White v. Howes

¶4OPINION

¶5WHITE, Circuit Judge.

¶6Respondent Carol Howes, Warden of the correctional facility at which Petitioner Thomas White is serving Michigan state court sentences, appeals from the district court’s order granting habeas relief. We reverse.

¶7I

¶8This court reviews de novo a district court’s decision to grant a writ of habeas corpus, as well as the court’s legal conclusions. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005); Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004).

¶9Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus unless it finds ■ that the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law ...” or (2) “was based on an unreasonable determination of the facts.... ” Armstrong, 372 F.3d at 781, quoting 28 U.S.C. § 2254(d)(1). Only the first clause is at issue here.

¶10II

¶11The district court’s Opinion and Order granting in part Petitioner’s Petition for Writ of Habeas Corpus sets forth the underlying facts and procedural history:

… Petitioner was convicted of (1) felon-in-possession of a firearm, MICH. COMP. LAWS § 750.224F, (2) carrying a concealed weapon (“CCW”), MICH. COMP. LAWS § 750.227, and (3) possession of a firearm during the commission of a felony-second offense, MICH. COMP. LAWS § 750.227B, in the Oakland County, Michigan, Circuit Court. On February 15, 2005, Petitioner pleaded guilty to the above-stated charges, in addition to the charge of driving while license suspended. Petitioner also pleaded guilty to being a habitual offender — fourth offense.

In his pleadings, Petitioner challenges his convictions for both felon-in-possession of a firearm and felony-firearm....

II. Statement of Facts

*1027Petitioner’s convictions arise from a traffic stop in the city of Troy, Michigan. After stopping Petitioner for speeding, the police officers conducted a LEIN check, which showed that Petitioner’s driver’s license was suspended. Petitioner was placed under arrest for driving with a suspended license. The police then searched Petitioner’s car and found a loaded shotgun and a loaded handgun in the trunk.

On March 2, 2005, the trial judge sentenced Petitioner to the five years on the felony-firearm-second offense, to run consecutive to the convictions of felon-in-possession, CCW, and driving while license suspended. The trial court then imposed a fourteen-months-to-twenty year term of imprisonment on the felon-in-possession and carrying a concealed weapon convictions, with ninety-five (95) days credit as time served for the remaining conviction. The felon-in-possession, CCW, and driving-while-license-suspended sentences were to run concurrent to each other and consecutive to the felony-firearm-second-count sentence.

Following sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals asserting the following:

I. [Petitioner’s] sentence for carrying a concealed weapon cannot be consecutive to the sentence for felony-firearm.

II. [Petitioner’s] convictions of both felon-in-possession of a firearm and felony-firearm violate double jeopardy.

On August 29, 2005, the Michigan Court of Appeals agreed with Petitioner’s first claim, and remanded the case for a correction of Petitioner’s sentences, but denied the application for leave to appeal in all other respects.... People v. Thomas Clifford White, No. '263988 (Mich.Ct.App. Aug. 29, 2005).

Subsequently, Petitioner filed an application for leave to appeal to the Michigan Supreme Court, raising claim II from the Michigan Court of Appeals’ direct appeal, and adding an additional claim regarding the ineffective assistance of counsel!.]

The Michigan. Supreme Court denied the application because “we are not persuaded that the questions presented should be reviewed by this Court.” People v. Thomas Clifford White, 474 Mich. 1020, 708 N.W.2d 386 (2006) (Cavanagh and Kelly, JJ., would grant leave to appeal). Petitioner has not filed a motion for relief from judgment under M.C.R. 6.500 et. seq. [sic]

Petitioner filed the present habeas petition, on February 17, 2006, raising the same claims as raised in the Michigan Supreme Court. (Docket # 1.)....

