                                In the

     United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
No. 14-2809
DEMETRIUS M. BOYD,
                                                 Petitioner-Appellant,

                                  v.

GARY A. BOUGHTON,
                                                Respondent-Appellee.
                      ____________________

         Appeal from the United States District Court for the
                    Eastern District of Wisconsin.
       No. 12 C 388 — William E. Callahan, Jr., Magistrate Judge.
                      ____________________

     ARGUED APRIL 22, 2015 — DECIDED AUGUST 14, 2015
                 ____________________

   Before POSNER and KANNE, Circuit Judges, and DARRAH,
District Judge.
    KANNE, Circuit Judge. Appellant Demetrius M. Boyd has
filed a petition for a writ of habeas corpus. He claims that he
is being detained in violation of federal law—specifically, the

 The Honorable John W. Darrah, of the United States District Court for
the Northern District of Illinois, sitting by designation.
2                                                   No. 14-2809

Double Jeopardy Clause of the Fifth Amendment. The dis-
trict court denied Boyd’s petition, and he appeals pursuant
to a certificate of appealability. For the reasons below, we af-
firm the district court’s denial of the petition.
                         I. BACKGROUND
    Boyd was arrested on criminal charges and released from
jail pursuant to a bond agreement. Boyd was subject to a
number of bond conditions, including that he not engage in
any criminal activity. While on release, however, Boyd was
arrested and charged in Wisconsin state court with ten
counts, including three counts of armed robbery with the
threat of force; being a felon in possession of a firearm; pos-
sessing a short-barreled shotgun; taking a vehicle without
the owner’s consent by the use of a dangerous weapon; bat-
tery; unlawfully and intentionally pointing a firearm at an-
other person; operating a vehicle without the owner’s con-
sent; and resisting or obstructing a law enforcement officer.
   Pursuant to Wisconsin Statute § 946.49, which makes
“bail jumping” a felony offense, the state charged Boyd in
the same proceeding with ten counts of bail jumping: it
charged one bail-jumping count for each of the underlying
substantive offenses that Boyd allegedly committed while on
bond. A jury convicted Boyd on all twenty counts, and he
was sentenced to over forty years’ imprisonment.
   Boyd appealed. Among other arguments, he contended
that he was being punished for both bail jumping and the
substantive offenses in violation of the Double Jeopardy
Clause of the Fifth Amendment. The Wisconsin Court of
Appeals rejected his double-jeopardy argument and af-
No. 14-2809                                                    3

firmed his convictions. Boyd then appealed to the Supreme
Court of Wisconsin, which denied his petition for review.
    Having exhausted his state remedies, Boyd filed a peti-
tion for a writ of habeas corpus in the Eastern District of
Wisconsin. Among other claims, he raised the same double-
jeopardy argument that he had pursued in state court. The
district court denied his petition but granted a certificate of
appealability on the double-jeopardy issue.
   Boyd appeals the denial of his writ of habeas corpus.
                           II. ANALYSIS
    In short, Boyd argues that his bail-jumping and underly-
ing offenses constituted the “same offense” under the Dou-
ble Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution. He argues that, as a result, he may not be law-
fully punished for both. He claims that the state court’s op-
posite conclusion constituted a decision contrary to clearly
established federal law, rendering him eligible for habeas
relief.
   A. Standard of Review
    Our review of Boyd’s claim is governed by the Antiter-
rorism and Effective Death Penalty Act (“AEDPA”). In order
to obtain relief, Boyd must show that “he is in custody in vi-
olation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1,
16 (2010) (per curiam). And he must show that his detention
was the result of a state court decision that was (1) “contrary
to, or involv[ing] an unreasonable application of, clearly es-
tablished Federal law, as determined by the Supreme Court
of the United States;” or (2) “based on an unreasonable de-
4                                                    No. 14-2809

