     Case: 16-30486    Document: 00514472153      Page: 1   Date Filed: 05/14/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                  No. 16-30486                          FILED
                                                                    May 14, 2018
                                                                   Lyle W. Cayce
RICKY LANGLEY,                                                          Clerk

             Petitioner - Appellant

v.

HOWARD PRINCE, WARDEN, ELAYN HUNT CORRECTIONAL CENTER,

             Respondent - Appellee




                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      The State of Louisiana tried Ricky Langley three times for the same kill-
ing. At the second trial, the jury acquitted Langley of first degree murder, rel-
evantly defined as (1) killing a human being (2) with specific intent to kill or to
inflict great bodily harm (3) where the victim was under twelve. See La. R.S.
14:30(A)(5). Langley’s attorneys had conceded the first and third elements, but
disputed the second; they argued that Langley was mentally incapable of form-
ing the requisite intent. Years later, at the third trial, and over a double jeop-
ardy objection, the State re-tried Langley for the lesser included offense of sec-
ond degree murder, defined as (1) killing a human being (2) with specific intent
to kill or to inflict great bodily harm. See La. R.S. 14:30.1(A)(1). This time, the
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                                  No. 16-30486
State secured a conviction. Langley now petitions for a writ of habeas corpus,
arguing that his conviction violated the issue-preclusion component of the Dou-
ble Jeopardy Clause. See Ashe v. Swenson, 397 U.S. 436, 443–46 (1970).
      The Double Jeopardy Clause, made applicable to the states by the Four-
teenth Amendment, guarantees that “[n]o person shall . . . be subject for the
same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V;
accord Benton v. Maryland, 395 U.S. 784, 787 (1969). This language embodies
an idea “deeply ingrained” in Anglo-American jurisprudence: “that the State
with all its resources and power should not be allowed to make repeated at-
tempts to convict an individual for an alleged offense.” Green v. United States,
355 U.S. 184, 187 (1957). To that end, the Double Jeopardy Clause requires
that acquittals be final—no matter how legally or factually erroneous they may
appear to be. E.g., United States v. DiFrancesco, 449 U.S. 117, 129–30 (1980);
Fong Foo v. United States, 369 U.S. 141, 143 (1962). Once an acquittal is ren-
dered, the State may not re-prosecute the defendant for the same crime. E.g.,
Green, 355 U.S. at 188. And importantly here, neither may the State prosecute
the defendant for even a different crime, if that crime has as an essential ele-
ment an issue necessarily determined by the acquitting jury’s verdict. Ashe,
397 U.S. at 443–46.
      In this case, the verdict from Langley’s second trial necessarily deter-
mined that the State failed to prove beyond a reasonable doubt that Langley
acted with specific intent to kill or to inflict great bodily harm. Hence, the State
is constitutionally barred from prosecuting Langley for any crime having that
same issue as an essential element. Langley’s second-degree-murder convic-
tion from his third trial is therefore invalid. We accordingly REVERSE the
district court’s dismissal of Langley’s habeas petition and REMAND with di-
rections to issue the writ. There may well be crimes for which the State can
constitutionally prosecute Langley in connection with the horrific facts of this
                                         2
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                                   No. 16-30486
case. But under clearly established Supreme Court precedent, second degree
murder as defined in La. R.S. 14:30.1(A)(1) cannot reasonably be one of them.
                                          I
      The facts are heartrending. Six-year-old J.G. went missing on February
7, 1992. Officers soon arrested Langley, who was then twenty-six years old.
Once inside the police cruiser, Langley admitted to killing the young boy and
leaving the body in his closet. He described how he rented a room from a family
with two children; how J.G. came to the house looking to play with one of those
children; how Langley followed J.G. inside; and how Langley strangled J.G. to
death. He then gave the officers a videotaped tour of the house, recounting the
events in a calm and neutral voice that one witness described as having “no
register whatsoever of horror, shame, [or] anxiety.” When an officer asked
Langley why he had done it, Langley shook his head and answered: “I couldn’t
tell you. I still go through my mind trying to figure it out. It’s like, I know I did
it, but yet it’s like something you read in a newspaper.”
      Langley later gave two more custodial videotaped confessions. His con-
fessions gave differing stories, however, as to whether he also beckoned J.G.
inside the house; as to whether he abused J.G. sexually; and as to whether any
such abuse took place before or after the strangling.
                                         A
      The first trial took place in July 1994. A grand jury charged Langley with
first degree murder; a petite jury convicted him; and a judge sentenced him to
death. Those proceedings were set aside, however, after a finding that the
judge presiding over the grand jury had selected the foreperson on the basis of
race. See generally State v. Langley (Langley II), 813 So. 2d 356, 359–65, 373
(La. 2002) (applying Campbell v. Louisiana, 523 U.S. 392, 396–97 (1998)). Nei-
ther party contends that this now-vacated conviction carries double jeopardy
consequences. See generally Burks v. United States, 437 U.S. 1, 13, 16 (1978).
                                         3
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                                        No. 16-30486
                                               B
       The second trial—the one most relevant here—took place in May 2003.
The State re-indicted Langley on the same first-degree-murder charge, and
again sought the death penalty. Langley pleaded not guilty and not guilty by
reason of insanity. See La. Code Crim. Proc. Ann. art. 552(3).
       In arguments to the jury, defense counsel repeatedly emphasized that
they were not contesting that Langley had killed J.G. The defense likewise
conceded to the jury that J.G. had been under the age of twelve.
       Instead, the defense’s closing argument contested primarily two issues.
First, defense attorney Phyllis Mann argued that the State had failed to prove
beyond a reasonable doubt that Langley acted with specific intent to kill or to
inflict great bodily harm. The core of the argument was that Langley could not
have formed the requisite intent because his mental illness prevented him
from understanding and intending the consequences of his actions. Second, de-
fense attorney Clive Smith argued separately that Langley had proved his in-
sanity defense by a preponderance of the evidence. Both arguments turned in
part on the same evidence of Langley’s mental illness. 1 But Langley’s attorneys




       1 For example, the jury heard testimony regarding Langley’s history of mental break-
downs; his family trauma; and his significant pre-natal exposure to medical drugs, alcohol,
and x-rays. (According to evidence adduced at trial, the first five-and-a-half months of Lang-
ley’s gestation occurred while his mother was hospitalized in a body cast after a car accident,
during which time she was administered surgeries and painkillers by doctors who did not
realize she was pregnant.) The defense also called medical experts who opined (1) that Lang-
ley could have incurred permanent brain damage as a result of his toxic and malformed pre-
natal environment; (2) that Langley suffered from audio and visual hallucinations and had
been diagnosed as “schizophreni[c]”; and (3) that Langley was “acutely psychotic” at the time
of the killing and as such was “not mentally able to really develop the intent, the ill will, the
desire to harm the other.” Cf. La. Code Evid. Ann. art. 704 cmt. b (noting that Louisiana has
declined to adopt the federal rule of evidence prohibiting expert testimony regarding a crim-
inal defendant’s mental state).
                                               4
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                                      No. 16-30486
were careful to delineate the two theories—explaining that they involved dif-
ferent substantive standards, required different degrees of persuasion, and
placed the burden of proof on different parties.
       As would become relevant on appeal, the judge presiding over Langley’s
second trial left the courtroom for significant portions of the proceedings, cut
off the defense’s closing argument early, refused to entertain certain contem-
poraneous objections, and by and large “failed to maintain order and decorum”
in the courtroom. See generally State v. Langley (Langley III), 896 So. 2d 200,
203–07 (La. Ct. App. 2004).
       The judge did, however, give the following jury instructions:
       First, the judge defined first degree murder. First degree murder in Lou-
isiana consists of (1) killing a human being (2) with specific intent to kill or to
inflict great bodily harm (3) with one or more aggravating factors. See La. R.S.
14:30(A). Here, the State chose to rely on two possible aggravators: either (a)
that Langley was committing or attempting second degree kidnapping, see id.
14:30(A)(1); or (b) that J.G. was less than twelve years old, see id. 14:30(A)(5). 2
The judge accordingly defined first degree murder as requiring proof of those
elements beyond a reasonable doubt. The judge then defined specific intent:




       2 The judge appears to have worked from the statutory definition of first degree mur-
der in effect as of May 2003, which provided in relevant part:
               First degree murder is the killing of a human being:
               (1) When the offender has specific intent to kill or to inflict great
                    bodily harm and is engaged in the perpetration or attempted
                    perpetration of aggravated kidnapping, second degree kid-
                    napping, aggravated escape, aggravated arson, aggravated
                    rape, forcible rape, aggravated burglary, armed robbery,
                    drive-by shooting, first degree robbery, simple robbery, or
                    terrorism. . . . [or]
                (5) When the offender has the specific intent to kill or to inflict
                    great bodily harm upon a victim who is under the age of
                    twelve or sixty-five years of age or older.
La. R.S. 14:30(A) (May 2003) (emphases added).
                                             5
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                                       No. 16-30486
              Specific criminal intent is that state of mind which ex-
              ists when the circumstances indicate that a defendant
              actively desired the prescribed criminal consequences
              to follow his act or failure to act.
And the judge told the jury: “[I]f you are convinced beyond a reasonable doubt
that [Langley] is guilty of first degree murder, your verdict should be ‘guilty.’”
       Second, the judge instructed the jury, “If you are not convinced that
[Langley] is guilty of the offense charged, you may find [him] guilty of a lesser
offense,” including second degree murder. See La. Code Crim. Proc. Ann. art.
804(B). Second degree murder in Louisiana is defined in the alternative. As
relevant here, it consists of either: (1) killing a human being (2) with specific
intent to kill or inflict great bodily harm (“specific-intent second degree mur-
der”), see La. R.S. 14:30.1(A)(1); or (1) killing a human being (2) while commit-
ting or attempting certain enumerated felonies (“second degree felony mur-
der”), see id. 14:30.1(A)(2). 3 The judge instructed the jury as to both types. 4



