defendants invoked their constitutional right not to testify. The only witness called by either defendant was Dr. Rustico Dizon Garcia, a forensic psychiatrist, who had examined Dodson. Although he was called on Dodson’s behalf, the doctor testified that he had no opinion as to whether Dodson was legally sane, or insane, at the time of the robbery and murder.

In rejecting Petitioner’s claim, the district court relied on the Supreme Court’s decision in Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980), in which the Court held that in order to demonstrate ineffective assistance of counsel, a defendant must establish that an “actual conflict of interest adversely affected his lawyer’s performance.” We conclude the district court’s reliance on Cuyler’s “actual conflict” standard was misplaced.

In Cuyler the defendant brought a Sec. 2254 petition for habeas relief based, in part, on an allegation that his two trial attorneys represented potentially conflicting interests in their joint representation of the defendant and two codefendants. Id. at 337-38, 100 S.Ct. at 1712-13. The defendant in Cuyler, however, did not object to the joint representation at trial. Id. Because of the defendant’s failure to object at trial, Cuyler concluded that the trial court had no duty to inquire about the possibility of a conflict of interest. Id. at 347, 100 S.Ct. at 1716. The Court also held that the defendant could not establish a Sixth Amendment violation based on a showing of a mere possibility of a conflict of interest; rather, the defendant must demonstrate an actual conflict. Id. at 348, 100 S.Ct. at 1718. The Court in Cuyler announced this “actual conflict” standard, however, by stating, “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. (emphasis added). This language makes it clear that the Cuyler “actual conflict” standard applies only in those cases in which the defendant fails to raise a conflict of interest objection at trial. See Hamilton v. Ford, 969 F.2d 1006 (11th Cir.1992) (“Cuyler is limited to those cases in which a defendant raises no objection to joint representation at trial”), cert. denied, — U.S. —-, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993); see also United States v. Martin, 965 F.2d 839, 841 (10th Cir.1992) (applying Cuyler actual conflict standard “[b]ecause defendant failed to raise a Sixth Amendment objection at trial”); United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990) (same). Because in the instant case, Petitioner vigorously objected to the joint representation at trial, Cuyler is inapplicable.

We conclude that the instant case is controlled by the Supreme Court’s holding in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In Holloway, one public defender represented three codefendants who were tried jointly. Id. at 477, 98 S.Ct. at 1175. Weeks before trial, counsel moved the court to appoint separate counsel for each defendant because “the defendants ha[d] stated to him that there is a possibility of a conflict of interest in each of their cases.” Id. After conducting a hearing on the motion, the court refused to appoint separate counsel. Id. Before the jury was empaneled, defense counsel renewed the motion for appointment of separate counsel, and again the court denied the motion. Id. at 478, 98 S.Ct. at 1175. Finally, at trial, after the prosecution had rested, defense counsel informed the court that all of the codefendants insisted on taking the stand, and as a result, he would be unable to represent all three because he could not effectively cross-examine any of them. Id. at 478-81, 98 S.Ct. at 1175-77. The court stated, inter alia, “[t]hat’s all right; let them testify. There is no conflict of interest.” Id. at 479, 98 S.Ct. at 1176. All three codefendants were eventually convicted. The Arkansas Supreme Court affirmed the convictions on the basis that the record demonstrated no actual conflict of interest or prejudice. Id. at 481, 98 S.Ct. at 1177.

Without ever reaching the issue of whether there was an actual conflict of interest, the Supreme Court reversed the convictions. Id. at 484, 98 S.Ct. at 1178. The Holloway Court determined that because defense counsel timely objected to the joint representation at trial, the trial court erred in failing to “either appoint separate counsel, or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Id. at 484, 98 S.Ct. at 1179. The Court determined that this failure deprived the defendants “of the guarantee of ‘assistance of counsel,’ ” id., and necessitated automatic reversal of the defendants’ convictions, id. at 487-91, 98 S.Ct. at 1180-82. Under the Holloway standard, the trial court’s failure to appoint separate counsel, or adequately inquire into the possibility of conflict, in the face of a timely objection by defense counsel, demonstrates ineffective assistance of counsel without a showing of actual conflict of interest. See id.; see also Hamilton, 969 F.2d at 1011 (“[W]hen defendants make timely objections to joint representation, they need not show an actual conflict of interest when a trial court fails to inquire adequately into the basis of the objection.”). In this situation, prejudice to the defendant is presumed. See 435 U.S. at 489, 98 S.Ct. at 1181 (“[P]rejudice is presumed regardless of whether it was independently shown.”); Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718 (“But unless the trial court fails to afford [ ] an opportunity [to show that potential conflicts imperil his right to a fair trial], a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel.”); see also United States v. Sutton, 794 F.2d 1415, 1419 (9th Cir.1986) (“Thus, whenever a trial court improperly requires joint representation over timely objection based on possible conflicting interests, prejudice is presumed and reversal is automatic.”).