termination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d).
    Boyd invokes here the first of those requirements—that
his detention is the result of a state court decision that is con-
trary to clearly established federal law. The relevant state
court decision is that of the last state court to address the
claim on the merits. McFowler v. Jaimet, 349 F.3d 436, 446 (7th
Cir. 2003).
    A state court decision is contrary to Supreme Court prec-
edent “if the state court arrives at a conclusion opposite to
that reached by [the] Court on a question of law,” or “if the
state court confronts facts that are materially indistinguisha-
ble from a relevant Supreme Court precedent and arrives at
[an opposite result].” Williams v. Taylor, 529 U.S. 362, 405
(2000) (citing Green v. French, 143 F.3d 865, 869–70 (4th Cir.
1998)). A decision applying the correct legal rule to the facts
of a case is not “contrary to” within the meaning of
§ 2254(d)(1). Williams, 529 U.S. at 406. Additionally, a state
court decision is not unreasonable simply because the court
applied federal law incorrectly. Id. at 410 (“For purposes of
today's opinion, the most important point is that an unrea-
sonable application of federal law is different from an incor-
rect application of federal law.”).
    We review the district court’s findings of fact for clear er-
ror and its legal conclusions de novo. Rizzo v. Smith, 528 F.3d
501, 505 (7th Cir. 2008).
    B. The Supreme Court’s Double-Jeopardy Jurisprudence
   Boyd’s claim rests on the Supreme Court’s double-
jeopardy jurisprudence, which he says the Wisconsin state
court misapplied. So we begin by discussing at some length
No. 14-2809                                                                5

the twists and turns of the Supreme Court’s interpretation
and application of the Double Jeopardy Clause.
    1. Double Jeopardy Basics
    The Double Jeopardy Clause provides that no person
shall “be subject for the same offence to be twice put in jeop-
ardy of life or limb.” U.S. Const. amend. V. While this provi-
sion may appear straightforward, its meaning and applica-
tion have long been the subjects of debate and changing le-
gal standards. Commentators have called the Supreme
Court’s double-jeopardy jurisprudence (among other unflat-
tering descriptions) full of “double talk” and “double
takes,”1 lacking a “cogent analysis,”2 and “just about as far
removed from a model of logical and conceptual clarity as it
is possible to be.”3 Without endorsing any of those descrip-
tions, we must admit that the Court’s jurisprudence is com-
plicated and often unclear. Indeed, as we discuss later, that is
one of the reasons why Boyd’s claims fail.
   As the Supreme Court has interpreted it, the Double
Jeopardy Clause envisions three ways in which a defendant
may be “twice put in jeopardy of life or limb”: (1) a subse-
quent prosecution after an acquittal; (2) a subsequent prose-
cution after a conviction; and (3) being twice punished for

1 Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L. J. 1807,
1807-08 (1997).
2 Peter Henning, Precedents in a Vacuum: The Supreme Court Continues to
Tinker with Double Jeopardy, 31 Am. Crim. L. Rev. 1, 3 (1993).
3 Ronald J. Allen, Bard Ferrall & John Ratnaswamy, The Double Jeopardy
Clause, Constitutional Interpretation and the Limits of Formal Logic, 26 Val.
U. L. Rev., 281, 281-82 (1991).
6                                                   No. 14-2809

the same offense. North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The type of jeopardy at issue in this case is the third,
which we will refer to as the “multiple-punishment” line of
cases.
    2. The Blockburger Test
    Our starting point is Blockburger v. United States, 284 U.S.
299 (1932). In that case, Harry Blockburger was convicted of
multiple counts of violating a federal narcotics statute.
Among other charges, he was convicted of selling “ten
grains” of a narcotic drug to a specific purchaser (Count 2),
and then selling “eight grains” of the same drug to the same
purchaser on a different day (Count 3). Blockburger claimed
that the conduct underlying Count 3 was merely a continua-
tion of the conduct in Count 2—this was one single drug
deal. He argued, therefore, that those counts were actually
the same offense, for which he could not lawfully be punished
twice.
    To determine the application of the Double Jeopardy
Clause, the Court had to decide when two criminal charges
actually constituted the “same offense.” It laid out what
came to be known as the “same-elements” or Blockburger
test. That test asks whether each offense requires an element
that is not required by the other: if not, then the two are the
“same offense.” See Blockburger, 284 U.S. at 304 (“[W]here the
same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each
provision requires proof of a fact of which the other does
not.”). Put differently, if Statute 1 requires an element that
Statute 2 does not; and Statute 2 requires an element that
Statute 1 does not, then the statutes constitute different of-
No. 14-2809                                                             7