       3  The judge again appears to have worked from the 2003 version of the second degree
murder statute, which provided in relevant part:
                Second degree murder is the killing of a human being:
                (1) When the offender has a specific intent to kill or to inflict
                    great bodily harm; or
                (2) (a) When the offender is engaged in the perpetration or at-
                        tempted perpetration aggravated rape, forcible rape, ag-
                        gravated arson, aggravated burglary, aggravated kid-
                        napping, second degree kidnapping, aggravated escape,
                        drive-by shooting, armed robbery, first degree robbery, or
                        simple robbery, even though he has no intent to kill or to
                        inflict great bodily harm.
                    (b) When the offender is engaged in the perpetration of cru-
                        elty to juveniles, even though he has no intent to kill or
                        to inflict great bodily harm.
La. R.S. 14:30.1(A) (2003) (emphases added). As noted below, “second degree kidnapping” and
“cruelty to juveniles” were not listed in the version of the statute that applied during the
alleged commission of the offense in February 1992. See infra note 11.
        4 As discussed below, the judge’s oral instructions erroneously defined specific-intent

second degree murder as the killing of a human being “with or without specific intent to kill
or to inflict great bodily harm.” (emphasis added). See infra Part IV–C–2. During delibera-
tions, the jury received a written corrected instruction, with the consent of both parties.
                                              6
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                                        No. 16-30486
With respect to specific-intent second degree murder, the judge gave no defini-
tion of “specific intent” other than the one quoted above. 5 With respect to sec-
ond degree felony murder, the judge instructed the jury that the relevant felo-
nies were second degree kidnapping, see id. 14:44.1, 6 and cruelty to juveniles,
see id. 14:93. 7 The judge then told the jury: “If you are not convinced that
[Langley] is guilty of first degree murder, but you are convinced beyond a rea-
sonable doubt that [he] is guilty of second degree murder, the form of your
verdict should be ‘guilty of second degree murder.’” (emphasis added).
       Finally, the judge instructed the jury on the insanity defense. He ex-
plained that “[Langley] has the burden of proving his insanity at the time of
the commission of the offense by a preponderance of the evidence.” He then
defined insanity:
              [Langley was insane at the time of the commission of
              the offense] if the circumstances indicate that because
              of his mental disease or mental defect the defendant
              was incapable of distinguishing between right and
              wrong with reference to the conduct in question . . . .




       5 The State agrees that first degree murder under La. R.S. 14:30(A)(5) and second
degree murder under La. R.S. 14:30.1(A)(1) have identical mens rea elements. See Oral Arg.
at 33:36–33:48 (“The specific intent standard is the same in Louisiana law regardless. It’s the
same instruction.”); see also, e.g., State v. Sepulvado, 672 So. 2d 158, 165 (La. 1996) (treating
the victim’s age as an objective element of La. R.S. 14:30(A)(5), rather than as part of the
mens rea); 17 Louisiana Civil Law Treatise: Criminal Jury Instructions § 10:7 (3d ed. updated
Nov. 2017) (“The defendant's knowledge of the victim’s age is not an element of [La. R.S.
14:30(A)(5)].”).
       6 The judge defined “second degree kidnapping” as “the enticing or persuading of any

person to go from one place to another when the victim is physically injured or sexually
abused.” In addition to the issues noted above, Langley’s attorneys contested whether J.G.
was sexually abused.
       7 The judge defined “cruelty to juveniles” as “the intentional or criminally negligent

mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of
seventeen whereby unjustifiable pain or suffering is caused to said child.” Langley’s attorneys
conceded to the jury that it could reasonably conclude that Langley committed cruelty to
juveniles.
                                               7
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                                       No. 16-30486
And he instructed that, if the jury found that the State had proved Langley’s
guilt beyond a reasonable doubt, but also found that Langley established his
insanity defense, the verdict “must be ‘not guilty by reason of insanity.’”
       The verdict form listed the possible responsive verdicts— “guilty,” “guilty
of second degree murder,” “guilty of manslaughter,” “not guilty by reason of
insanity,” and “not guilty”—and instructed the jury to return exactly one of
them. See La. Code Crim. Proc. Ann. arts. 809, 814(A)(1), 816. During deliber-
ations, the jury requested a written list of elements for each responsive verdict,
and a clarification of the phrase “great bodily harm” in the specific-intent re-
quirement. The judge provided the first requested item, but not the second.
       The jury returned a verdict finding Langley guilty of second degree mur-
der and, by implication from the verdict form and the judge’s instructions, ac-
quitting him of first degree murder. 8
                                               C
       Langley appealed his second-degree-murder conviction, and the Louisi-
ana Third Circuit Court of Appeal reversed and remanded for a new trial.
Langley III, 896 So. 2d at 212. The Third Circuit first held that the trial judge’s
misconduct amounted to structural error warranting reversal with no showing
of prejudice necessary. Id. at 207–10. Then, reasoning that the verdict was “an
absolute nullity,” the Third Circuit opined that Langley could be re-tried even
for first degree murder—notwithstanding his recent acquittal. Id. at 210–12.




       8  Under Louisiana law (as reflected in the jury’s instructions and verdict form), a ver-
dict of “guilty of second degree murder” is the only mechanism by which a jury can acquit a
defendant of first degree murder while also convicting him of second degree murder. See La.
Code Crim. Proc. Ann. arts. 809, 813, 814(A)(1). If the jury had returned a verdict of “not
guilty of first degree murder,” the judge would have been required to reject it. Id. art. 813.
Louisiana law further provides that, when a person is charged with first degree murder and
convicted of second degree murder, that verdict “is an acquittal” of the first-degree-murder
charge. Id. art. 598(A).
                                               8
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                                  No. 16-30486
      On remand, the defense moved to quash the first degree murder charge,
citing Fong Foo, 369 U.S. at 143, and Green, 355 U.S. at 188–91, on the ground
that Langley had just been acquitted of that exact crime. The trial court (this
time a new judge) granted the motion, ordering that the re-trial be limited to
second degree murder. The State sought interlocutory review, and the Third
Circuit summarily reversed.
      Granting certiorari, the Louisiana Supreme Court reversed the Third
Circuit, reinstated the trial judge’s order, and quashed the first degree murder
charge. State v. Langley (Langley IV), 958 So. 2d 1160, 1169–70 (La.) (citing
Green, 355 U.S. at 188), cert. denied, 552 U.S. 1007 (2007). The opinion held
that Langley’s second-degree-murder conviction operated as an implied acquit-
tal of first degree murder. Id. at 1170. That was so both because the jury in-
structions required the jury to acquit on first degree murder before considering
second, see id. at 1169–70, and because Louisiana law provides that “[w]hen a
person is found guilty of a lesser degree of the offense charged, the verdict . . .
is an acquittal of all greater offenses charged in the indictment,” id. at 1170
(quoting La. Code Crim. Proc. Ann. art. 598(A)).
                                        D
      The third trial took place in November 2009, with Langley now repre-
sented by his present-day counsel. Langley waived his right to a jury and pro-
ceeded via bench trial.
      On day one of trial, the State orally moved to amend the indictment to
reflect that only second degree murder was being charged. Langley’s counsel
agreed that the indictment should be amended, but also argued that the new
indictment must be limited to felony murder—raising the Ashe issue for the




                                        9
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                                      No. 16-30486
first time. 9 Specifically, Langley’s counsel contended (and continues to contend
today) that no rational jury could have returned the 2003 verdict without de-
ciding that the State failed to prove beyond a reasonable doubt that Langley
had specific intent to kill or to inflict great bodily harm. Thus, Langley’s coun-
sel argued, the State could not charge Langley with any crime requiring proof
of that same element, including the crime of specific-intent second degree mur-
der under La. R.S. 14:30.1(A)(1). See Ashe, 397 U.S. at 443–46. The court
granted the State’s motion and denied Langley’s from the bench. 10 The indict-
ment was formally amended to reflect charges for second degree murder under
both La. R.S. 14:30.1(A)(1) (specific intent) and La. R.S. 14:30.1(A)(2) (felony
murder).
       The next morning, however, the State orally dismissed the felony murder
charge, leaving only the charge of second degree murder based on specific in-
tent. The prosecutor explained that he had looked at the 1992 code the night
before and realized for the first time that the crimes of “second degree kidnap-
ping” and “cruelty to juveniles” were not enumerated felonies in the version of
the felony-murder statute in effect at the time of Langley’s alleged offense. 11


       9 As explained below, because the Louisiana courts ultimately addressed Langley’s
Ashe claim on the merits, procedural default is not at issue in this case. See infra note 39.
       10 The trial judge’s reasons for denying Langley’s Ashe claim provided in full:

                       I think I understand what you’re suggesting regarding
               the suggested acquittal by the jury in the last trial of this matter
               when they chose to convict him on the charge of Second Degree
               Murder as opposed to First Degree Murder.
                       My position, however, is that the charge of Second Degree
               Murder specifically indicates when the offender has a specific
               intent to kill or inflict great bodily harm. It may well be that the
               jury convicted him on that, which is inclusive in the First De-
               gree.
                       That being said, I'm denying your motion at this time.
       11 The 1992 version of second degree felony murder covered only committing or at-

tempting “aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated
kidnapping, aggravated escape, armed robbery, first degree robbery, or simple robbery.” La.
R.S. 14:30.1(A)(2) (1992).
                                             10
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                                       No. 16-30486
       The judge ultimately found Langley guilty of second degree murder. The
ruling explicitly stated that “[t]he issue of specific intent . . . is necessary for
the determination of guilt,” and found that the requisite specific intent was
present. Langley’s counsel renewed the Ashe objection in a post-trial motion,
but the judge stood by his earlier ruling. The judge then imposed the manda-
tory sentence of life imprisonment without parole. See La. R.S. 14:30.1(B).
                                               E
       On direct appeal, the Louisiana Third Circuit Court of Appeal rejected
Langley’s Ashe claim on its merits. State v. Langley (Langley V), 61 So. 3d 747,
757–58 (La. Ct. App. 2011). 12 The Third Circuit reasoned that the 2003 verdict
had not “necessarily determined” the issue of specific intent because the jury
might have chosen not to obey the judge’s instructions. See id. The Louisiana
Supreme Court declined review, 78 So. 3d 139 (La. 2012) (mem.), as did the
United States Supreme Court, 568 U.S. 841 (2012) (mem.).
       Less than one year later, Langley pressed his Ashe claim in a federal
habeas petition. See 28 U.S.C. § 2254. A magistrate judge issued a report and
recommendation that the petition be denied. Langley v. Prince (Langley VI),
No. 13-cv-2780, 2015 WL 10635328 (W.D. La. Dec. 14, 2015). The magistrate
judge disavowed the state court’s reasoning, substituting her own reasoning
instead. See id. at *8. According to the magistrate judge, Langley’s Ashe claim
failed because Langley had not shown that “a rational jury would not find that
Langley acted with specific intent to kill.” Id. The magistrate judge further