Although Respondent does not raise the issue, we believe it is appropriate to state our conclusion that Holloway comports with the Supreme Court’s later holding in Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). In Strickland, the Court held that to set aside a judgment based on ineffective assistance of counsel, the defendant must demonstrate prejudice. See id. at 668, 104 S.Ct. at 2052. The Court also stated that for purposes of conflict of interest, “[p]rejudice is presumed only if the defendant demonstrates that [ ] ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” 466 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718). Despite its restrictiveness, we do not interpret this language as evidencing an intention on the part of the Supreme Court to overrule its earlier pronouncement in Holloway that prejudice is presumed without a showing of actual conflict when a defendant makes a timely objection to joint representation and the trial court fails to inquire adequately into the basis of the objection. Strickland specifically stated that a “fairly rigid rule of presumed prejudice for conflicts of interest” is reasonable given the obligation of counsel to avoid conflicts and the “ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts.” 466 U.S. at 692, 104 S.Ct. at 2067. Thus, Strickland’s requirement of a showing of actual conflict presupposes that trial courts conduct an appropriate inquiry when the defendant properly raises the issue. Holloway, however, addresses the situation where the trial court fails to make such inquiry in the face of the defendant’s timely objection. As a result, the Strickland rule requiring a defendant to demonstrate an actual conflict of interest in order to obtain a presumption of prejudice is inapplicable to a Holloway-type case. We therefore conclude the holding in Holloway–i.e., that prejudice is presumed when the trial court fails to either appoint separate counsel or make an adequate inquiry, in the face of the defendant’s timely objection–satisfies Strickland’s prejudice requirement without a showing of actual conflict.

Having determined that the district court applied the incorrect legal standard in the instant case, we remand for its reconsideration in light of Holloway. On remand, the district court must determine whether: (1) Petitioner’s objection at trial to the joint representation was timely, and, if so, (2) whether the trial court took “adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel.” See Holloway, 435 U.S. at 484, 98 S.Ct. at 1178.

II.

Petitioner’s second ground for relief in his Sec. 2254 petition is that he was placed in double jeopardy by being punished both for felony murder and the underlying felony. The district court agreed that there was a double jeopardy violation, but held that since Petitioner had not raised the issue in his direct appeal or in his first post-conviction proceeding in the Oklahoma courts, he had procedurally defaulted the double jeopardy claim under Oklahoma law and was barred from raising the matter in a federal habeas corpus petition. The federal district court further held that Petitioner did not come within any exception to the procedural default rule and on this basis declined to consider the double jeopardy issue on its merits.

The parties agree that Petitioner was placed in double jeopardy by virtue of being punished for felony murder and the underlying felony. See Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (holding that when one defendant was convicted of felony murder based on his codefendant’s killing of a victim during the course of an armed robbery, the Double Jeopardy Clause of the Fifth Amendment barred a separate prosecution of the defendant for the lesser crime of armed robbery); Castro v. State, 745 P.2d 394, 405 (Okla.Crim.App.1987) (holding that the defendant’s conviction and punishment for both robbery with a firearm and first degree felony murder, with the robbery serving as the underlying felony, violated the Double Jeopardy Clause of the Fifth Amendment), cert. denied, 485 U.S. 971 , 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). The parties also agree that Petitioner procedurally defaulted his double jeopardy claim. However, Respondent argues that Petitioner’s default bars him from raising the double jeopardy issue in federal court, while Petitioner argues that he meets one of the exceptions to the procedural default rule in that our failure to consider Petitioner’s double jeopardy claim would result in a fundamental miscarriage of justice.

The independent and adequate state ground doctrine bars federal habeas “when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, —-, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at —-, 111 S.Ct. at 2565.

In Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986), the Supreme Court held that the fundamental miscarriage of justice exception applies when a prisoner “supplements his constitutional claim with a colorable showing of factual innocence.” (emphasis added). The fundamental miscarriage of justice exception provides for federal habeas relief where a constitutional violation “has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (emphasis added). In Sawyer v. Whitley, — U.S. —-, —- – —-, 112 S.Ct. 2514, 2519-20, 120 L.Ed.2d 269 (1992), the Court noted that the exception for actual innocence is narrow, and the concept is “easy to grasp” in the context of a noncapital case. The Sawyer Court characterized the prototypical example of actual innocence as the case where “the State has convicted the wrong person of the crime.” Id. at —-, 112 S.Ct. at 2519. The Court also emphasized that “the miscarriage of justice exception is concerned with actual as compared to legal innocence.” Id. at —-, 112 S.Ct. at 2519 (citing Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986)).