fenses. Otherwise, they are the same offense for Blockburger
purposes.
    3. The Short-Lived Grady Test
    In 1990, the Supreme Court revisited the Blockburger test
in Grady v. Corbin, 495 U.S. 508 (1990). In that case, the Court
held that in the context of successive prosecutions, the Double
Jeopardy Clause required one further layer of analysis. The
Court held that a successive prosecution “must do more
than merely survive the Blockburger test.” Grady, 495 U.S. at
521. In addition, “the Double Jeopardy Clause bars any sub-
sequent prosecution in which the government, to establish
an essential element of an offense charged in that prosecu-
tion, will prove conduct that constitutes an offense for which the
defendant has already been prosecuted.” Id. (emphasis add-
ed).
    This was, in effect, a “same conduct” test. Two offenses
could pass the Blockburger test, because each offense con-
tained an element that the other did not, but still fail under
Grady. The Court noted, however, that the Blockburger test
had been developed in the multiple-punishment context, and
it appeared to assume that Blockburger would continue to be
the test applied in such cases.4
    Grady, however, was short-lived. In 1993, just three years
after it decided that case, the Supreme Court abandoned
Grady’s same-conduct test for subsequent-prosecution
claims. And it reinstituted Blockburger as the test applicable

4 We concluded the same. See, e.g., United States v. Hartmann, 958 F.2d
774, 792 (7th Cir. 1992) (applying Blockburger analysis to post-Grady mul-
tiple sentencing case).
8                                                  No. 14-2809

to all varieties of double-jeopardy cases. It did so in United
States v. Dixon, a fragmented, plurality opinion. 509 U.S. 688
(1993). We need not detail the Court’s reasoning in jettison-
ing Grady—we describe Grady’s brief existence only to set the
stage for the Court’s opinion in Dixon.
    4. Blockburger Applied to Lesser-Included Offenses: Harris
    and Dixon
   In addition to overturning Grady and reinstituting Block-
burger, the Dixon Court took up another issue: how to apply
Blockburger’s “same elements” test when one of the offenses
looks like a “lesser-included offense” of the other.
    The lesser-included-offense story begins with Harris v.
Oklahoma, 433 U.S. 682 (1977) (per curiam). In that case, de-
fendant Thomas Harris killed a grocery store clerk during
the commission of a robbery. Harris was convicted of felony-
murder, and in a later prosecution was also convicted of the
underlying robbery. Harris appealed his robbery conviction,
arguing that it was barred by the Double Jeopardy Clause.
The Oklahoma Court of Criminal Appeals affirmed his con-
viction, but acknowledged that “[i]n a felony murder case,
the proof of underlying felony [here robbery with firearms]
is needed to prove the intent necessary for a felony murder
conviction.” Harris, 433 U.S. at 682 (citation omitted) (brack-
ets in original).
    The Supreme Court reversed. It determined that “[w]hen,
as here, conviction of a greater crime, murder, cannot be had
without conviction of the lesser crime, robbery with fire-
arms, the Double Jeopardy Clause bars prosecution for the
lesser crime, after conviction of the greater crime.” Id. The
Court concluded that the two crimes failed the “same-
No. 14-2809                                                 9

elements” test, so the Double Jeopardy Clause barred a sub-
sequent prosecution for robbery. Subsequent cases, such as
Whalen, applied the same analysis. Whalen v. United States,
445 U.S. 684 (1980).
    Now enter Dixon, a consolidated case involving two de-
fendants. The first defendant, Alvin Dixon, had been arrest-
ed in the District of Columbia and was released on bond.
Dixon’s bond agreement stated that he was not to commit
“any criminal offense.” Dixon, 509 U.S. at 691. It also stated
that any violation of the conditions of his release would sub-
ject him “to revocation of release, an order of detention, and
prosecution for contempt of court.” Id. While out on bond,
Dixon was arrested and indicted for possession of cocaine
with intent to distribute, in violation of D.C. law.
    Before any proceedings regarding the cocaine indictment,
the D.C. court held a hearing, requiring Dixon to show cause
as to why he should not be held in contempt. The court con-
cluded that the government had “established beyond a rea-
sonable doubt that [Dixon] was in possession of drugs and
that those drugs were possessed with the intent to distrib-
ute.” Id. at 691 (brackets in original).
    The court found him guilty of criminal contempt. Dixon
then moved to dismiss the cocaine indictment on double-
jeopardy grounds, and the court granted his motion. The
District of Columbia Court of Appeals, relying on (then-
controlling) Grady, agreed that Dixon’s subsequent prosecu-
tion was barred by the Double Jeopardy Clause.
    The second defendant, Michael Foster, was subject to a
civil protection order obtained by his estranged wife, Ana.
The order required that he not “molest, assault, or in any
10                                                No. 14-2809