       12 Before analyzing issue preclusion (also known as collateral estoppel), the Third Cir-
cuit noted that Langley’s 2009 trial for second degree murder did not implicate the separate
body of double jeopardy law relating to re-prosecutions for the same crime following a convic-
tion. See Langley V, 61 So. 3d at 757 (citing State v. Mayeux, 498 So. 2d 701, 705 (La. 1986));
see also Burks, 437 U.S at 13, 16 (explaining that a vacated conviction is not a double jeopardy
bar to retrial, unless the conviction was vacated due to insufficiency of the evidence). Langley
does not challenge that conclusion, and the State does not argue that it is relevant to the
arguments presented here.
                                              11
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                                        No. 16-30486
reasoned that, because the jury rejected Langley’s insanity defense, the jury
could not have used evidence of Langley’s mental illness to find a lack of spe-
cific intent. Id. Then, because the magistrate judge could “locate no other
grounds within the record . . . to support a finding of no specific intent,” she
concluded that the issue “was not necessarily determined.” Id. The district
court adopted the report and recommendation in full and dismissed Langley’s
petition. It did, however, issue a certificate of appealability, permitting our re-
view.
                                               II
        Because the state court rejected Langley’s Ashe claim on its merits, see
Langley V, 61 So. 3d at 757–58, Langley is not entitled to federal habeas relief
unless that adjudication
              resulted in a decision that was contrary to, or involved
              an unreasonable application of, clearly established
              Federal law, as determined by the Supreme Court of
              the United States.
28 U.S.C. § 2254(d)(1). 13 This standard “stops short of imposing a complete bar
on federal-court relitigation of claims already rejected in state court proceed-
ings,” Harrington v. Richter, 562 U.S. 86, 102 (2011)—but it comes close. Re-
view under § 2254(d)(1) must be “highly deferential” to the state court’s deci-
sion, and must give that decision “the benefit of the doubt.” Cullen v. Pinhol-
ster, 563 U.S. 170, 181 (2011). The district court’s application of § 2254(d)(1) is
reviewed de novo. Williams v. Thaler, 684 F.3d 597, 603 (5th Cir. 2012).




         The route to habeas in 28 U.S.C. § 2254(d)(2) for state-court adjudications “based
        13

on an unreasonable determination of the facts” is inapplicable here. The application of the
Ashe doctrine turns on no facts other than “the record[s] of . . . prior proceeding[s],” 397 U.S.
at 444, which in this case “[t]he parties do not dispute,” Price v. Vincent, 538 U.S. 634, 639–
40 (2003). See also United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997) (noting that
Ashe presents a pure question of law).
                                              12
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                                  No. 16-30486
      For purposes of § 2254(d)(1), “clearly established Federal law” means
“the governing legal principle or principles set forth by the Supreme Court at
the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S.
63, 71–72 (2003). In other words, it includes the applicable Supreme Court
holdings, but not “the dicta.” Id. at 71. Law may be clearly established by the
Supreme Court even if the Court has not rendered a decision “on nearly iden-
tical facts”; rather, it is enough if Supreme Court holdings clearly establish “a
general standard.” Marshall v. Rodgers, 569 U.S. 58, 62 (2013) (per curiam).
      The “contrary to” and “unreasonable application” clauses, moreover,
“have independent meaning.” Bell v. Cone, 535 U.S. 685, 694 (2002). The “con-
trary to” clause is met “if the state court applies a rule different from the gov-
erning law set forth in [Supreme Court] cases, or if it decides a case differently
than [the Supreme Court] ha[s] done on a set of materially indistinguishable
facts.” Id. The “unreasonable application” clause, in turn, is met “if the state
court identifies the correct governing legal rule” but “unreasonably applies it”
to the facts of the case, or “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where
it should apply.” Terry Williams v. Taylor, 529 U.S. 362, 407 (2000).
      “[A]n unreasonable application is different from an incorrect one.” Bell,
535 U.S. at 694. To be an “unreasonable application,” the state court’s error
must have been “well understood and comprehended in existing law beyond
any possibility for fair-minded disagreement.” Richter, 562 U.S. at 108. And,
under our circuit’s interpretation of the “unreasonable application” clause, we
review only the reasonableness of the state court’s “ultimate legal conclusion,”
as distinct from the thoroughness or quality of its written opinion. Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam).


                                        13
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                                        No. 16-30486
       Along these lines, our court has stated that review under § 2254(d)(1)
encompasses not just the arguments and legal theories the state court’s opinion
actually gave, but also any arguments or legal theories the state court reason-
ably could have given. E.g., Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017)
(citing Richter, 562 U.S. at 102); Clark v. Thaler, 673 F.3d 410, 418 (5th Cir.
2012) (same). 14 Langley argues that the Supreme Court unequivocally rejected
this approach in Wilson v. Sellers, 138 S. Ct. 1188, 1191–92, 1194–96 (2018),
issued after oral argument in this case. 15 We leave Wilson’s impact to be de-
cided another day. Because Langley is entitled to relief even under “Richter’s
‘could have supported’ framework,” id. at 1195, we assume for the limited pur-
pose of this appeal that, where the state court denies the petitioner’s claim by
issuing an opinion that rests on objectively unreasonable grounds, § 2254(d)(1)
still bars relief unless the petitioner “show[s] there was no reasonable basis for
the state court to deny relief,” Richter, 562 U.S. at 98.




       14  Richter mandated the “could have supported” framework for cases in which the state
court’s order denying relief “is unaccompanied by an opinion.” 562 U.S. at 98. Our court has
understood that same framework to apply even where a state-court opinion exists. E.g., Ev-
ans, 875 F.3d at 216; Clark, 673 F.3d at 418; see also Santellan v. Cockrell, 271 F.3d 190,
193–94 (5th Cir. 2001) (“It would be odd to require a less deferential approach to reasonable-
ness in cases where the state courts attempted to articulate reasons for their decisions than
in those where they did not.”). It is unclear the extent to which our en banc decision in Neal—
which merely elaborated the state court’s given justification, as opposed to fashioning a new
legal theory from whole cloth—endorses the same “could have supported” approach. Compare
286 F.3d at 243, with id. at 246–47.
        15 Wilson instructed that § 2254(d) “requires the federal habeas court to ‘train its at-

tention on the particular reasons—both legal and factual—why state courts rejected a state
prisoner’s federal claims.’” 138 S. Ct. at 1191–92 (quoting Hittson v. Chatman, 135 S. Ct.
2126, 2126 (2015) (Ginsburg, J., concurring in denial of certiorari)). It further explained that,
when a state court opinion exists, this inquiry is “straightforward”: “a federal habeas court
simply reviews the specific reasons given by the state court and defers to those reasons if
they are reasonable.” Id. at 1192. And Wilson held that “Richter does not control . . . where
there is a reasoned decision by a lower state court.” Id. at 1195.
                                              14
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                                  No. 16-30486
                                       III
                                        A
      The “starting point” for our analysis is to identify the relevant Supreme
Court precedent that was clearly established when the state court issued its
opinion. Marshall, 569 U.S. at 61. Here, that precedent is the Double Jeopardy
Clause’s issue-preclusion component, as set forth in Ashe v. Swenson, 397 U.S.
436, 443–46 (1970), and related cases. The Ashe doctrine “precludes the Gov-
ernment from relitigating any issue that was necessarily decided by a jury’s
acquittal in a prior trial.” Yeager v. United States, 557 U.S. 110, 119 (2009).
      The challenge, of course, is deciphering exactly which issues (if any) a
jury’s verdict “necessarily decided.” The use of general verdict forms muddies
the analysis, as general verdicts say little if anything about the jury’s specific
rationale. Brackett, 113 F.3d at 1398–99. But the Supreme Court in Ashe did
not leave it to the states to crack this puzzle. Rather, it prescribed a specific
solution: When the prior acquittal “was based upon a general verdict, as is
usually the case,” the reviewing court must
            examine the record of prior proceeding, taking into ac-
            count the pleadings, evidence, charge, and other rele-
            vant matter, and conclude whether a rational jury
            could have grounded its verdict upon an issue other
            than that which the defendant seeks to foreclose from
            consideration.
397 U.S. at 444 (emphasis added). In other words, the court must ask whether
a rational jury could have returned the same verdict without deciding the rel-
evant factual issue. See United States v. El-Mezain, 664 F.3d 467, 552–53 (5th
Cir. 2011) (citing United States v. Leach, 632 F.2d 1337, 1340 (5th Cir. 1980)).
If not, that issue was “necessarily decided.”
      The facts of Ashe are illustrative. A group of masked men robbed six par-
ticipants in a poker game. 397 U.S. at 437. The state charged Bob Ashe with


