United States v. 2005-09-07 | 04-15465 | WILLIAMS VWARDEN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JESSICA WILLIAMS,
Petitioner-Appellant, No. 04-15465
v. D.C. No.
 WARDEN, for the State of Nevada CV-03-0874-PMP
Women’s Correctional Facility, OPINION
Christine Bodo, et al.,
Respondent-Appellee. 
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted
February 15, 2005—San Francisco, California
Filed September 7, 2005
Before: Dorothy W. Nelson, William A. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge D. W. Nelson
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COUNSEL
John G. Watkins (argued) and Ellen J. Bezian (on the briefs),
Las Vegas, Nevada, for the petitioner-appellant.
Brian Sandoval, Attorney General of the State of Nevada, and
Victor-Hugo Schulze, II (argued), Deputy Attorney General
for the State of Nevada, Las Vegas, Nevada, for the
respondent-appellee.
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OPINION
D. W. NELSON, Circuit Judge:
Jessica Williams appeals the district court’s denial of her
habeas corpus petition. The district court concluded that the
Nevada Supreme Court’s rejection of Williams’ double jeop-
ardy claim neither contravened nor unreasonably applied
clearly established federal law, as determined by the United
States Supreme Court. At issue in this appeal is Williams’
asserted simultaneous conviction and acquittal, under two
separate theories, for violating the single offense of “Driving
Under the Influence of Intoxicating Liquor or Controlled or
Prohibited Substance” (“DUI”), pursuant to Nev. Rev. Stat.
§ 484.3795(1) (hereinafter NRS 484.3795(1)). Williams
argues that because she was charged under two subsections of
the statute and the trial court treated the alternate bases of
criminal liability as separate offenses by having the jury
return verdicts on each theory, her acquittal under one theory
barred conviction under the other. We find this argument
without merit and affirm the district court’s denial of the peti-
tion.
I. Factual and Procedural Background
On March 19, 2000, Williams’ van veered off the road and
onto a highway median, killing six teenagers who had been
assigned to a road cleanup crew by Clark County Juvenile
Services. Williams, who was twenty years old at the time, tes-
tified that she had been up all night prior to the tragic inci-
dent. She admitted that she had smoked marijuana about two
hours before the accident and that she had used the drug “ec-
stasy” the previous evening. Williams’ car drifted onto the
median after she had apparently fallen asleep at the wheel. At
the time of the accident, Williams had a pipe with marijuana
residue and a plastic bag with marijuana in her car. Blood
tests confirmed the presence of marijuana metabolites in her
system.
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Williams was charged, inter alia, with six counts of violat-
ing NRS 484.3795(1) for driving under the influence of a con-
trolled substance and proximately causing the deaths of six
persons. The six counts charged her under two subsections of
NRS 484.3795(1). Under subsection (1)(d), in order to con-
vict Williams, the jury needed to find her “under the influence
of a controlled substance . . . .” NRS 484.3795(1)(d). Under
subsection (1)(f), which creates a per se violation of the stat-
ute, in order to convict, the jury needed to find that Williams
had “a prohibited substance in [her] blood or urine in an
amount equal to or greater than” the statutory threshold. NRS
484.3795(1)(f). The jury convicted Williams on all six counts
under the per se theory.
The verdict forms were organized by victim and provided
for a verdict on each of the charged alternative bases for crim-
inal liability. Specifically, the state district court used a dual-
verdict form, which provided boxes for the jury to check cor-
responding to guilty and not guilty verdicts for each theory of
the crime. Thus, on each of the six DUI counts, the jury ren-
dered a verdict for each theory of culpability. The jury found
Williams guilty of violating NRS 484.3795(1) as to each of
the victims under the per se theory of subsection (1)(f) and
not guilty as to each of the victims under the “under the influ-
ence” theory (hereinafter “impairment theory”) of subsec-
tion(1)(d).
After exhausting her appeals in state court, Williams filed
a petition for habeas corpus in federal district court, claiming
that her convictions violated the Fifth Amendment’s Double
Jeopardy Clause. See U.S. Const. amend. V. The district court
denied her petition, and Williams timely filed this appeal.
II. Standard of Review
This court reviews the district court’s denial of a 28 U.S.C.