manner threaten or physically abuse” her. Over the next
eight months, Ana filed three motions to have her husband
held in contempt of the order. She alleged, among other
claims, that Foster threatened her on three occasions and
physically assaulted her twice.
    The D.C. court held a three-day bench trial on the con-
tempt issue. In order to prove contempt, the court stated that
Ana would have ”to prove as an element, first that there was
a Civil Protection Order, and then [that] … the assault as de-
fined by the criminal code, in fact occurred.” Id. at 693
(brackets in original). The court found Foster guilty of the
physical assaults but acquitted him on the threat allegations.
    The government later obtained an indictment charging
Foster with, among other counts: threatening to injure an-
other for the three threats (for which he had been acquitted
of contempt); simple assault for one of the physical assaults
(for which he had been found guilty of contempt); and as-
sault with intent to kill for the other physical assault (for
which he had been found guilty of contempt). Foster filed a
motion to dismiss, based on double jeopardy, and the trial
court denied his motion. Foster appealed, and as in Dixon’s
case, the District of Columbia Court of Appeals held that
Foster’s subsequent prosecutions were barred by the Double
Jeopardy Clause. The cases were consolidated and appealed
to the Supreme Court.
    The question before the Supreme Court was whether the
subsequent prosecutions of Dixon and Foster violated the
Double Jeopardy Clause. After overturning Grady, the major-
ity of the Court applied Blockburger. The Court divided,
however, as to how Blockburger would apply to those subse-
quent prosecutions. Seven of the justices looked to the
No. 14-2809                                                    11

Court’s “lesser-included-offense” jurisprudence as the most
pertinent authority. But the fractured court then veered in
multiple directions.
    Justice Scalia, joined by Justice Kennedy, concluded that a
subsequent prosecution of Dixon would violate the Double
Jeopardy Clause. He concluded that the drug charge consti-
tuted a sort of lesser-included-offense to the contempt crime:
      [T]he ‘crime’ of violating a condition of release can-
      not be abstracted from the ‘element’ of the violated
      condition. The Dixon court order incorporated the
      entire governing criminal code in the same manner
      as the Harris felony-murder statute incorporated
      the several enumerated felonies. Here, as in Harris,
      the underlying substantive criminal offense is ‘a
      species of lesser-included offense.’”
Id. at 698 (citations omitted). He also concluded that Foster
could not be subsequently prosecuted for simple assault be-
cause the civil protection order required him not to “assault”
his wife. Id. at 700. This amounted to simple assault being a
lesser-included offense of contempt.
    But, Justice Scalia concluded, Foster’s other charges did
not constitute lesser-included offenses of Foster’s contempt
conviction. Id. at 700. In short, they passed the Blockburger
test: each substantive offense had an element that the protec-
tion order did not, and the protection order had an element
that each substantive offense did not. As for assault with in-
tent to kill, it required proof of the specific intent to kill,
which the protection order did not; and the protection order
required that Foster have knowledge of the protection order,
which assault with the intent to kill did not. Id. at 701–02.
The same was true of the threat charges. Id.
12                                                No. 14-2809