                                       15
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                                  No. 16-30486
six separate counts of robbery—one for each player. Id. at 438. At Ashe’s trial
for the robbery of poker player Donald Knight, however, the jury acquitted. Id.
at 439. The question was whether the state could proceed to try Ashe for the
robberies of the other five players.
      It could not. After announcing the test described above, the Supreme
Court held that the jury had “determined by its verdict that [Ashe] was not one
of the robbers.” Id. at 446. The jury instructions had stated in effect that the
jury was required to find Ashe guilty if it found (1) that the alleged robbery
had occurred; (2) that the robbers had taken “any money” from Knight; and (3)
that Ashe had been one of the robbers, whether or not Ashe had personally
taken the money. See id. at 439 & nn.2, 3. At trial, the evidence that the alleged
robbery took place and that the robbers had taken money from Knight was
strong and undisputed. Id. at 438. The evidence of the robbers’ identities, on
the other hand, was weak. Id. So the “single rationally conceivable” basis for
the jury’s acquittal was that the jury was not convinced beyond a reasonable
doubt that Ashe had been one of the robbers. Id. at 445. As a result, the state
could not “hale him before a new jury to litigate that issue again.” Id. at 446.
      Ashe and the Supreme Court cases applying it clearly establish the fol-
lowing relevant governing principles:
      First, the subject of the Ashe inquiry is a hypothetical, objective, and ra-
tional jury—not the actual jurors in the room. The question is not what these
particular jurors decided, but rather what a rational jury could have decided
if faced with the trial record. That, after all, is what Ashe literally says. See
397 U.S. at 444 (test asks what “a rational jury could have” done); see also id.
at 445 (issue necessarily decided because it was “[t]he single rationally con-
ceivable issue in dispute”). The Supreme Court has since reiterated that “what
transpired in the jury room” is beside the point; the Ashe inquiry is “confined
to the points in controversy on the former trial, to the testimony given by the
                                        16
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                                   No. 16-30486
parties, and to the questions submitted to the jury for their consideration.”
Yeager, 557 U.S. at 122 (quoting Packet Co. v. Sickles, 72 U.S. (5 Wall.) 580,
593 (1866)); see also, e.g., United States v. Powell, 469 U.S. 57, 67 (1984)
(“Courts have always resisted inquiring into a jury’s thought processes . . . .”);
Garcia v. Dretke, 388 F.3d 496, 503–04 (5th Cir. 2004) (understanding Ashe to
clearly establish for purposes of § 2254(d)(1) that “[o]ur inquiry into the poten-
tial rationale of the first jury . . . must stay within the bounds of a rational[]
inquiry”).
      Second, and as a corollary, Ashe is in fact “predicated on the assumption
that the jury acted rationally.” Powell, 469 U.S. at 68 (emphasis added). Thus,
when the first jury returns “irreconcilably inconsistent” verdicts—meaning
verdicts that acquit on one count while convicting on another, where the two
counts require opposite resolutions of the same issue of ultimate fact—Ashe no
longer applies. Bravo-Fernandez v. United States, 137 S. Ct. 352, 356–57 (2016)
(construing Powell, 469 U.S. at 68). But so long as the jury’s verdicts are not
“on their face . . . logically inconsistent,” Ashe still controls: the court must “re-
spect . . . the legitimacy” of the verdicts and assume the jury rational. Yeager,
557 U.S. at 124–25; see also id. at 134 (Alito, J., dissenting) (agreeing that
“courts should begin with the presumption that a jury’s actions can rationally
be reconciled”).
      Third, Ashe itself establishes that the court must assume the hypothet-
ical jury believed any “substantial and uncontradicted evidence of the prosecu-
tion on a point the defendant did not contest.” 397 U.S. at 444 n.9. Otherwise,
the Supreme Court explained, issue preclusion would never apply, “since it is
impossible to imagine a statutory offense in which the government has to prove
only one element or issue to sustain a conviction.” Id. This principle was essen-
tial to Ashe’s holding. Without it, the issues whether the robbery occurred at
all and whether any money was taken from Knight would have been additional
                                         17
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                                  No. 16-30486
“rationally conceivable issue[s] in dispute” that would have foreclosed relief.
See id. at 445.
      Fourth and finally, a court applying Ashe must assume that the jury—
being a rational one—followed its jury instructions. This principle is implicit
in the concept of a rational jury and in the Supreme Court’s reasoning in Ashe.
See, e.g., United States v. Tran, 433 F. App’x 227, 231 (5th Cir. 2011) (under-
standing Ashe’s use of the phrase “rational jury” to mean a jury that obeys its
instructions). And the Supreme Court made that principle explicit when it de-
cided Turner v. Arkansas, 407 U.S. 366 (1972) (per curiam).
      In Turner, the state had tried Dennis Turner for first degree murder on
theories of premeditated murder and felony-murder committed in the course
of a robbery. Id. at 369. After the jury acquitted on both theories, the state re-
indicted him for the robbery itself. Id. at 367. Turner argued that the acquittal
had necessarily decided that he did not commit the robbery. Id. at 368. The
state countered that a rational jury could have found that Turner did commit
the robbery but that he had let his partner do the killing. Id. at 369.
      The Supreme Court rejected the state’s argument as “belied by the actual
instructions given the jury.” Id. Those instructions had stated that “[a]ll per-
sons being present . . . in any felony, shall be deemed principal offenders.” Id.
Thus, the Supreme Court said, “[h]ad the jury found [Turner] present at the
crime scene, it would have been obligated to return a verdict of guilty of murder
even if he had not actually pulled the trigger.” Id. “The only logical conclusion,”
the Court held, “is that the jury found him not present at the scene of the mur-
der and robbery.” Id. The case was “thus squarely controlled by Ashe,” necessi-
tating the indictment’s dismissal. Id. at 370.
      Supreme Court precedent, accordingly, clearly establishes that the Ashe
doctrine incorporates the understanding (ubiquitous in law) that rational ju-
ries obey their instructions. See also, e.g., Powell, 469 U.S. at 66–67 (jurors
                                        18
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                                       No. 16-30486
generally assumed to follow the law as charged); Opper v. United States, 348
U.S. 84, 95 (1954) (“Our theory of trial relies upon the ability of a jury to follow
instructions.”).
       Thus explicated by the Supreme Court, Ashe analysis is often not diffi-
cult. When the trial record contains multiple disputed factual issues, any sub-
set of which could independently justify the jury’s verdict, there can be no issue
preclusion. E.g., Garcia, 388 F.3d at 501–02 (citing United States v. Irvin, 787
F.2d 1506, 1515–16 (11th Cir. 1986)). 16 But in the rare instance in which there
is just a “single rationally conceivable issue in dispute before the jury,” Ashe,
397 U.S. at 444, issue preclusion attaches. 17
       Our opinion in United States v. Brackett, 113 F.3d 1396 (5th Cir. 1997),
for example, shows just how simple the Ashe inquiry can be. 18 George Brackett
had been tried for possession of marijuana with intent to distribute. Id. at
1397. “At trial, he did not contest the fact that he had been in possession” of
marijuana. To the contrary, “the prosecution and the defense both acknowl-
edged that mens rea was the only disputed issue for the jury.” Id. The jury


       16  See, e.g., El-Mezain, 664 F.3d at 555 (issue not necessarily decided where the jury
could have acquitted either because the state failed to prove that the defendant joined the
conspiracy, or because the state failed to prove that he did so willfully); United States v.
Sarabia, 661 F.3d 225, 231 (5th Cir. 2011) (issue not necessarily decided where the jury could
have acquitted either because the state failed to prove that the defendant was driving the
relevant vehicle, or because the state failed to prove that the defendant was a party to the
conspiracy); Garcia, 388 F.3d at 500 (issue not necessarily decided where the jury could have
acquitted either because the state failed to prove that a robbery occurred, or because the state
failed to prove that the murder took place during the robbery).
        17 As Justice Alito has noted, Ashe “is a demanding standard.” Yeager, 557 U.S. at 133

(Alito, J., dissenting). “The second trial is not precluded simply because it is unlikely—or
even very unlikely—that the original jury acquitted without finding the fact in question. Only
if it would have been irrational for the jury to acquit without finding that fact is the subse-
quent trial barred.” Id. at 133–34; accord id. at 126–27 (Kennedy, J., concurring in part and
concurring in the judgment).
        18 Although we may not use Fifth Circuit precedent “to refine or sharpen a general

principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court
has not announced,” Marshall, 569 U.S. at 64, we may use circuit cases to illustrate (but not
expand upon) principles the Supreme Court has already announced.
                                              19
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                                      No. 16-30486
acquitted. Id. Our analysis of what that acquittal “necessarily decided,” there-
fore, was appropriately straightforward. We explained:
                     It is not difficult to discern the facts “necessarily
              decided” by the jury in the first trial. Brackett did not
              deny that he was in possession of 247 kilograms of ma-
              rihuana when arrested, nor did he contest the physical
              evidence and eyewitness testimony. To the contrary,
              he freely conceded all the facts relevant to the actus
              reus and staked his defense exclusively on the ques-
              tion of mens rea.
                     Insisting that he had no knowledge of the mari-
              huana, Brackett characterized himself as an innocent
              driver who had been used as an unwitting drug courier
              by drug smugglers, and the jury apparently believed
              him. Under these circumstances, there is only one ra-
              tional explanation for the general verdict of acquittal:
              The government did not prove, beyond a reasonable
              doubt, that Brackett knew of the 247 kilograms of ma-
              rihuana in his truck on September 18, 1992. Accord-
              ingly, the jury “necessarily decided” . . . that Brackett
              did not knowingly possess marihuana with intent to
              distribute on that date. 19
Id. at 1399 (emphasis added). Likewise, in Green v. Estelle, 601 F.2d 877 (5th
Cir. 1979), a jury acquitted Roy Green of murder “with malice” but convicted
him of murder “without malice.” Id. at 877. The jury instructions permitted
that result only if the jury “f[ound] [Green] guilty of murder” while still
“hav[ing] reasonable doubt that [he] . . . acted with malice.” Id. at 878. These
verdicts, coupled with Ashe’s presupposition of a rational jury, “[necessarily]
determined the malice issue in Green’s favor.” Id.; see also id. at 878–79 & n.4




       19  Brackett went on to hold that, although the issue had been “necessarily decided,”
the issue did not constitute an essential element of the offense charged in the subsequent
prosecution. 113 F.3d at 1399–40. It is undisputed in this case that the issue of Langley’s
specific intent was an essential element of Langley’s 2009 prosecution. See supra p. 11.
                                            20
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                                       No. 16-30486
(emphasizing that Ashe requires the assumption that the jury followed its in-
structions). As explained below, Langley’s Ashe claim is similarly straightfor-
ward.
                                              B
        Here, Langley contends that the 2003 jury verdict necessarily deter-
mined that he lacked the specific intent to kill or to inflict great bodily harm
at the moment he killed J.G. To resolve his claim, we must consider the record
from the 2003 trial and ask: Could a rational jury have returned this same
verdict without deciding that the State failed to prove beyond a reasonable
doubt that Langley had specific intent to kill or to inflict great bodily harm?
See Ashe, 397 U.S. at 444. 20 Given the above-recited principles of clearly estab-
lished Supreme Court law, the answer can only be “no.” The issue of Langley’s
specific intent was necessarily decided.
        The jury instructions required the jury to return a verdict of “guilty [of
first degree murder]” if all four of the following conditions were met:
        (1) The jury found beyond a reasonable doubt that Langley killed J.G.;
        (2) The jury found beyond a reasonable doubt that J.G. was less than
             twelve years old;
        (3) The jury found beyond a reasonable doubt that Langley acted with
             specific intent to kill to or inflict great bodily harm; and
        (4) The jury failed to find by a preponderance of the evidence that Lang-
             ley was insane at the time of the offense.