¶12A

¶13The district court analyzed the Double Jeopardy issue as follows:

b) Multiple Punishments for an Offense The doctrine regarding the Double Jeopardy Clause draws a crucial distinction between multiple punishments for the same conduct (permissible) and multiple punishments for the same offense (impermissible). While the issue can be confusing, it is clear to this Court that a conviction under both the felon in possession statute and the felony firearm statute constitutes multiple punishment . for the same offense, and is therefore in violation of the Double Jeopardy Clause.

It is well established that the Double Jeopardy Clause does not prohibit a state from defining conduct to constitute two separate criminal offenses. Mis*1028souri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (finding that when “a legislature specifically authorizes cumulative punishments under two statutes, ... a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishments under such statutes in a single trial”)....

In the case at hand, the Michigan Supreme Court, applying the expressio unis est exclusio alterius [sic] canon of construction to the language of the statute, has concluded that “the Legislature’s intent in drafting the felony-firearm statute was to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute.” People v. Mitchell, 456 Mich. 693, 575 N.W.2d 283, 285 (1998).... However, a focus on legislative intent is misguided, as this case does not involve multiple convictions arising out of the same “conduct,” Hunter, 459 U.S. at 368, 103 S.Ct. 673, but instead involves multiple punishments on a single offense.

¶14The felon in possession statute states, in pertinent part, that:

“(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state [unless certain circumstances are met].” MICH. COMP. LAWS § 750.224Í.

¶15The felony-firearm statute states, in pertinent part, that:

“A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession by licensee] or 230 [alteration of identifying marks on a weapon], is guilty of a felony.” MICH. COMP. LAWS § 750.227b(l).

Under § 750.224Í, Petitioner was found guilty because (1) he was a felon (2) in possession of a firearm. Under § 750.227b, Petitioner was found guilty because he was (1) a person in possession of a firearm (2) while committing a felony (the felony being the same § 750.224f). After substituting the elements of § 750.224Í, we find that Petitioner was convicted under § 750.227b for being (1) a person in possession of a firearm (2) while he was a felon (3) in possession of a firearm. Considering that (3) is redundant, this is exactly the same charge as § 750.224L Therefore, anyone convicted of “felon in possession” is always guilty of felony-firearm. This is double punishment at its most basic, as it constitutes multiple punishments for the same offense. Pearce, 395 U.S. at 717, 89 S.Ct. 2072; Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (holding that the double jeopardy clause protects against “cumulative punishments for convictions on the same offense”).

Federal court rulings upholding multiple convictions have involved convictions for felony predicate crimes (such as felony murder) and their underlying felonies. See Hunter, (finding that double jeopardy does not prohibit a conviction of Missouri’s “felony with a deadly weapon” statute and the underlying felony of armed robbery); Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir.1986) (finding that double jeopardy does not prohibit a conviction of both felony murder and the underlying felony or robbery).... The case at hand, however, does not involve multiple crimes arising out of a single act, but rather a double prosecution of the same offense. That is, the conviction of felon in posses*1029sion and felony firearm is not the logical equivalent of a conviction of robbery and felony murder — it is the logical equivalent of a conviction of murder and felony murder. Such a conviction would be entirely circular and would constitute convicting the defendant of the same crime twice in violation of the Double Jeopardy Clause. See United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (holding that the underlying premise of double jeopardy was “that a defendant should not be twice tried or punished for the same offense”). The facts in the case at hand are distinguishable from the HunterfWhalen line of cases, as this case involves multiple punishment of the same offense, rather than the same conduct.

¶16B

¶17The issue is clearly drawn. The district court acknowledged the Supreme Court’s holding in Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), that where “a legislature specifically authorizes cumulative punishment under two statutes, ... a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishments under such statutes in a single trial.” The Hunter Court further stated:

With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.

[1] [ ] simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger [1] test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes ....

¶18[Hunter, 459 U.S. at 365-66, 368, 103 S.Ct. 673.] The district court also accurately observed that the Michigan Supreme Court’s decision in People v. Mitchell, 456 Mich. 693, 575 N.W.2d 283 (1998), is a clear determination by that court that the Michigan Legislature intended to include felon-in-possession as a predicate felony for purposes of the felony-firearm statute.2 The district court further recognized that the Michigan Supreme Court’s determination in Mitchell is binding on a federal habeas court. See Banner v. Davis, 886 F.2d 777, 780 (noting that “once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination”).

