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Where an initial capital sentence imposes the death penalty and the basis for the initial sentence is later invalidated, the state can seek to reimpose the death penalty on different grounds without violating the Double Jeopardy Clause of the Fifth Amendment.

In 1984, a three-judge post-conviction sentencing panel sentenced Robert Farmer to death after finding the existence of two statutory aggravating circumstances based on the commission of the murder in the course of other felonies. The panel’s written decision was silent as to any remaining aggravating circumstances. In 2007, Farmer’s death sentence was vacated following the retroactive application of a Nevada Supreme Court ruling, which found it “unconstitutional to use as an aggravating circumstance the fact that a murder was committed in the course of committing another felony.” Nevada filed an amended notice of intent to seek the death penalty, relying on different aggravating circumstances than those found to exist in the first trial. Farmer moved to strike Nevada’s amended notice, arguing that the three-judge panel had impliedly acquitted him of all other aggravating circumstances, and a retrial on the same aggravating circumstances would violate the Double Jeopardy Clause of the Fifth Amendment. After the Nevada Supreme Court affirmed the trial court’s denial of Farmer’s motion to strike, Farmer filed a habeas corpus petition in federal district court. On appeal, the Ninth Circuit held that Nevada’s attempt to reimpose the death penalty does not violate the Double Jeopardy Clause, because Farmer was not acquitted of a death sentence in his initial capital sentencing proceedings. This is so because the grounds on which Nevada relied in its renewed attempt were “neither accepted nor rejected” in Farmer’s first trial. The Court relied on the U.S. Supreme Court’s holding in Poland v. Arizona: “where an initial sentencer in fact imposes the death penalty, the state can again seek the death penalty on another basis even if the sole basis for the initial death sentence was held invalid.” AFFIRMED.