        20It is immaterial that the jury’s verdict was formally denominated “guilty of second
degree murder,” as opposed to “not guilty of first degree murder.” See supra note 8. It is
likewise immaterial that Louisiana law deemed the verdict to be a first-degree-murder ac-
quittal. See Schiro v. Farley, 510 U.S. 222, 232 (1994); cf. La. Code Crim. Proc. Ann. art.
598(A); Langley IV, 958 So. 2d at 1170. Rather, what matters for purposes of Ashe is whether,
in light of the issues and arguments presented at trial, a rational jury could have returned
the verdict without deciding the relevant factual issue. See Schiro, 510 U.S. at 236; Ashe, 397
U.S. at 444.
                                              21
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                                        No. 16-30486
But the jury did not return a verdict of “guilty [of first degree murder].” Be-
cause Ashe requires us to assume that the jury acted rationally and obeyed the
judge’s instructions, the jury rationally must have failed to make at least one
of these four findings.
       We know, however, that the jury rationally did make findings (1) and
(2). Like Brackett, Langley “freely conceded all the facts relevant to the actus
reus.” 113 F.3d at 1399. He confessed to the killing, and his lawyers repeatedly
told the jury that they “had never from the very beginning even suggested that
[Langley] was not the cause of [J.G.]’s death.” Nor could there have been any
doubt that the victim was under twelve. The defense repeatedly acknowledged
to the jury that J.G. was six years old when he died. Under Ashe, therefore, the
court must assume that a rational jury would have found these two elements
established beyond a reasonable doubt. See 397 U.S. at 444 n.9.
       We also know the jury rationally must have fulfilled condition (4). We
know this because the jury instructions stated that, if the jury found by a pre-
ponderance of the evidence that Langley was insane at the relevant time, the
jury was required to return a verdict of “not guilty by reason of insanity.” But
the jury did not return such a verdict. So, again, given our assumption that the
jury acted rationally, and given that a rational jury obeys both the rules of logic
and the judge’s instructions, the jury rationally could not have based its verdict
on Langley’s putative insanity defense.
       “The only logical conclusion,” Turner, 407 U.S. at 369, is that the jury
failed to make finding (3)—that is, failed to find beyond a reasonable doubt
that Langley acted with specific intent to kill or to inflict great bodily harm.
Any other result would be irrational or contravene the judge’s instructions. 21


       21 Nothing about this result contradicts the jury’s verdict finding Langley guilty of
second degree murder. As the trial judge explained, second degree murder can be satisfied
on a felony murder theory, “even though [the defendant] has no intent to kill or to inflict great
                                              22
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                                       No. 16-30486
Ashe’s test is therefore satisfied: “[no] rational jury could have grounded its
verdict upon an issue other than” that of Langley’s specific intent. 397 U.S. at
444. As in Ashe, therefore, the Double Jeopardy Clause prohibits the State
from “hal[ing]” Langley into court “to litigate that issue again.” Id. at 446. Be-
cause that is what the State proceeded to do, see supra p. 11, Langley’s 2009
conviction was unconstitutional under any reasonable application of the Su-
preme Court’s clearly established principles of the Ashe v. Swenson doctrine.
       Langley is therefore entitled to federal habeas relief.
                                             IV
       The state court’s opinion, the federal magistrate judge’s opinion, and the
State’s arguments on appeal all purport to articulate reasonable grounds on
which the state court could have based its denial of Langley’s Ashe claim. But
because we have just deemed Langley’s conviction invalid under any reasona-
ble application of Ashe, it follows that these proffered, conflicting rationales
must themselves be contrary or unreasonable under the § 2254(d)(1) standard.
Our analysis could end here. Nonetheless, out of an abundance of caution, we
pause to confirm that none of the proffered rationales could have “otherwise
justif[ied] the state court’s result.” Richter, 562 U.S. at 102. 22
                                              A
       The state court rejected Langley’s Ashe claim because, although it re-
garded insufficient evidence of intent as one possible basis for the jury’s verdict,
it could imagine two other possibilities, as well. See Langley V, 61 So. 3d at
757. The first additional possibility was “that the jury convicted the defendant



bodily harm.” La. R.S. 14:30.1(A)(2); see also supra notes 6 & 7 (noting that neither of the
relevant felonies had specific intent as a necessary element).
       22 As noted above, we assume for purposes of this opinion that Richter’s “could have

supported” framework applies to this case, notwithstanding that the state court issued a rea-
soned opinion. See supra p. 14; see also Wilson, 138 S. Ct. at 1194–95 (criticizing the “could
have supported” approach for being inefficient).
                                             23
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                                       No. 16-30486
of specific intent second degree murder” under La. R.S. 14:30.1(A)(1). Id. The
second additional possibility was “that, given the nature of the case, the verdict
was, in fact, a compromise verdict.” Id. Neither possibility is reasonably valid
under Ashe. 23
                                               1
       To start, it was objectively unreasonable for the state court to conclude
that a rational jury could have “convicted [Langley] of specific intent second
degree murder” in light of Langley’s concessions. Like in Turner, that theory
“is belied by the actual instructions given the jury.” 407 U.S. at 369. As ex-
plained above, the trial judge instructed that the verdict “should be ‘guilty [of
first degree murder]’” if the jury rejected Langley’s insanity defense and found
beyond a reasonable doubt that (1) Langley killed J.G., (2) Langley had specific
intent to kill or inflict great bodily harm, and (3) J.G. was under twelve. See
La. R.S. 14:30(A)(5). A rational jury, however, must have rejected the insanity
defense (given that it failed to return an insanity verdict), and must have found




       23 The state court’s Ashe analysis provided in full:
               When a lesser included offense to the crime charged is returned
               by a jury it is not always possible to determine why that verdict
               was reached. It is possible that the jury convicted the defendant
               of specific intent second degree murder. It is possible that the
               jury verdict was based on a jury finding under the felony-murder
               rule, and the jury determined there was no specific intent to kill.
               It is equally plausible that, given the nature of the case, the ver-
               dict was, in fact, a compromise verdict. Regardless of the jury’s
               thought process in this particular case, clearly the argument
               that the issue of specific intent was “necessarily determined” is
               unsupported.
Langley V, 61 So. 3d at 757–58. Given the state court’s reference to “the jury’s thought process
in this particular case,” it is arguably ambiguous whether the state court failed to heed Ashe’s
explicit holding, i.e., failed to ask “whether a rational jury could have grounded its verdict
upon an issue other than” that of Langley’s specific intent. 397 U.S. at 444. Nonetheless,
because we give the state court’s decision “the benefit of the doubt,” Pinholster, 563 U.S. at
181, we assume the state court was attempting to describe the possible grounds on which a
rational jury could have based the verdict.
                                              24
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                                      No. 16-30486
that Langley killed J.G. and that J.G. was under twelve (the uncontested is-
sues). See Ashe, 397 U.S. at 444 & n.9. Thus, if the jury had found that Langley
had specific intent to kill or to inflict great bodily harm—as the state court
suggested the jury rationally might have done—the jury “would have been ob-
ligated to return a verdict of guilty of [first degree] murder,” not second.
Turner, 407 U.S. at 369. So no rational jury could have taken the path the state
court’s opinion proposes. 24
                                             2
       It was also objectively unreasonable for the state court to conclude that
a rational jury could have returned a “compromise verdict”—that is, could have
based its verdict not on the judge’s instructions, but on the jurors’ negotiated
preferences as to the proper outcome in the case. 25 This possibility, too, contra-
venes the clearly established rule that, under the Ashe doctrine, rational juries
are assumed to follow the law as instructed. See, e.g., Turner, 407 U.S. at 369.
       In fact, as early as 1979, our court held that the Supreme Court in Ashe
“[c]learly . . . intended” that the risk of jury nullification in the form of a “mercy
verdict” could not justify denying an Ashe v. Swenson claim. See Green, 601
F.2d at 878–79 & n.4 (holding that acquittal of murder “with malice,” paired
with simultaneous conviction for murder “without malice,” necessarily decided
the issue of the defendant’s intent). As we then explained, the assertion that
the jury’s verdict could have resulted from the exercise of mercy, as opposed to