    Justice White, joined by Justice Stevens in relevant part,
also concluded that the lesser-included-offense analysis
barred Dixon’s subsequent prosecution and Foster’s subse-
quent prosecution for simple assault. Id. at 733 (White, J.,
concurring in the judgment in part and dissenting in part).
Unlike Justice Scalia, however, Justice White concluded that
the Double Jeopardy Clause barred all of the charges
brought against Foster, based on an application of the Block-
burger same-elements test. Id. Justice White faulted Justice
Scalia for an overly formalistic focus approach to applying
Blockburger, concluding that “[t]he distinction drawn by Jus-
tice SCALIA is predicated on a reading of the Double Jeop-
ardy Clause that is abstracted from the purposes the consti-
tutional provision is designed to promote.” Id. at 735.
    Chief Justice Rehnquist, joined by Justices O’Connor and
Thomas, concluded that none of the criminal prosecutions
against Dixon or Foster were barred under Blockburger. Id. at
713 (Rehnquist, C.J., concurring in part and dissenting in
part). The Chief Justice rejected Scalia’s reading of Harris,
that the elements of a lesser-included offense are “incorpo-
rated” into the greater offense, for purposes of double-
jeopardy analysis. Instead, he concluded, one most look only
at the crime of contempt and the elements it explicitly lists.
Contempt of court, he stated, comprises two elements: “(i) a
court order made known to the defendant, followed by (ii)
willful violation of that order.” Id. at 716. On its face, the
crime of contempt has different elements than the substan-
tive criminal charges at issue. Therefore, he concluded, the
statutes all passed the Blockburger test. Id. at 713.
   Justice Blackmun concluded that the interests served by
the contempt mechanism “are fundamentally different from
No. 14-2809                                                 13

those served by the prosecutions of violations of the substan-
tive criminal law.” Id. at 743 (Blackmun, J., concurring in the
judgment in part and dissenting in part). He stated that the
purpose of contempt was not to punish any offense against
the community, but instead to punish the specific act of dis-
obeying a court order. Id. at 742. Because of those fundamen-
tally different purposes, he concluded that neither Foster nor
Dixon had been “subject for the same offence to be twice put
in jeopardy of life or limb.” Id. at 743.
    And finally, Justice Souter concluded that the Double
Jeopardy Clause barred subsequent prosecutions against
both Dixon and Foster on all counts. Id. at 744 (Souter, J.,
concurring in the judgment in part and dissenting in part).
His analysis, however, focused on his stance that Grady
should remain in force, and that Harris should be interpreted
in light of Grady.
    Harris and Dixon illustrate how the Supreme Court ana-
lyzes double-jeopardy claims when faced with lesser-
included offenses. Although they were both multiple-
prosecution cases, it is a fair inference that the Court would
employ the same analysis in a multiple-punishment case like
this one, for the same Blockburger test applies in both con-
texts.
   5. The Two-Part Test for Multiple Punishments in the Same
   Proceeding
   But, at least in the multiple-punishment context, the
Blockburger test is not the end of the story. When the gov-
ernment seeks to impose cumulative punishments in the same
proceeding, the Court has concluded that statutes can fail the
Blockburger test and still not run afoul of the Double Jeop-
14                                                            No. 14-2809

ardy Clause.5 According to the Supreme Court, “simply be-
cause two criminal statutes may be construed to proscribe
the same conduct under the Blockburger test does not mean
that the Double Jeopardy Clause precludes the imposition,
in a single trial, of cumulative punishments pursuant to
those statutes.” Missouri v. Hunter, 459 U.S. 359, 368 (1983).
    Instead, the Court concluded that when multiple pun-
ishments are imposed in a single proceeding, “the Double
Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature
intended.” Id. at 366 (emphasis added). So, in such cases, the
Blockburger test is effectively a “rule of statutory construc-
tion.” See Whalen, 445 U.S. at 691. A court must assume that
the legislature “ordinarily does not intend to punish the
same offense under two different statutes. Accordingly,
where two statutory provisions proscribe the ‘same offense,’