§ 2254 habeas petition de novo. Insyxiengmay v. Morgan, 403
F.3d 657, 665 (9th Cir. 2005). Under the Antiterrorism and
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Effective Death Penalty Act of 1996 (“AEDPA”), a habeas
petition stemming from a state court conviction will not be
granted unless the decision is “contrary to” or “an unreason-
able application of” established Supreme Court precedent. 28
U.S.C. § 2254(d).1 The federal court must look to the decision
of the highest state court to address the merits of the petition-
er’s claim in a reasoned decision. LaJoie v. Thompson, 217
F.3d 663, 669 n.7 (9th Cir. 2000).
III. Discussion
A. The Nevada Supreme Court’s Construction of the Statute
of Conviction
The Nevada Supreme Court concluded that the DUI statute
under which Williams was charged defines alternative means
of committing a single offense and not separate offenses. Wil-
liams v. Nevada, 50 P.3d 1116, 1125 (Nev. 2002) (“We con-
clude that NRS 484.3795(1)(d) and (f) constitute alternative
means of committing an offense . . . .” ).2 While the court
made a legal determination that the two subsections define
alternate bases of a single form of criminal liability, it also
made a factual determination that Williams was acquitted
under one subsection of the statute and convicted under
another because, as Williams argued to the Nevada Supreme
Court, “the [state] district court treated the alternative theories
as separate offenses by asking the jury to return verdicts as to
each theory . . . .” Id. at 1124; see also id. at 1119 (“Williams
was convicted by a jury of six counts of driving with a prohib-
ited substance in the blood or urine . . . . The jury returned not
1AEDPA applies in this case because Williams filed her petition after
the effective date of the act.
2The Nevada Supreme Court similarly concluded in another case
involving a related DUI statute “ ‘that the [L]egislature intended the sub-
sections of [the DUI] statute to define alternative means of committing a
single offense, not separable offenses permitting a conviction of multiple
counts based on a single act.’ ” Williams, 50 P.3d at 1125 (alterations in
original) (quoting Dossey v. State, 964 P.2d 782, 785 (Nev. 1998)).
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guilty verdicts on the six counts of driving while under the
influence . . . .”).
We note that it would have been perfectly reasonable for
the Nevada Supreme Court simply to read the “acquittals” on
the impairment theory of DUI from the alternative verdict
forms as either themselves special verdicts or as answers to a
general verdict form with interrogatories. Cf. Nev. R. Civ. P.
49 (explaining the propriety of the use of special verdicts and
general verdicts accompanied by answers to interrogatories in
the context of civil trials); see also Zhang v. Am. Gem Sea-
foods, Inc. 339 F.3d 1020, 1031 (9th Cir. 2003) (explaining
that “[i]f the jury announces only its ultimate conclusions, it
returns an ordinary general verdict; if it makes factual find-
ings in addition to the ultimate legal conclusions, it returns a
general verdict with interrogatories. If it returns only factual
findings, leaving the court to determine the ultimate legal
result, it returns a special verdict.”). Read this way, the forms
simply ask the jury to explain which theory of culpability
underlies its single verdict. Under such a reading, there would
be no cognizable double jeopardy violation because there
would be only one finding of guilt or innocence.3 Williams
concedes as much.
We may not, however, substitute our judgment that the
alternative verdict forms are better viewed as akin to special
verdict forms or a general verdict form requesting answers to
3Williams cites a Hawaii Supreme Court case for its holding that a DUI
statute specifying both a per se theory and an impairment theory of crimi-
nal liability for DUI “provides two alternative means of proving a single
offense.” 50 P.3d at 1124 n.48 (quoting State v. Dow, 806 P.2d 402, 405
(Haw. 1991)). In that case, the Hawaii Supreme Court treated the trial
court’s prior “acquittal” on the impairment theory alone as a factual find-
ing akin to a jury’s special verdict. Dow, 806 P.2d at 406. The Hawaii
Supreme Court thus did not consider the trial court’s entry of judgment of
acquittal on that theory as a jeopardy terminating event and held that the
defendant’s subsequent conviction for the offense under a per se theory of
DUI did not constitute double jeopardy. Id. at 406-07.
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interrogatories. How to view these forms is a question of fact
for the state courts to resolve in the first instance. Under
AEDPA, this court owes a state court’s findings of fact great
deference. 28 U.S.C. § 2254(e)(1). We must presume the cor-
rectness of the state court’s factual findings absent clear and
convincing evidence to the contrary. Id.; see also Davis v.
Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (applying the
standards of 28 U.S.C. § 2254). We thus proceed, as the
Nevada Supreme Court did, under the assumption that Wil-
liams was convicted under NRS 484.3795(1)(f) (the per se
subsection) and acquitted under NRS 484.3795(1)(d) (the
impairment subsection) for purposes of our analysis of the
double jeopardy question. See Williams, 50 P.3d at 1125 (“We
conclude that . . . appellant’s acquittal under the one subsec-
tion and her conviction under the other does not violate the
Double Jeopardy Clause.”) (emphasis added).
The Nevada Supreme Court indicated that even if the two
subsections had created two offenses under Nevada law, there
would still be no double jeopardy violation. The court
explained that “[u]nder the Blockburger test, each of these
subsections defines a separate offense for purposes of double
jeopardy analysis.” Id. at 1124 (citing Blockburger v. United
States, 284 U.S. 299 (1932)). Under Blockburger, “where the
same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one [for double jeop-
ardy purposes] is whether each provision requires proof of an
additional fact which the other does not.” 284 U.S. at 304.
With its application of Blockburger, the Nevada Supreme
Court made clear that even if the two subsections of Nevada’s
DUI statute are treated as creating facially distinct offenses,
they are separate offenses for double jeopardy purposes
because they fail Blockburger’s “same evidence” test. See
Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978) (char-
acterizing the Blockburger test as the “same evidence” test).
Williams thus faces the following dilemma. Either the two
subsections create two distinct offenses under Nevada law or
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they do not. If the two subsections create two offenses, then
there is no double jeopardy violation because the two offenses
fail the same evidence test of Blockburger and thus are not the
same offense for purposes of double jeopardy. See Williams,
50 P.3d at 1124. If, on the other hand, the trial court mis-
takenly allowed, whether wittingly or not, Williams to be
simultaneously acquitted and convicted of the same offense
under two subsections of the statute, then, as we explain infra,
there is still no double jeopardy violation. Either way, Wil-
liams’ double jeopardy challenge fails. Because the Nevada
Supreme Court specifically held that the two subsections of
the DUI statute do not create separate offenses, we turn our
attention away from the court’s Blockburger analysis to the
second horn of the dilemma.
We pause to note, however, that even if, as Williams
claims, the Nevada Supreme Court erred in finding that
Blockburger was “the appropriate tool” for its double jeop-
ardy analysis, Williams, 50 P.3d at 1124, this error would not
be enough to grant her habeas petition. The application of fed-
eral law must be “objectively unreasonable,” not just “incor-
rect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75
(2003). And it is the state court’s decision, not its reasoning,
that is judged under the “unreasonable application” standard.
See, e.g., Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.
2002) (observing that in habeas proceedings, “we are deter-
mining the reasonableness of the state courts’ ‘decision,’ not
grading their papers”) (citing Cruz v. Miller, 255 F.3d 77, 86
(2d Cir. 2001)); id. (“the intricacies of the state court’s analy-
sis need not concern us; what matters is whether the decision
the court reached was contrary to controlling federal law”).
Because the Nevada Supreme Court reached the correct result
on other grounds that neither contravened nor unreasonably
applied established federal law, this court, under AEDPA,
must uphold the Nevada Supreme Court’s decision.
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B. Williams’ Reliance on Supreme Court Precedent in
Defining the Scope of Double Jeopardy’s Protections
[1] The Nevada Supreme Court correctly relied upon
United States v. Halper, 490 U.S. 435, 440 (1989), abrogated
on other grounds by Hudson v. United States, 522 U.S. 93, 96
(1997), when it noted, “the Double Jeopardy Clause protects
against three distinct abuses: a second prosecution for the
same offense after acquittal; a second prosecution for the
same offense after conviction; and multiple punishments for
the same offense.” Williams, 50 P.3d at 1124 (internal citation
and quotation marks omitted). Williams would like to carve
out a fourth abuse against which double jeopardy ostensibly
protects: the simultaneous conviction and acquittal of the
same offense, under different theories, in the same trial by a
single jury. Such an extension would not comport with the
primary purpose of the Double Jeopardy Clause. See Green v.
United States, 355 U.S. 184, 187 (1957) (“The underlying
idea [behind the constitutional prohibition against double
jeopardy] . . . is that the State with all its resources and power
should not be allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity . . . .”).