       24  We do not read the state court’s opinion to assert that a rational jury could have
convicted Langley of specific-intent second degree murder “without ever deliberating” on
whether Langley was guilty of first degree murder. See Schiro, 510 U.S. at 234. The State’s
briefs never make such an argument—and for good reason. The judge’s instructions were
clear that the jury could not convict Langley of second degree murder without first rejecting
the first degree murder charge. See supra Part I–B.
        25 See Compromise Verdict, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A verdict

reached when jurors, to avoid a deadlock, concede some issues so that other issues will be
resolved as they want.”).
                                             25
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                                         No. 16-30486
the judge’s instructions, “could be made about any ultimate issue of fact de-
cided by a jury.” Id. If that possibility sufficed to defeat an Ashe claim, we said,
no court “could []ever apply the principle of [issue preclusion],” even on the
facts of Ashe itself. Id. at 878–79 & n.4. We thus held:
               Clearly, this is not what the Supreme Court intended
               when it held that the principle [of issue preclusion] is
               a part of the Double Jeopardy Clause. We must take
               the jury at its word, and in this case, its word shows
               that in the first murder trial it decided the issue of
               malice in [the defendant’s] favor.
Id. at 879 (citation omitted) (emphasis added). Our cases repeatedly have reit-
erated this holding. 26 Other circuits unanimously agree. 27



       26   See Tran, 433 F. App’x at 231 (“[I]f we consider jury nullification as a basis on which
the jury might have acquitted . . . , we would in effect be eliminating the entire doctrine of
[issue preclusion] . . . .” (quoting United States v. Leach, 632 F.2d 1337, 1341 n.12 (5th Cir.
1980))); Neal v. Cain, 141 F.3d 207, 211 (5th Cir. 1998) (“That [the defendant] was convicted
on the lesser-included offense . . . seems to represent a compromise between those members
of the jury favoring conviction and those favoring acquittal. Nevertheless, our task is to make
legal sense of the jury’s verdict.”); De La Rosa v. Lynaugh, 817 F.2d 259, 267–68 (5th Cir.
1987) (“Although in our concept of double jeopardy the law must recognize that a jury can act
in an irrational manner—even to the point of ignoring the law or the Judge’s instructions in
a blend of undecipherable mercy—we must proceed on the basis that the jury in the first trial
acted in a legally correct manner. Otherwise, the ultimate issue of fact decided by any jury
could be second guessed and we could never apply the principle of [issue preclusion].”).
         27 See, e.g., United States v. Brown, 983 F.2d 201, 202–03 (11th Cir. 1993) (“We also

deem it essential in th[e] [Ashe] inquiry to apply the well-recognized presumption that a jury
follows its instructions. While the possibility of jury nullification may influence the strategy
of trial lawyers, it cannot enter into the analysis of courts making [issue preclusion] inquiries.
The presumption that juries follow their instructions is necessary to any meaningful search
for the reason behind a jury verdict.” (citations omitted)); United States v. Seley, 957 F.2d
717, 723 (9th Cir. 1992) (“If we approached every acquittal suspecting that the jury may have
nullified, acquittals could never be said to settle questions of ultimate fact, and Ashe would
mean nothing at all.”); United States v. Mespoulede, 597 F.2d 329, 333 n.7 (2d Cir. 1979)
(“[T]he Government suggests that the jury may have compromised, and hence what was ac-
tually decided can never be known. But this assertion is made in the teeth of clear case law
that the possibility that the jury acquitted out of a desire to compromise or to show mercy, or
from ‘simple frustration after hours of tedious debate,’ is not a basis for refusing to apply
[issue preclusion]. A contrary rule would, of course, eviscerate the doctrine altogether, for no
one who is not present during the jury’s deliberations can ever know precisely how the jury
reached its verdict.” (citations omitted)).
                                               26
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                                  No. 16-30486
      These circuit-level cases, of course, cannot themselves establish that this
principle was “clearly established Federal law, as determined by the Supreme
Court”; Ashe and Turner are necessary (and sufficient) to do that. See supra
pp. 18–19 (explaining that Ashe and Turner clearly established that rational
juries obey their instructions). These cases merely confirm that Ashe and
Turner are understood to mean what they said: that the Ashe doctrine presup-
poses a rational jury, and presupposes that rational juries return verdicts
based on the facts and the law. We hold that this law was clearly established
by the Supreme Court in Ashe and Turner well before the state court issued its
2011 opinion, and we further hold that the state court’s disregard for this law
constituted an objectively unreasonable application of Ashe.
                                        B
      The district court adopted in full the magistrate judge’s opinion, which
rejected Langley’s Ashe claim for different reasons. See Langley VI, 2015 WL
10635328, at *8–9. Unlike the state court, the magistrate judge correctly re-
fused to consider the possibility of “‘mistake, compromise, or lenity’ on the part
of the jury.” Id. at *8 (quoting Powell, 469 U.S. at 65). Instead, the magistrate
judge went on to provide her own, independent analysis as to why Langley’s




                                       27
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                                       No. 16-30486
Ashe claim fails. See id. at *8–9. 28 That analysis, too, failed reasonably to apply
clearly established Supreme Court precedent. 29
                                               1
       The central problem with the magistrate judge’s reasoning is that it
asked the wrong question. As explained (at length) above, Ashe requires courts
to determine whether it is rationally possible for the jury to have yielded the
verdict it did without deciding the relevant factual issue. See, e.g., 397 U.S. at
444; El-Mezain, 664 F.3d at 552–53. The magistrate judge’s opinion, however,
failed to undertake that analysis. Instead, it appears to have asked a wholly
different question: whether sufficient evidence existed to justify acquitting


       28  The magistrate judge’s analysis stated in full:
                       After choking [J.G.], Langley strangled him and then
               forced a sock down his mouth and well into his throat. He con-
               fessed to this manner of killing on at least four separate occa-
               sions, three of which were played for the jury at trial and corrob-
               orated by the physical evidence. Additionally, the jury was spe-
               cifically instructed that intent could be inferred from the circum-
               stances and that individuals were presumed to intend the natu-
               ral consequences of their actions. “Sturdier threads are needed,”
               therefore, to support a finding that a rational jury would not find
               that Langley acted with specific intent to kill. United States v.
               Dray, 901 F.2d 1132, 1140 (1st Cir. 1990).
                       The defense based its refutation of specific intent
               squarely and solely within Langley's alleged insanity. It con-
               tended that he could not have intended to kill [J.G.] because his
               mental illness prevented him from distinguishing right from
               wrong. However, the jury failed to find Langley not guilty by
               reason of insanity. Under the insanity instruction used at trial,
               then, the jury must have failed to find that Langley was incapa-
               ble of distinguishing right from wrong. Therefore it could not
               have used this same element to find that he lacked specific in-
               tent.
                       We can locate no other grounds within the record of the
               second trial to support a finding of no specific intent. Accordingly
               we find that the issue was not necessarily determined in Lang-
               ley's favor during the second trial.
Langley VI, 2015 WL 10635328, at *8–9.
        29 Again, we need not address Langley’s argument that the magistrate judge erred out

of the gate by failing to “review[] the specific reasons given by the state court and defer[] to
those reasons if they are reasonable.” Wilson, 138 S. Ct. at 1192; see supra p. 14.
                                              28
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                                     No. 16-30486
Langley of first degree murder. In other words, the magistrate judge sat as a
thirteenth juror, evaluated for herself the strength of the evidence, and con-
cluded that any rational jury would have found Langley guilty of first degree
murder. The magistrate judge then used her disagreement with the verdict as
a basis for depriving the jury’s acquittal of double jeopardy effect. See Langley
VI, 2015 WL 10635328, at *8–9 (rejecting Langley’s Ashe claim because, disre-
garding the substantial evidence of Langley’s mental illness which the magis-
trate judge refused to consider, “no . . . grounds . . . support a finding of no spe-
cific intent”). 30 In short, instead of performing an Ashe analysis of the kind
prescribed by the Supreme Court, the magistrate judge appears to have as-
sessed whether the Louisiana prosecutors were entitled to judgment as a mat-
ter of law. Cf. Fed. R. Civ. P. 50(a).
      Not only did the magistrate judge fail to apply the test mandated by
Ashe, the test it did apply cannot be reconciled with “[p]erhaps the most fun-
damental rule in the history of double jeopardy jurisprudence”: the rule that
an acquittal—even one based on egregious legal or factual error—is absolutely
conclusive. United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977)
(citing United States v. Ball, 163 U.S. 662, 671 (1896)); accord, e.g., DiFran-
cesco, 449 U.S. at 129–30; Fong Foo, 369 U.S. at 143; Green, 355 U.S. at 188. If
the Double Jeopardy Clause means anything, it means that the government,
having failed to persuade one factfinder, is constitutionally prohibited from at-
tempting “a second bite at the apple.” Burks, 437 U.S. at 16; see also, e.g.,
Green, 355 U.S. at 187–88. And double jeopardy issue preclusion “is constitu-
tionally no different.” Ashe, 397 U.S. at 446. As the Supreme Court’s Ashe cases




      30 The magistrate judge refused to consider evidence of Langley’s mental illness for
reasons that are independently flawed, as discussed below.
                                           29
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                                         No. 16-30486
have explained: “A jury’s verdict of acquittal represents the community’s col-
lective judgment regarding all the evidence and arguments presented to it.
Even if the verdict is ‘based upon an egregiously erroneous foundation,’ its fi-
nality is unassailable.” Yeager, 557 U.S. at 122–23 (quoting Fong Foo, 369 U.S.
at 143); accord Powell, 469 U.S. at 67; Ashe, 397 U.S. at 446. This clearly es-
tablished finality doctrine leaves no room for courts “to second-guess the
soundness of [the jury’s] verdict.” Yeager, 557 U.S. at 125.
       There is, of course, an exception to the Ashe rule, applicable only if the
jury returns verdicts that are “on their face . . . logically inconsistent.” Yeager,
557 U.S. at 125 (construing Powell, 469 U.S. at 68); accord Bravo-Fernandez,
137 S. Ct. at 356–57, 359–60 (same). But no one has ever argued that this ex-
ception applies here. 31 Indeed, it does not: there is no inconsistency in finding
that, although Langley killed J.G. while committing or attempting the crimes
of second degree kidnapping or cruelty to juveniles, his mental illness pre-
vented him from forming the specific intent to kill or to inflict great bodily
harm. 32 Given such findings, the judge’s instructions would have compelled a
rational jury to acquit on first degree murder, see La. R.S. 14:30(A)(1), (5), but
to convict on second degree murder, see id. 14:30.1(A)(2). That is what Lang-
ley’s defense attorneys asked the jury to do. And it is what the jury did. So
Langley, like Ashe, is entitled to constitutional protection: “Once a jury had
determined upon conflicting testimony that there was at least a reasonable
doubt that [Langley had the requisite specific intent], the State could not pre-
sent the same or different . . . evidence in a second prosecution . . . in the hope