¶19The district court continued its inquiry beyond this point, concluding that because the two statutes do not simply punish the same conduct, but the same exact offense, a “focus on legislative intent is misguided,” *1030and the Michigan court’s denial of relief constituted an unreasonable application of federal law. In support of the district court’s conclusion, White argues that this court must reconcile two different lines of Supreme Court cases — the Blockburger/Pearce3line of cases that recognize that a person may not receive multiple punishments for the same offense, and the Whalen/Hunter4line of cases that appear “on the surface to limit Blockburger and Pearce by transmogrifying the Blockburger test into a rule of mere statutory construction.” [Appellee Br. p. 9.] White argues that “the Supreme Court’s decisional language in Whalen and Hunter is [in]applieable in a situation in which two separate statutes, with separate penalties, each define the same criminal offense.” [Appellee Br. p. 10.]

¶20The question then is whether the Michigan Legislature can constitutionally provide that a felon who possesses a firearm shall be convicted of and punished for violating two criminal statutes: felon in possession of a firearm, and possession of a firearm while being a felon in possession of a firearm. We have no quarrel with the district court’s determination that this case presents a rather unusual circumstance in that the two offenses are really the same offense (one cannot commit felon in possession of a firearm without simultaneously violating the felony-firearm statute), but the highest state court has found a legislative intent to punish under both statutes.5 Nevertheless, White has cited no cases, and we have found none,6 where a state legislature was found to have violated the *1031double jeopardy bar against multiple punishment by imposing multiple punishment for the same offense.7

¶21In Banner, 886 F.2d at 780-81, this court addressed the question whether the Tennessee offenses of aggravated assault, in violation of TenmCode § 39-2-101, and shooting into an occupied dwelling, in violation of TenmCode § 39-2-115, are the same offense for double jeopardy purposes. Like the district court in the instant case, we recognized that:

Whether punishments are multiple under the double jeopardy clause is essentially a question of legislative intent. Id. [Ohio v. Johnson, 467 U.S. 493] at 499, 104 S.Ct. at 2540, 81 L.Ed.2d 425; Missouri v. Hunter, 459 U.S. 359, 366-68, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983).

When assessing the intent of a state legislature, a federal court is bound by a state court’s construction of that state’s own statutes. See Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679; O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 744, 38 L.Ed.2d 702 (1974). Under the double jeopardy clause, when evaluating whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, a federal court is bound by a state court’s determination of the legislature’s intent. See Ohio v. Johnson, 467 U.S. at 499, 104 S.Ct. at 2541.....

Thus, for purposes of double jeopardy analysis, once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination. See Smith v. Sowders, [848 F.2d 735 (6th Cir.1988) ], (Kentucky Court of Appeals determination binding); Hall v. Wainwright, [493 F.2d 37 (5th Cir.1974) ].

¶22[Banner, 886 F.2d at 780.] Banner had urged this court to apply the Blockburger test to determine whether the two offenses are one for double jeopardy purposes. The court declined to do so, noting the Supreme Court’s statement in Ohio v. Johnson, 467 U.S. at 493, n. 8, 104 S.Ct. 2536:

It should be evident from our decision in Missouri v. Hunter, however, the Blockburger test does not necessarily control the inquiry into the intent of a state legislature. Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court’s inquiry is at an end.