5 Most multiple-punishment cases arise when charges that might result
in cumulative punishment are brought in the same proceeding. But it is
possible for multiple-punishment scenarios to arise in successive pro-
ceedings. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (where de-
fendant successfully challenged his conviction while serving his prison
term. When he was subsequently retried and convicted of the same of-
fense, the Court held that he must be given “credit” for the time he had
already served. To do otherwise would be to punish him twice for the
same offense.). The Court has made clear that the Double Jeopardy
Clause outright forbids multiple punishments for a single offense only
when those punishments are imposed in successive proceedings. See
Hudson v. United States, 522 U.S. 93, 99 (1997) (citing Hunter, 459 U.S. at
366). So in those cases, the Blockburger test is the beginning and the end
of the analysis: if the Blockburger test indicates that the offenses at issue
are the same, then multiple punishments may not be imposed.
No. 14-2809                                                       15

they are construed not to authorize cumulative punishments
in the absence of a clear indication of contrary legislative in-
tent.” Whalen, 445 U.S. at 691–92. But if the legislature clearly
indicated that it intended cumulative punishment, then the
Double Jeopardy Clause does not prohibit multiple-
punishment. Id.
    Thus, in order to determine whether multiple punish-
ments in a single proceeding violate the Double Jeopardy
Clause, a court must engage in a two-step analysis: first, it
must evaluate the statutes at issue by applying the Block-
burger test. If the statutes pass Blockburger (i.e., if they are dif-
ferent offenses), then there is no double-jeopardy violation.
But if the statutes fail Blockburger, then the court must look to
whether the legislature nevertheless clearly intended for the
statutes to apply simultaneously and impose cumulative
punishment.
    That concludes our discussion of the Supreme Court’s
relevant double-jeopardy jurisprudence. We next evaluate
how the Wisconsin courts have applied that jurisprudence in
the context of “bail jumping” generally and to Boyd’s case
specifically.
   C. Double Jeopardy and Bail Jumping in Wisconsin
   Wisconsin law makes bail jumping, under certain cir-
cumstances, a felony offense. Bail jumping includes more
than a defendant’s failure to appear for a court date; it en-
compasses any acts that constitute noncompliance with the
terms of a defendant’s bond agreement. Wis. Stat. § 946.49
provides that:
16                                                      No. 14-2809

      (1) Whoever, having been released from custody
      under ch. 969, intentionally fails to comply with the
      terms of his or her bond is:
      (a) If the offense with which the person is charged
          is a misdemeanor, guilty of a Class A misde-
          meanor.
      (b) If the offense with which the person is charged
          is a felony, guilty of a Class H felony.
      (2) A witness for whom bail has been required un-
      der s. 969.01(3) is guilty of a Class I felony for fail-
      ure to appear as provided.
We note that the “offense” referenced in subsections (a) and
(b) is the offense for which the defendant was originally ar-
rested and on release—not the violation that is alleged dur-
ing the release period. As we understand it, the commission
of a crime while on release will virtually always constitute a
failure to comply with the terms of a defendant’s bond, be-
cause a standard bond term is that the defendant “shall not
commit any crime.” See, e.g., Wisconsin Court Form (Crimi-
nal) CR-203, Bail/Bond.
    The Court of Appeals of Wisconsin (the state’s intermedi-
ate appellate court) considered a double-jeopardy challenge
to the operation of § 946.49 in State v. Nelson, 432 N.W.2d 115
(Wis. Ct. App. 1988). In that case, defendant Eugene Nelson
had been released on bond, subject to the condition that he
not commit any crimes. He was subsequently arrested and
charged with two counts of sexual assault while on release.
The state, pursuant to § 946.49, added one count of bail
jumping to each of his sexual assault charges and prosecuted
both the bail jumping and the substantive offenses in the
No. 14-2809                                                  17

same proceeding. A jury convicted Nelson on all counts. Id.
at 116–17.
    Nelson challenged his convictions for sexual assault on
double-jeopardy grounds, arguing that he was being twice
punished for the same offense. He argued that the sexual as-
sault charges constituted lesser-included offenses of bail
jumping. To determine whether bail jumping and sexual as-
sault constituted the “same offense,” the court applied a ver-
sion of the Blockburger test, adopting a formulation that had
developed under Wisconsin state law: “the lesser offense
must be statutorily included in the greater offense and con-
tain no element in addition to the elements constituting the
greater offense.” Id. at 118. The court stated, “[i]n simplest
terms, it must be utterly impossible to commit the greater
crime without committing the lesser.” Id.
    To commit bail jumping, the court explained, the defend-
ant must only have (1) been released from custody on bail;
and (2) intentionally failed to comply with the terms of the
bond. Id. And to commit sexual assault, the defendant must
(1) with the use of threat or violence; (2) [have] sexual con-
tact or intercourse with another person; (3) without that per-
son’s consent. Id. By the plain terms of the statutes, the court
concluded, those were two separate offenses. Id.
   Nelson argued that the U.S. Supreme Court’s felony-
murder cases instructed that bail jumping and sexual assault
actually constituted the same offense. In those cases, Nelson
argued, the felony-murder statutes did not explicitly list the
elements of the underlying felony; yet the Supreme Court, in
essence, “incorporated” those elements into the greater, fel-
ony-murder offense. The same, Nelson argued, should be
true in his case.
18                                                   No. 14-2809