       31 See, e.g., Oral Arg. at 22:49–23:50 (confirming that the State does not contend that
this case falls within the Powell exception to Ashe).
       32 As noted earlier, the jury was instructed that neither second degree kidnapping nor

cruelty to juveniles has as an essential element specific intent to kill or to inflict great bodily
harm. See supra notes 6 & 7.
                                               30
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                                       No. 16-30486
that a different [factfinder] might find that evidence more convincing.” Ashe,
397 U.S. at 446.
       Because the magistrate judge failed to apply the rule of decision man-
dated by Ashe, and instead applied a novel interpretation of the Double Jeop-
ardy Clause that contradicts Supreme Court holdings, the magistrate judge’s
opinion, adopted in full by the district court, was “contrary to” clearly estab-
lished Supreme Court precedent. See Bell, 535 U.S. at 694. The opinion thus
cannot supply a reasonable basis for “the state court’s result.” Richter, 562 U.S.
at 102.
                                              2
       Even accepting the magistrate judge’s erroneous view that an acquittal
is undeserving of double jeopardy effect unless supported by affirmative evi-
dence, that standard is still met here. The magistrate judge concluded other-
wise only because it unreasonably refused to consider the evidence of Langley’s
mental illness—thereby ignoring Langley’s entire case-in-chief, which the jury
was within its rights to credit.
       The magistrate judge began from the premise that Langley’s trial coun-
sel based their arguments regarding specific intent and insanity on the same
factual contention: that Langley was suffering from severe mental illness at
the time he killed J.G. 33 See Langley VI, 2015 WL 10635328 at *8. The magis-
trate judge then reasoned that, because the jury rejected Langley’s insanity
defense, it must also have rejected the defense’s theory that mental illness pre-
vented Langley from forming the requisite intent. See id.




       33Evidence of Langley’s mental illness rationally can bear on both his insanity defense
and the element of mens rea. See Clark v. Arizona, 548 U.S. 735, 767–68 (2006). Langley’s
defense counsel argued as much at the 2003 trial, and the jury was not instructed otherwise.
See supra Part I–B.
                                             31
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                                  No. 16-30486
      But this reasoning suffers from at least two independent errors of logic.
For one, it erroneously conflates the standards for specific intent and insanity.
Per the jury instructions, Langley had the requisite specific intent if he “ac-
tively desired the prescribed criminal consequences to follow his act or failure
to act.” By contrast, the instructions deemed him “insane” if “because of his
mental disease or mental defect [he] was incapable of distinguishing between
right and wrong with respect to the conduct in question.” These standards are
distinct. It would not have been irrational for the jury to find that Langley’s
mental illness was of a kind that, for example, left him not in control of his
actions but still preserved his sense of right and wrong. In such a case, Langley
would have been unable to stop himself from killing J.G. despite not actively
desiring it (i.e., despite having no specific intent), and despite knowing that it
was wrong (i.e., despite not being insane). The magistrate judge was wrong to
consider such a finding logically impossible.
      The magistrate judge’s reasoning also overlooks that specific intent and
insanity are subject to different standards of proof. Per the jury instructions,
the State had to prove specific intent beyond a reasonable doubt, but Langley
merely had to prove insanity by a preponderance of the evidence. Thus, for
example, there would be nothing inconsistent about a jury (1) finding by a pre-
ponderance of the evidence that Langley’s mental illness impaired neither his
ability to form specific intent nor his ability to distinguish right from wrong
(leading the jury to reject the insanity defense); and (2) simultaneously failing
to make the same finding beyond a reasonable doubt (leading the jury to acquit
for insufficient evidence of intent). This error is “well understood and compre-
hended in existing law beyond any possibility for fair-minded disagreement.”
Richter, 562 U.S. at 108; see, e.g., Dowling v. United States, 493 U.S. 342, 348–
49 (1990) (explaining in the course of an Ashe analysis that “a jury might rea-
sonably conclude [by a preponderance of the evidence] that Dowling was the
                                       32
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                                       No. 16-30486
masked man who entered Henry’s home, even if it did not believe [the same
fact] beyond a reasonable doubt”). So not only did the magistrate judge apply
a test that was “contrary to” Ashe, it applied that test in an unreasonable man-
ner, as well. See 28 U.S.C. § 2254(d)(1). For this reason, too, the magistrate
judge’s opinion is not a barrier to Langley’s habeas relief.
                                               C
       The State puts forward additional arguments it says “could have sup-
ported the state court’s decision.” Richter, 562 U.S. at 102. Some of these argu-
ments merely reiterate the state court and magistrate judge opinions, and to
that extent need not be re-examined here. 34 But the State also offers its own,
new justifications that, if reasonably correct, would foreclose relief. See supra
p. 14. None of the State’s arguments meets that standard.
                                               1
       The State’s first argument addresses the jurors’ subjective mindsets. The
State cites the 2003 trial judge’s description of his post-trial, off-record, ex parte
communications with the jurors, some of whom apparently told him “that the
death penalty would be inappropriate.” This evidence, the State suggests, “cor-
roborate[s]” its theory that the jurors acquitted Langley not because the State
failed to carry its burden of proof with respect to specific intent, but rather
because the jury “did not want to impose the death penalty.” Appellee Br. at
11–12.




       34 For example, the State asserts in conclusory fashion that “the jury [rationally] could
have found the petitioner guilty of specific intent second degree murder, which would have
been consistent with the jury instructions,” Appellee Br. at 13; and that “due to the over-
whelming evidence against the petitioner, it is impossible and unthinkable that a rational
jury would not have found specific intent,” id. at 11. These contentions are addressed respec-
tively in Parts IV–A–1 and IV–B above.
                                              33
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                                       No. 16-30486
       Whatever the accuracy of the State’s proposed factual inference, 35 it can-
not defeat an Ashe claim because it has nothing to do with Ashe. As already
explained, Ashe clearly establishes that the inquiry is objective. The question
is not why these jurors returned the verdict that they did, but rather “whether
a rational jury could have grounded its verdict upon an issue other than” that
of Langley’s specific intent. 397 U.S. at 444–45; accord, e.g., Yeager, 557 U.S.
at 122 & n.6; Powell, 469 U.S. at 66–67. So any post-trial statements from these
jurors regarding their own subjective decisionmaking are beside the point. Cf.
Yeager, 557 U.S. at 121 (“[A] jury speaks only through its verdict.”). If a court
were to accept the State’s invitation to consider these jurors’ subjective moti-
vations instead of undertaking the rational-jury inquiry mandated by Ashe,
that court would be “appl[ying] a rule different from the governing law set forth
in [the Ashe line of] cases.” Bell, 535 U.S. at 694.
                                              2
       The State next emphasizes “that the jury in the [2003] trial was in-
structed that second degree murder could be with or without specific intent.”
Appellee Br. at 12. Reading this argument charitably, we take the State to be
referring to a misstatement the judge made during the oral jury instructions.
In defining specific-intent second degree murder under La. R.S. 14:30.1(A)(1),


       35 The jurors’ hearsay comments may not be as conclusive as the State asserts. After
all, the death penalty would equally be “inappropriate” if the State had failed to prove the
elements of first degree murder, the only capital crime at issue. The judge’s statements, more-
over, are similarly equivocal. By the judge’s own account, he “never questioned the jury” or
“ask[ed] them why they came back with second [degree murder].” Rather, he “assum[ed]”
that “since everybody had almost agreed that the death penalty would be inappropriate in
this case[,] they just avoided the sentencing hearing and did what they did.” He then added:
                Now, they may have done that because they felt that two or three
                more days of testimony would be burdensome on them, or [be-
                cause they] thought that why hear any more, we’ve heard
                enough in this case. I don’t know, I’m not gonna second guess
                them. I didn’t probe into it . . . . (emphasis added).
Of course, the ultimate factual resolution of why this jury acted the way it did is immaterial,
as explained above.
                                             34
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                                       No. 16-30486
the judge said the crime could be committed “with or without specific intent to
kill or inflict great bodily harm” (emphasis added), effectively deleting the
mens rea requirement. 36 If the jury caught the judge’s slip and took the instruc-
tions literally, it would have been required to find Langley guilty of second
degree murder based solely on the concession that Langley caused J.G.’s
death. 37
       Even so, we fail to see how the judge’s instructional error could reasona-
bly be held to affect whether the jury’s verdict “necessarily determined” the
specific-intent issue. That Ashe analysis turns on the jury’s failure to convict
Langley of first degree murder—a crime the instructions consistently defined
as requiring proof of specific intent. Because Langley’s specific intent was the
only disputed issue relevant to first degree murder under La. R.S. 14:30(A)(5),
and because the jury failed to convict Langley of that crime, the only reasona-
ble conclusion is that the issue of specific intent was “necessarily determined.”
See supra Part III–B. The erroneous instruction for specific-intent second de-
gree murder just does not enter the picture.