¶23[Banner, 886 F.2d at 780-81.] Nevertheless, the Banner panel continued its inquiry in light of this court’s en banc decision in Pryor v. Rose, 724 F.2d 525 (6th Cir.1984), explaining:

In Pryor, a habeas case involving the question of multiple punishments, our en banc court independently interpreted the scope of Tennessee criminal statutes for purposes of double jeopardy analysis. WTiile indicating that the views of the Tennessee Supreme Court on the double jeopardy issue were entitled to consideration, id. at 530, relying upon Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980), and its application of Blockburger, we held that multiple punishment was forbidden under the double jeopardy clause. In evaluating Pryor’s claim *1032and holding that the Tennessee legislature did not intend cumulative punishments, we stated: “We therefore hold that the Tennessee legislature has not dearly indicated that consecutive sentences are proper in the situation presented by this case.” 724 F.2d at 531 (emphasis supplied). Analysis in prior Tennessee cases, we held, was “wholly unacceptable under Whalen, which requires that the legislature ‘clearly indicate’ that consecutive sentences are permissible for offenses which are the same under the Blockburger test.” Id.

Thus, in evaluating Banner’s claim in light of Blockburger, there is a tension between: (1) adherence to the multiple punishment determination made by the Tennessee Court of Criminal Appeals and Tennessee Supreme Court and (2) application of the Blockburger test (which is used as a gauge for determining legislative intent) as it was interpreted in Whalen and applied in Pryor. This ambiguity is underlined by the Supreme Court’s statement in Ohio v. Johnson that “The Blockburger test does not necessarily control the inquiry into the intent of a state legislature.” 467 U.S. at 493 n. 8, 104 S.Ct. at 2541 n. 8 (emphasis supplied). To resolve this tension, we must determine whether a state court judgment must establish that the state legislature clearly intended cumulative punishment before a federal court is bound by that determination for purposes of double jeopardy analysis, as is apparently indicated by Pryor.

¶24[Banner, 886 F.2d at 781.] The Banner panel discussed its uncertainty over the scope of Blockburger, id. at 782, distinguished Pryor as “limited to a narrow situation in which the state courts below had failed to give a clear expression on the issue of cumulative punishment,” id.,and ultimately concluded that because the Tennessee courts had already held that the Tennessee Legislature intended cumulative punishments, further analysis under Blockburger would be improper.8

¶25In the instant case, although we agree with the district court that the two statutes at issue here punish the same offense under Blockburger, we can find no basis upon which to make the distinction drawn by the court in granting the habeas petition. While this may be the case that prompts the Supreme Court to refine its analysis, the Court has never held or intimated that the constitutional bar against double jeopardy circumscribes the legislative prerogative to define crimes and prescribe punishment in the context of a single prosecution. While no case is directly on point in upholding multiple punishments under two statutes that define the same offense as these do here, the Supreme Court has repeatedly described the third aspect of the Double Jeopardy Clause — the protection against multiple punishments for the same offense imposed in a single proceeding — as protecting only against the imposition of punishment in excess of that authorized by the legislature.9

¶26*1033Indeed, in the face of repeated assertions of this principle in majority opinions of the Supreme Court, only Justice Marshall (joined by Justice Stevens, in Missouri v. Hunter, 459 U.S. at 369-71, 103 S.Ct. 673), and Justice Stewart (joined by Justices Marshall and Stevens, in Albernaz, 450 U.S. at 344, 101 S.Ct. 1137), have expressed the view that the multiple-punishment aspect of the Double Jeopardy Clause limits a legislature’s power to define offenses and prescribe punishment.10*1035More recently, Justice Scalia has expressed the view that the prohibition against multiple punishment is not “a freestanding constitutional prohibition implicit in the Double Jeopardy Clause,” but rather, “an aspect of the Due Process Clause requirement of legislative authorization.” Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 798, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (Scalia, J., dissenting, joined by Thomas, J.); Hudson v. United States, 522 U.S. 93, 106, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (Scalia, J., concurring, joined by Thomas, J.). Neither Justice Marshall’s nor Justice Scalia’s view has been adopted by a majority of the Court. The current jurisprudence allows for multiple punishment for the same offense provided the legislature has clearly indicated its intent to so provide, and recognizes no exception for necessarily included, or overlapping offenses.

¶27We therefore REVERSE.