[2] Furthermore, because the acquittal took place at the
same time as the conviction, Williams never had a legitimate
expectation of finality in the verdict of acquittal. See United
States v. DiFrancesco, 449 U.S. 117, 129 (1980) (“An acquit-
tal is accorded special weight. The constitutional protection
against double jeopardy unequivocally prohibits a second trial
following an acquittal, for the public interest in the finality of
criminal judgments is so strong that an acquitted defendant
may not be retried even though the acquittal was based upon
an egregiously erroneous foundation.”) (emphasis added)
(internal quotation marks omitted) (citing Fong Foo v. United
States, 369 U.S. 141, 143 (1962)).
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Williams relies heavily on Sanabria for the proposition that
a single offense cannot be divided into “discrete bases of lia-
bility” under different theories and counted as separate
offenses for purposes of double jeopardy. See Sanabria, 437
U.S. at 72. Williams claims that the Nevada Supreme Court
has done what Sanabria has expressly forbidden by treating
NRS 484.3795 subsections (1)(d) and (1)(f) as separate
offenses for purposes of its double jeopardy analysis.
The Sanabria Court held that Sanabria’s acquittal of the
charge of being connected with an illegal gambling business
on one theory “stands as an absolute bar to any further prose-
cution for participation in that business” on any other theory.
Sanabria, 437 U.S. at 72-3 (emphasis added). Sanabria thus
protects Williams from further prosecution on the same
offense under a different theory, but it does not apply in this
case, where the two theories of culpability were presented to
the same jury simultaneously.
[3] Williams also claims that the protections of collateral
estoppel embodied in the Double Jeopardy Clause demand
that her “acquittals” under subsection (1)(d) prevent the gov-
ernment from “relitigating . . . a second time under an alterna-
tive theory.” See Ashe v. Swenson, 397 U.S. 436, 445 (1970)
(holding that collateral estoppel is part of the Fifth Amend-
ment’s guarantee against double jeopardy). Williams is cor-
rect. This is in fact what Sanabria proscribes. See 437 U.S. at
69. But that is not what happened here. There was one trial
at which the jury rendered its verdicts simultaneously. The
government litigated the case once — not twice — under
alternative theories, as is its right. See Schad v. Arizona, 501
U.S. 624, 631 (1991) (“It may be alleged in a single count that
. . . the defendant committed the offense . . . by one or more
specified means.”) (internal citation and quotations omitted).
Williams’ simultaneous acquittals and convictions thus did
not violate the principle of collateral estoppel embodied in the
Double Jeopardy Clause. See Ashe, 397 U.S. at 442 (defining
collateral estoppel as “the principle that bars relitigation
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between the same parties of issues actually determined at a
previous trial”) (emphasis added).
Williams does not provide any authority for the proposition
that a simultaneous conviction and acquittal on the self-same
offense violates the Double Jeopardy Clause. United States
Supreme Court precedent in fact supports the opposite conten-
tion. In Green, the Court held that Green’s conviction on the
lesser included offense of second degree murder constituted
an “implicit acquittal” of the greater murder charge. Green,
355 U.S. at 190 & n.10. The Court held that for double jeop-
ardy purposes the jury should be understood to have “returned
a verdict which expressly read: ‘We find the defendant not
guilty of murder in the first degree but guilty of murder in the
second degree.’ ” Id. at 191. In so doing, the Court sanctioned
a simultaneous acquittal and conviction on the “same
offense.” See Brown v. Ohio, 432 U.S. 161, 166 & n.6 (1977)
(holding that greater and lesser included offenses were the
“same offense” for purposes of double jeopardy).
[4] The Nevada Supreme Court neither contravened nor
unreasonably applied established federal law when it refused
to expand the protections of double jeopardy to Williams’
case. Moreover, doing so would have thwarted the obvious
intent of the jury, and “no possible unfairness can be found in
a judgment that reflects the jury’s true intent.” United States
v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990) (holding that the
trial court’s correction of verdict from acquittal to guilty in
order to correct a clerical error made by the jury did not vio-
late Double Jeopardy Clause).
IV. Conclusion
Because the Nevada Supreme Court’s decision was consis-
tent with clearly established federal law in holding that Wil-
liams has not twice been put in jeopardy for the same offense,
we affirm the district court’s denial of Williams’ petition for
habeas corpus.
AFFIRMED.
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