       36 It is not obvious whether the State intends to rely on the instructional error, or
intends simply to rehash the (already-rejected) argument that a rational jury could have con-
victed Langley of specific-intent second degree murder. The State’s argument on this point
reads in full:
                        Additionally, it is important to remember that the jury in
                the second trial was instructed that second degree murder could
                be with or without specific intent. Thus, based on the instruc-
                tions received, the jury could have found the petitioner guilty of
                second degree murder with specific intent. The petitioner cannot
                claim that the issue was “necessarily decided” in his favor, when
                the presence of specific intent was included in both instructions.
Appellee Br. at 12.
       37 The judge’s error came to light during jury deliberations when the jurors requested

a written list of elements for each possible responsive verdict. The parties quickly consented
to a written, corrected instruction, which was then delivered to the jury. Because we conclude
below that the erroneous instruction would be immaterial to Langley’s Ashe claim even if it
had never been corrected, we need not consider Langley’s assertion, made at oral argument,
that the Supreme Court’s Ashe holdings clearly establish that the correction obviated the
original error’s effect.
                                             35
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                                  No. 16-30486
                                        3
      The State next accuses Langley of an unduly “rigid reading of the law.”
Appellee Br. at 13–14. Granting him relief, the State says, would contravene
the admonition in Ashe that:
            [The Ashe doctrine] is not to be applied with the hyper-
            technical and archaic approach of a 19th century
            pleading book, but with realism and rationality. . . .
            The inquiry “must be set in a practical frame and
            viewed with an eye to all the circumstances of the pro-
            ceedings.” Any test more technically restrictive would,
            of course, simply amount to a rejection of the rule of
            [issue preclusion] in criminal proceedings . . . .
397 U.S. at 444 (quoting Sealfon v. United States, 332 U.S. 575, 579 (1948)).
      It is difficult to know what the State understands this passage in Ashe
to mean. By its own terms, the passage operates only to make issue preclusion
more available—as opposed to “more technically restrictive.” It reminds courts
not to reject Ashe claims for overly technical reasons. See also Sealfon, 332 U.S.
at 579 (finding issue preclusion notwithstanding the government’s cramped
reading of what was technically before the jury). In any event, our disposition
of Langley’s appeal never relies on the above-quoted language from Ashe, and
never rejects potential arguments supporting the state court’s decision on the
grounds that those arguments are too “technical” or “unrealistic.”
      To the extent the State means to argue that this passage somehow pre-
cludes us from applying basic rules of logic in assessing Langley’s Ashe claim,
that argument is untenable. See, e.g., Turner, 407 U.S. at 369 (using “logical”
inferences to determine “what issues a general verdict of acquittal at the mur-
der trial resolved”). Even in § 2254(d) cases, our Ashe analysis “must stay
within the bounds of a rational[] inquiry.” Garcia, 388 F.3d at 504.




                                       36
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                                       No. 16-30486
                                              4
       The State further asserts that Langley has no double jeopardy rights
stemming from his 2003 trial because, according to the State, that trial “was
declared a structural nullity.” Appellee Br. at 14. True, the Louisiana Third
Circuit Court of Appeal stated in Langley III that the procedural errors in the
2003 trial rendered the verdict “an absolute nullity,” and on that basis opined
that the State could re-prosecute Langley even for first degree capital murder.
See 896 So. 2d at 210–12. But that holding was objectively inconsistent with
clearly established federal law, see, e.g., Fong Foo, 369 U.S. at 143; Green, 355
U.S. at 189–90, and it was in any event overruled by the Louisiana Supreme
Court, see Langley IV, 958 So. 2d at 1170. Nothing in Langley III provides a
reasonable basis for rejecting Langley’s Ashe claim.
       Relatedly, the State observes that “[t]he Louisiana Supreme Court held
[in Langley IV] that double jeopardy barred [Langley’s] retrial for first degree
murder, not second degree murder, and based its decision on federal constitu-
tional law.” Appellee Br. at 14. That sentence is true in part. As explained
above, after the 2003 trial, the State attempted to re-prosecute Langley for first
degree murder. See supra Part I–C. The Louisiana Supreme Court held that it
could not, on the ground that Langley had already been acquitted of that crime.
See Langley IV, 958 So. 2d at 1169–70 (applying state law and arguably federal
law as well). The Louisiana Supreme Court also stated that its holding did not
prevent the State from re-prosecuting Langley for second degree murder as a
general matter. See id. at 1170–71. 38 But the Louisiana Supreme Court did not
consider the separate question whether, under the Double Jeopardy Clause’s



       38 To be clear, the same is true of our opinion: Nothing we say today prevents the State
from re-prosecuting Langley for second degree murder under La. R.S. 14:30.1—or for any
other crime—on a theory that does not have as an essential element proof of Langley’s specific
intent to kill or harm.
                                              37
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                                       No. 16-30486
issue preclusion component as defined in Ashe, the 2003 verdict necessarily
determined that Langley lacked specific intent to kill or inflict great bodily
harm. Indeed, Langley did not raise that argument until his present-day coun-
sel began to represent him on remand from Langley IV. 39
       We therefore fail to see the relevance of Langley IV to the present case.
The Louisiana Supreme Court’s silence with respect to a federal constitutional
claim not raised by the parties before it says nothing about whether the Loui-
siana Third Circuit Court of Appeal reasonably rejected that claim on the mer-
its four years later in Langley V. This observation by the State has no bearing
on Langley’s habeas petition.
                                               5
       At oral argument, the State relied primarily on a new argument not de-
veloped in its brief. See Oral Arg. at 18:38–21:58, 24:58–28:05, 34:01–34:26.
According to the State, because Langley’s counsel at the 2003 trial “never con-
ceded second degree kidnapping,” id. at 19:09–19:11, “there was still a valid
first degree murder charge” using the second-degree-kidnapping aggravator in
La. R.S. 14:30(A)(1), id. at 20:51–20:58. Thus, the State’s argument seems to
go, the jury rationally could have acquitted Langley of first degree murder
based on a failure to prove second degree kidnapping, rather than a failure to
prove specific intent.




       39 We note again that the Louisiana Third Circuit Court of Appeal explicitly addressed
Langley’s Ashe claim on the merits. See Langley V, 61 So. 3d at 757–58. For that reason, the
State was correct to acknowledge in district court that “[t]he doctrine of procedural default is
not a bar to federal habeas review of this case.” See also Ylst v. Nunnemaker, 501 U.S. 797,
801 (1991) (“If the last state court to be presented with a particular federal claim reaches the
merits, it removes any bar to federal-court review that might otherwise have been availa-
ble.”); Langley VI, 2015 WL 10635328, at *7 (“In addressing the merits of the claim now re-
newed in his federal habeas petition, the Louisiana Third Circuit Court of Appeal noted no
procedural defects and denied the claim on the merits. Therefore we find no grounds for pro-
cedural default.”).
                                              38
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                                  No. 16-30486
      This argument fails as a matter of logic. It is of course true that if the
State failed to convince the jury that Langley was committing or attempting
second degree kidnapping, the jury was obligated to reject the prosecution’s
first-degree-murder theory under La. R.S. 14:30(A)(1). But as described above,
the State proceeded on two alternative first-degree-murder theories: either that
Langley was committing or attempting second degree kidnapping, see La. R.S.
14:30(A)(1); or that J.G. was under twelve years old, see id. 14:30(A)(5). Proof
of either theory would have necessitated a first-degree-murder conviction. Be-
cause the jury did not convict Langley of first degree murder, it rationally must
have rejected both theories. And the “single rationally conceivable issue in dis-
pute” with respect to the theory based on La. R.S. 14:30(A)(5) was whether the
State proved beyond a reasonable doubt that Langley acted with specific intent
to kill or to inflict great bodily harm. Ashe, 397 U.S. at 445; see supra Part III–
B. So the issue of Langley’s specific intent was “necessarily decided,” the
State’s arguments notwithstanding.
                                        D
      Finally, having rejected the arguments put forth by the state court, the
magistrate judge, and the State’s attorneys, we come to the question whether
we ourselves can “imagine any possible reasonable analysis [under Ashe] that
could support the state appeals court’s decision.” Evans, 875 F.3d at 217 n.4
(quoting Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012)).
      It is not our usual practice to craft arguments for the parties or to conjure
legal theories no litigant or jurist has raised. See, e.g., Greenlaw v. United
States, 554 U.S. 237, 243 (2008) (explaining that “our adversary system . . .
rel[ies] on the parties to frame the issues for decision and assign[s] to courts
the role of neutral arbiter of matters the parties present”); Day v. McDonough,




                                        39
    Case: 16-30486       Document: 00514472153          Page: 40     Date Filed: 05/14/2018



                                       No. 16-30486
547 U.S. 198, 210 (2006) (confirming that federal habeas courts “surely have
no obligation to assist attorneys representing the State”). 40
       Nevertheless, we take this opportunity to report that our own independ-
ent analysis of this tragic case, several times reversibly mishandled by state
judges, see generally supra Part I, has revealed no reasonable application of
the Ashe doctrine the state court could have used to reject Langley’s claim. We
can only conclude that Langley has demonstrated that his case satisfies the
criteria set forth in § 2254(d)(1), allowing the writ to issue. “Although we do
not relish adding a new chapter to this [terribly] unfortunate story,” the federal
habeas statute and the Double Jeopardy Clause “afford[] [Langley] a right to
relief.” Reed v. Quarterman, 555 F.3d 364, 382 (5th Cir. 2009).
                                              V
       The State of Louisiana is constitutionally prohibited from charging
Langley with any crime having as an essential element proof beyond a reason-
able doubt of Langley’s specific intent to kill or to inflict great bodily harm at
the moment he killed J.G. Nothing we say today prevents the State from charg-
ing Langley with crimes that do not have such proof as an essential element.
Langley’s 2009 conviction for specific-intent second degree murder under La.
R.S. 14:30.1(A)(1), however, cannot stand.
       The district court’s judgment is REVERSED, and this case is RE-
MANDED with instructions to grant Langley’s petition for a writ of habeas
corpus and to take any further appropriate action.




       40 We also note that not a single current member of the United States Supreme Court
considers this step a necessary component of the § 2254(d)(1) inquiry, to the extent this step
is permissible in the present circumstances at all. Compare Wilson, 138 S. Ct. at 1191–92
(requiring federal habeas courts reviewing a state court opinion to “simply review[] the spe-
cific reasons given by the state court”), with id. at 1199 (Gorsuch, J., dissenting) (agreeing
that “a federal court generally isn’t required to imagine or hypothesize arguments that nei-
ther the parties before it nor any lower court has presented” (emphasis omitted)).
                                             40