    The court rejected this argument. It concluded that the
felony-murder statutes were distinguishable because they
required the commission of an underlying felony. Id. at 119. In
other words, it was “utterly impossible” to commit the
greater crime, felony-murder, without committing the lesser
crime, the accompanying felony. Id. In the case of bail jump-
ing, however, it was possible to violate the bail-jumping
statute by committing any act that violated the terms of the
bond agreement—whether or not that act was criminal. Id.
Therefore, the court concluded, there was no double-
jeopardy violation.
    The Supreme Court of Wisconsin then addressed the is-
sue in State ex rel. Jacobus v. State, 559 N.W.2d 900 (Wis. 1997).
In that case, the court adopted the court of appeals’ conclu-
sion in Nelson that bail jumping and the conduct underlying
it are “distinct and separate offenses.” Jacobus, 559 N.W.2d at
905. And it explored the legislative intent underlying
§ 946.49.
    In Jacobus, defendant Alexander Jacobus had been re-
leased on bond, subject to a condition that he not consume
any alcohol. He was then charged with disorderly conduct
and operating a motor vehicle while intoxicated. In addition
to those charges, the state added several bail-jumping
counts. One of those counts was based solely on Jacobus’s
consumption of alcohol in violation of his no-alcohol bond
condition. Jacobus pled guilty to that count.
   Jacobus later filed a state writ of habeas corpus based on
that “no-alcohol bond violation” conviction. He argued that
Wisconsin law prohibited the state from criminally prosecut-
ing him for the violation of his no-alcohol condition. Wis-
consin Statute § 51.45 provides that “[i]t is the policy of this
No. 14-2809                                                  19

state that alcoholics and intoxicated persons may not be sub-
jected to criminal prosecution because of their consumption
of alcohol beverages but rather should be afforded a contin-
uum of treatment in order that they may lead normal lives as
productive members of society.” Wis. Stat. § 51.45.
    This, Jacobus argued, prohibited the state from criminal-
ly prosecuting him for bail jumping based on the underlying
consumption of alcohol. He argued that doing so would
constitute criminal prosecution for the consumption of alco-
hol. The court of appeals agreed with Jacobus, concluding
that “although the State may prohibit alcohol consumption
as a condition of bail, parole, or probation, the only available
penalty is revocation of the applicable status.” Id. at 902.
    The Supreme Court of Wisconsin reversed, concluding
that a conviction for bail jumping did not constitute pun-
ishment for the underlying act. Instead, it constituted pun-
ishment for the crime of violating a court order. While Jaco-
bus did not raise a double-jeopardy claim, the court looked
to the double-jeopardy context as analogous. In doing so, the
court adopted the court of appeals’ conclusion in Nelson that
bail jumping and its underlying offenses constituted “dis-
tinct and separate offenses.” Id. at 905.
    The court also looked to legislative intent. It turned to
§ 946.49 to ascertain “the purpose of the bail jumping statute,
to determine whether public drunkenness is the gravamen of
the offenses with which Jacobus was charged.” Id. In other
words, did the legislature intend that § 946.49 punish a bail
jumper for his underlying offense or conduct?
   First, the court underscored that bail jumping and any
underlying offense were distinct criminal charges. Second,
20                                                 No. 14-2809

