Brian Clem v. Dora B. Schriro; Attorney General for the State of Arizona

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
AH/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN CLEM,
Petitioner - Appellant,
v.
DORA B. SCHRIRO; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
Respondents - Appellees.
No. 08-15333
D.C. No. CV-06-01902-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Arizona state prisoner Brian Clem appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition challenging his five
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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consecutive sentences imposed following his guilty-plea conviction for three
counts of manslaughter and two counts of aggravated assault in connection with
the same drunk driving incident that produced five victims. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
Clem contends that his five consecutive sentences totaling 22 years
imprisonment violate the Double Jeopardy Clause under the same-element test of
Blockburger v. United States, 284 U.S. 299 (1932), because they resulted from a
single drunk driving incident. Clem further contends that the rule of lenity
requires enforcement of Arizona Revised Statute section 13-116, which prohibits
imposition of consecutive sentences for the offenses resulting from the same “act.”
Finally, Clem contends that Blockburger and its progeny should be reversed.
Clem failed to demonstrate that the state court’s imposition of five
consecutive sentences is contrary to or an unreasonable application of controlling
federal law. See 28 U.S.C. § 2254(d)(1).
“[W]here 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, is whether each provision requires proof of a fact that the
other does not.” Blockburger, 284 U.S. at 304. However, even if the multiple
charges constitute the “same offense” under Blockburger, the imposition of

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cumulative punishment does not violate the Double Jeopardy Clause as long as it
does not contradict legislative intent. See Whalen v. United States, 445 U.S. 684,
692 (1980); Missouri v. Hunter, 459 U.S. 359, 366 (1983) (“[T]he Double
Jeopardy Clause does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.”).
Arizona courts have consistently held that A.R.S. § 13-116 does not prohibit
consecutive sentences for single-act-multiple-victims crimes. See, e.g., State v.
Henley, 141 Ariz. 465, 467-68 (1984); State v. White, 160 Ariz. 377, 380 (1989).
Accordingly, Clem’s consecutive sentences do not violate the Double Jeopardy
Clause. See Gentry v. MacDougall, 685 F.2d 322, 323 (9th Cir. 1982) (rejecting
petitioner’s argument “that the Arizona legislature did not authorize consecutive
sentences for multiple deaths caused by a single act of drunk driving, and that such
sentences violate the Double Jeopardy Clause”); see also Walker v. Endell, 850
F.2d 470, 476 (9th Cir. 1987). Further, we must defer to Arizona’s interpretation
of its own laws. Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003).
Finally, we do not we have the authority to revisit or reverse the controlling
Supreme Court law. Musladin v. Lamarque, 555 F.3d 830, 837 (9th Cir. 2009).
AFFIRMED.

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