In Steele v. Young, 11 F.3d 1518, 1522 (10th Cir.1993), we addressed the issue of whether a double jeopardy claim satisfies the fundamental miscarriage of justice exception, and concluded that, standing alone, it does not. We stated in Steele that a double jeopardy claim that is not supplemented by a claim of factual innocence bars federal habeas review. Id. We also noted that even if the petitioner prevailed on the merits of his double jeopardy claim he would not show factual innocence; rather, “[d]oing so would show only ‘legal innocence’ of part of his conviction.” Id. at 1522 n. 8 (citing Sawyer, — U.S. at —-, 112 S.Ct. at 2519).4

In a case strikingly similar to Petitioner’s case, the Eighth Circuit concluded that the petitioner’s double jeopardy claim was procedurally barred from federal habeas review. See Wallace v. Lockhart, 12 F.3d 823, 826-27 (1994). In Wallace, the petitioner and a codefendant were convicted in Arkansas state court of felony murder and the underlying felony of kidnapping. Id. at 825. In the codefendant’s petition for post-conviction relief, an Arkansas court overturned her kidnapping conviction as violative of the Double Jeopardy clause of the Fifth Amendment. Id. The petitioner subsequently filed a second petition for post-conviction relief raising the double jeopardy issue. Id. The Arkansas courts, however, refused to overturn the petitioner’s kidnapping conviction because the petitioner had failed to raise his double jeopardy claim until his second state petition for post-conviction relief. Id. The petitioner then sought federal habeas relief claiming, inter alia, that despite the procedural bar, the failure of the federal courts to entertain his petition would result in a fundamental miscarriage of justice. Id. at 826. The Eighth Circuit disagreed, concluding that because the petitioner did not claim factual innocence of the kidnapping offense, he failed to come within the fundamental miscarriage of justice exception. Id. at 827.

We conclude Petitioner has failed to demonstrate that our refusal to consider his double jeopardy claim would result in a fundamental miscarriage of justice. Petitioner’s claim is no different from that of the petitioner in Steele, and, because a three-judge panel cannot overrule circuit precedent, see O’Driscoll v. Hercules Inc., 12 F.3d 176, 178 n. 1 (10th Cir.1994), we are bound by Steele. Like the petitioner in Steele, Petitioner claims only that his double jeopardy rights were violated. Although Petitioner’s claim that he was placed in double jeopardy by virtue of being punished for felony murder and the underlying felony is meritorious, this shows only legal innocence, which the Supreme Court has held insufficient to establish a fundamental miscarriage of justice. See Sawyer, — U.S. at —-, 112 S.Ct. at 2519. Because Petitioner has failed to supplement his constitutional double jeopardy claim with a claim that he is factually innocent of the underlying armed robbery conviction, federal habeas review of his double jeopardy claim is barred. See Steele, 11 F.3d at 1522, 1522 n. 8; see also Wallace, 12 F.3d at 826-27.

We also reject Petitioner’s characterization of the issue such that because the Fifth Amendment prohibits multiple punishments for the same offense, he is actually innocent of the sentence he received for armed robbery.5 Petitioner cannot show actual innocence of the armed robbery sentence without also claiming actual innocence of the armed robbery itself. Petitioner cites various capital cases and habitual offender cases for the proposition that an individual can be actually innocent of a sentence and thereby come within the fundamental miscarriage of justice exception. See, e.g., Sawyer, — U.S. at —-, 112 S.Ct. at 2519 (exception applies to violations that have resulted in the imposition of death sentence upon one who is actually innocent of the death sentence); Smith, 477 U.S. at 537-38, 106 S.Ct. at 2667-68 (same); Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir.1992) (actual innocence exception applies to habitual offender proceedings, whether or not they involve the possibility of capital punishment). In both of these types of cases, a petitioner can demonstrate actual innocence of the sentence without showing factual innocence of the underlying conviction because the sentence requires a separate showing from the proof required to convict. See, e.g., Sawyer, — U.S. at —-, 112 S.Ct. at 2520 (under Louisiana law, one convicted of capital murder is not eligible for the death penalty unless the jury concludes that one of a list of statutory aggravating circumstances exists); Mills, 979 F.2d at 1279 (under Indiana law, one can be sentenced as an habitual offender if the state proves that he has accumulated two prior unrelated felony convictions). In a capital punishment case, the petitioner is actually innocent of the sentence if he can show factual innocence of the aggravating factors that render one eligible for the death sentence. Sawyer, — U.S. at —-, 112 S.Ct. at 2523. In a habitual offender case, the petitioner is actually innocent of the sentence if he can show he is innocent of the fact–i.e., the prior conviction–necessary to sentence him as an habitual offender. Mills, 979 F.2d at 1279. In any event, actual innocence of the sentence still requires a showing of factual innocence.