the court concluded that when an individual is charged with
bail jumping, “the focus of the prosecution is on the fact that
the individual has violated a condition of his or her bond.
The focus is not on the underlying act.” Id. at 905. Therefore,
the court concluded, “[t]he State is not prosecuting the indi-
vidual for public drunkenness or the consumption of alco-
hol.” Accordingly, it held that Jacobus could be prosecuted
for bail jumping when the underlying conduct was violation
of a no-alcohol condition.
     D. Boyd’s Double-Jeopardy Claim
   That brings us at last to Boyd’s claim. Boyd argues that
his state court convictions and punishment on the bail-
jumping and substantive charges are “contrary to, or in-
volv[ing] an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d). First, Boyd argues that
the Supreme Court of Wisconsin in Jacobus reached a conclu-
sion opposite to that reached by the Supreme Court on a
question of law. He contends that Supreme Court precedent
compels the conclusion that, under an application of the
Blockburger test, his bail-jumping and substantive charges
were the “same offenses.”
    The problem with Boyd’s argument is that it runs head-
long into Dixon. First, we underscore that the federal law at
issue must be clearly established. The “lesser-included-
offense” analysis in Dixon included five separate opinions,
all reaching different conclusions as to how Blockburger
should apply. Assuming, as the district court did, that Dixon
(a subsequent-prosecution case) applies equally in the mul-
tiple-punishment context, we don’t see any federal law as
being clearly established from that five-way divide.
No. 14-2809                                                             21

    Seven of the Dixon justices applied a lesser-included-
offense analysis to the double-jeopardy issue. Of those, only
four came to the conclusion that any of the subsequent pros-
ecutions failed the Blockburger test. And of those four, the jus-
tices split in half as to which subsequent prosecutions were
barred.
   The court in Jacobus applied an analysis similar to Chief
Justice Rehnquist’s in Dixon, in which he concluded that
none of the subsequent prosecutions were barred. We note
that two other justices joined the Chief in that approach.
Moreover, this approach garnered more votes than any of
the other approaches laid out in the heavily fractured Dixon
opinion. We can hardly conclude that the Supreme Court of
Wisconsin erred in adopting that analysis—let alone that it
contravened clearly established federal law.
    In a footnote in his reply brief, Boyd himself concedes
that Dixon does not create any clearly established federal law
on this issue.6 He argues instead that the law he relies upon
is established not by Dixon but by other Supreme Court ju-
risprudence. His formulation of the clearly established fed-
eral law is “that it violates double jeopardy to punish an in-
dividual twice for the same offense without the legislature’s
express approval.”




6 The district court certainly understood Boyd to be arguing that Dixon
established the relevant federal law. The district court concluded that “to
the extent that Boyd’s habeas petition is predicated on the claim that
Dixon compels that his double jeopardy rights were violated … his peti-
tion will be denied.”
22                                                No. 14-2809

    Boyd may be correct in his general statement of the law.
But that statement alone does not answer the critical ques-
tion—what constitutes the same offense for the purposes of the
Double Jeopardy Clause? The lesser-included-offense issue
was the critical question in Boyd’s case—it was outcome-
determinative, and it is the very issue he appeals here. Dixon
provides the Supreme Court’s last word on it, so Boyd can-
not avoid it. In fact, while attempting to distance himself
from Dixon, Boyd simultaneously asks us to adopt the “in-
corporation” approach laid out in Justice Scalia’s Dixon con-
currence. Boyd’s own request demonstrates that his path to
proving a double-jeopardy violation must pass through Dix-
on.
    Furthermore, even if Boyd were able to show that the
Jacobus court erred in concluding that the two statutes
passed the Blockburger test, his claim would still fail. As we
noted above, there is a second step to the double-jeopardy
analysis. “[S]imply because two criminal statutes may be
construed to proscribe the same conduct under the Block-
burger test does not mean that the Double Jeopardy Clause
precludes the imposition, in a single trial, of cumulative
punishments pursuant to those statutes.” Hunter, 459 U.S. at
368. In such cases, “the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.” Id. at 366
(emphasis added).
   The Supreme Court of Wisconsin concluded in Jacobus
that the legislature intended that the bail jumping statute
punish separate conduct (the act of violating a court order)
from any underlying offense. Boyd has provided no reason
why that conclusion does not apply to the statutes at issue in
No. 14-2809                                              23

his case. And we have no reason to otherwise disturb the
court’s conclusion.
                       III. CONCLUSION
   For the foregoing reasons, we AFFIRM the district court’s
denial of Boyd’s petition for a writ of habeas corpus.
