Cite as: 510 U. S. 222 (1994)
Opinion of the Court
rejected the jury's recommendation and sentenced Schiro to death. While the case was pending on direct appeal, the Indiana Supreme Court granted the State's petition to remand the case to the trial court to make written findings of fact regarding aggravating and mitigating circumstances. The trial court found that the State had proved beyond a reasonable doubt that "[t]he defendant committed the murder by intentionally killing the victim while committing or attempting to commit . . . rape." App. 46. The trial court also found that no mitigating circumstances had been established, and reaffirmed the sentence of death. Id., at 50.
The sentence was affirmed on direct appeal to the Indiana Supreme Court. Schiro v. State, 451 N. E. 2d 1047 (1983). This Court denied certiorari. Schiro v. Indiana, 464 U. S. 1003 (1983). Schiro sought postconviction relief in state court. Again, the Indiana Supreme Court affirmed the judgment of the trial court. Schiro v. State, 479 N. E. 2d 556 (1985). This Court again denied a petition for a writ of certiorari. Schiro v. Indiana, 475 U. S. 1036 (1986). Schiro then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana. The District Judge remanded the case to the Indiana courts for exhaustion of state remedies. The Indiana Supreme Court affirmed the conviction and sentence for a third time. Schiro v. State, 533 N. E. 2d 1201 (1989). In so doing, the Indiana Supreme Court rejected Schiro's argument that the jury's failure to convict him on the first murder count operated as an acquittal of intentional murder, and that the Double Jeopardy Clause prohibited the use of the intentional murder aggravating circumstance for sentencing purposes. The Indiana Supreme Court held that "[felony murder] is not an included offense of [murder] and where the jury, as in the instant case, finds the defendant guilty of one of the types of murder and remains silent on the other, it does not operate as an acquittal of the elements of the type of murder the jury
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