In the instant case, Petitioner is unable to show factual innocence of his armed robbery sentence. Unlike in a capital case or an habitual offender case, Petitioner’s conviction and sentence for armed robbery are inextricably intertwined. Once Petitioner was convicted of the armed robbery, he was eligible for the twenty-five year sentence without any showing of proof separate from the showing required to convict him. As a result, Petitioner cannot be actually innocent of the sentence unless he is actually innocent of the armed robbery itself. Because Petitioner makes no showing of actual innocence of the armed robbery, and because his double jeopardy claim merely demonstrates legal, as compared to actual innocence, Petitioner is not entitled to relief on this claim.

We AFFIRM the district court’s denial of Petitioner’s double jeopardy claim. As to Petitioner’s claim of ineffective assistance of counsel, we REVERSE and REMAND for further proceedings consistent with this opinion.

………………………………………………………………………………………

Update april 16  source : http://www.postcrescent.com

OKLAHOMA CITY (WTW) — An Oklahoma death row inmate’s plea for clemency was rejected Monday by the state Pardon and Parole, which voted 4-1 against commuting the inmate’s death penalty to life in prison without parole.

Michael Bascum Selsor, 56, apologized to family members of 55-year-old Clayton Chandler, the Tulsa convenience store clerk he was twice convicted of killing during a robbery 37 years ago, and reminded board members he had confessed to the crime.

“I didn’t pass the blame, I shared the shame,” he said during a brief appearance before the board via teleconference from the Oklahoma State Penitentiary in McAlester.

“Is it too late to say I’m sorry?” Selsor said. “I am truly sorry for the suffering and damage I have caused.”

Selsor said he knows he will die in prison and believes he could be a mentor and friend to young inmates facing lengthy sentences.

“I’ll try to be an example for the young guys,” Selsor said.

But Chandler’s daughters urged the board to not interfere with the death penalty a Tulsa County jury gave Selsor in 1998. He is scheduled to die by lethal injection on May 1.

“I think it’s time to put this to rest,” said Debbie Huggins, who fought back tears as she and her sister, Cathy Durham, remembered their father and asked board members to deny Selsor’s request for clemency.

“When we were growing up, our dad was our best friend,” Huggins said.

“I was his little girl,” Durham said. She said her father’s death had denied him an opportunity to walk her down the aisle at her wedding and get to know his grandchildren.

Huggins said Selsor made a conscious choice when he entered the convenience store where her father worked and repeatedly shot him with a .22-caliber pistol on Sept. 15, 1975. Prosecutors say Chandler suffered eight bullet wounds.

“My daddy had no choice,” Huggins said.

After the women’s presentation, board Vice-Chairperson Marc Dreyer said he was sorry for their loss. Chandler’s widow, Anne Chandler, attended the clemency hearing but did not address the board.

Selsor’s attorney, Robert Nance, invoked Christian religious beliefs and cited biblical scriptures as he urged board members to commute Selsor’s death penalty.

“God can use those who have done evil to accomplish good,” Nance said. “Grace as I understand it is an unmerited gift from God. God does that because he loves us.”

Assistant Attorney General Robert Whittaker reminded board members that while Oklahoma law allows them to extend mercy, it also requires them to uphold lawful convictions and court judgments.

“The Pardon and Parole Board is not church,” Whittaker said.

Selsor was originally sentenced to death following a 1976 trial, but the U.S. Supreme Court later invalidated Oklahoma’s death penalty statute. The Oklahoma Court of Criminal Appeals modified Selsor’s sentence to life in prison.

But Selsor initiated a new round of appeals challenging his conviction and in April 1996, the 10th U.S. Circuit Court of Appeals threw out Selsor’s murder conviction as well as two other related convictions.

Selsor was convicted of first-degree murder and sentenced to death a second time following a retrial. The same jury recommended Selsor serve a life term as an accessory to the shooting of Chandler’s co-worker, Ina Louise Morris, who survived multiple wounds inflicted by a co-defendant, Richard Eugene Dodson. In addition, the jury imposed a 20-year term for armed robbery.

Selsor and Dodson were arrested in Santa Barbara, Calif., a week after Chandler’s slaying. At the 1976 trial, a Santa Barbara police detective testified that Selsor admitted shooting Chandler during the robbery.

Dodson, now 71, was convicted of robbery and shooting with intent to kill and is serving a prison sentence of 50 to 199 years in prison.

U.S. Court of Appeals, Tenth Circuit http://www.ca10.uscourts.gov/opinions/09/09-5180.pdf

U.S Supreme Court