                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 20a0009n.06

                                          No. 19-1179

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                 FILED
                                                                                Jan 08, 2020
 ROBERT REEVES,                                                             DEBORAH S. HUNT, Clerk
        Petitioner-Appellant,
                                                     ON APPEAL FROM THE UNITED
 v.
                                                     STATES DISTRICT COURT FOR THE
 CATHLEEN STODDARD,                                  EASTERN DISTRICT OF MICHIGAN

        Respondent-Appellee.



BEFORE:         BOGGS, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Petitioner Robert Reeves appeals the district court’s judgment

denying his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Reeves argues that

his convictions for arranging for “child sexually abusive activity,” Mich. Comp. Laws

§ 750.145c(2), and using a computer to communicate with a person for the purposes of that crime,

Mich. Comp. Laws § 750.145d(2)(f), violate the Double Jeopardy Clause of the United States

Constitution.

       For the following reasons, we AFFIRM the judgment of the district court.

                                 FACTUAL BACKGROUND

       In October 2007, Petitioner Robert Reeves pleaded guilty to arranging for child sexually

abusive activity and using a computer to communicate with a person for the purposes of

committing a felony. See Mich. Comp. Laws §§ 750.145c(2), 750.145d(2)(f). In his plea, Reeves

admitted that he “contacted a person [he] believed to be 14 years old to have sex with & used the

computer.” (Plea Form, R. 14-4 at PageID #404.) Specifically, Reeves used the internet to
Case No. 19-1179, Reeves v. Stoddard


communicate with an undercover police officer posing as a fourteen-year-old girl between August

2006 and April 2007. He arranged to meet this girl and, when he arrived for that meeting, he was

arrested. After pleading guilty, Reeves was sentenced to six-and-a-half to twenty years of

imprisonment.

       Reeves then mounted a series of appeals and post-conviction motions, each of which was

denied. See Reeves v. Campbell, 708 F. App’x 230, 232–34 (6th Cir. 2017) (summarizing

procedural history). As relevant here, the Oakland County Circuit Court rejected Reeves’ motion

for post-judgment relief under Michigan Court Rule 6.502, in which he argued in part that his

convictions violated the Double Jeopardy Clause. The court held that his convictions were

constitutional because they “involve two different statutes with different elements.” (Op. Denying

Mot. for Relief, R. 14-6 at PageID #451.) The Michigan Court of Appeals denied Reeves leave to

appeal this decision and the Michigan Supreme Court affirmed that denial.

       Reeves then filed a petition for a writ of habeas corpus in the United States District Court

for the Eastern District of Michigan. The district court found that Reeves had procedurally

defaulted on his double jeopardy claim and that he had not shown cause and prejudice to excuse

that default. It further concluded that his double jeopardy claim “lack[ed] merit because each

offense contains an element that the other does not,” and denied him a certificate of appealability.

(Op. Denying Pet., R. 16 at PageID #802, n.3; id. at #803.)

       This Court granted a certificate of appealability and vacated the district court’s decision as

to Reeves’ double jeopardy claim. We found first that Reeves had procedurally defaulted the claim,

but demonstrated ineffective assistance of counsel, which constituted cause and prejudice to

excuse his procedural default. Campbell, 708 F. App’x at 237–38. We then determined that

Reeves’ case “presents the clearest example of double jeopardy,” applying the test prescribed by



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Blockburger v. United States, 284 U.S. 299 (1932), to find that Reeves’ offenses were the same

because “the lesser offense of arranging for child sexually abusive activity requires no proof

beyond that which is required for the greater offense of using a computer to arrange for child

sexually abusive activity.” 708 F. App’x at 238–40 (citing Blockburger, 284 U.S. at 304; Brown

v. Ohio, 432 U.S. 161, 167–68 (1977)). We concluded that the state court’s decision to the contrary

did not preclude habeas relief because it “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court.” Id. at 240–41 (citing 28

U.S.C. § 2254(d)(1)). Finally, we determined that the Warden had forfeited arguments that the

state legislature had authorized cumulative punishments for Reeves’ conduct and that Reeves was

subjected to multiple punishments for multiple acts. Id. at 241. However, because we believed the

former argument “could be outcome determinative,” we held that “this is the unusual case where

we would exercise our discretion to remand to the district court an argument that was not raised

below in the first instance,” and so returned the case to the district court. Id. at 242 (citing Taft

Broad. Co. v. United States, 929 F.2d 240, 245 (6th Cir. 1991)).

       On remand, the district court determined that the language of Michigan’s statute defining

the offense of using a computer to communicate with a person for the purposes of committing a

crime, Mich. Comp. Laws § 750.145d, “makes clear that it was the intent of the Michigan

Legislature to authorize multiple punishments for the petitioner’s two offenses.” Reeves v.

Stoddard, No. 2:14-cv-10977, 2019 WL 764353 at *3 (E.D. Mich. Feb. 21, 2019). Accordingly, it

held that Reeves’ convictions for both arranging for child sexually abusive activity, Mich. Comp.

Laws § 750.145c(2), and using the computer to commit that crime, Mich. Comp. Laws

§ 750.145d(2)(f), do not constitute double jeopardy. Id. In the alternative, the court held that

Reeves “pleaded guilty to multiple acts which formed the bases for his convictions,” and because



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his convictions penalized multiple acts, they do not violate the Double Jeopardy Clause. See id. at

*5 & n.5.

       Reeves’ timely appeal followed.

                                          DISCUSSION

       We review the district court’s denial of Reeves’ habeas petition de novo. Watkins v.

Kassulke, 90 F.3d 138, 141 (6th Cir. 1996). In this appeal, we adhere to our prior decision that the

state court’s determination of Reeves’ double jeopardy claim was contrary to clearly established

law, and so the deference due to that decision under the Antiterrorism and Effective Death Penalty

Act does not bar habeas relief. See Campbell, 708 F. App’x at 240–41.

   A. Forfeiture

       We previously determined that this was an exceptional case in which we should exercise

our discretion to overlook the Warden’s forfeiture of the arguments that the Michigan legislature

had authorized multiple punishments for Reeves’ conduct and that Reeves had committed multiple

acts, meriting multiple punishments. Id. at 242; see also Taft Broad Co., 929 F.2d at 244–45

(discussing exceptions to forfeiture rule). The district court therefore correctly rejected Reeves’

continued contention that he is entitled to a writ of habeas corpus because the Warden forfeited

these arguments. Stoddard, 2019 WL 764353 at *1–2. We also adhere to our original disposition

of this argument, and so affirm the district court’s judgment as to this issue.

   B. Legislative Authorization

       We turn now to the merits of Reeves’ claim. Reeves argues that his convictions violate the

mandate of the Double Jeopardy Clause that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Fourteenth Amendment makes

this prohibition binding on the states. Benton v. Maryland, 395 U.S. 784, 795 (1969). At bottom,



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the Double Jeopardy Clause provides three basic protections: It “protects against a second

prosecution for the same offense after acquittal. It protects against a second prosecution for the

same offense after conviction. And it protects against multiple punishments for the same offense”

imposed in a single trial. Brown, 432 U.S. at 165 (quoting North Carolina v. Pearce, 395 U.S. 711,

717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 799–800 (1989)).

       We previously held that Reeves’ convictions constitute multiple punishments for the same

offense. Campbell, 708 F. App’x at 240. However, this determination does not end our inquiry. In

Missouri v. Hunter, 459 U.S. 359, 366 (1983), the Supreme Court held that, “[w]ith respect to

cumulative punishments imposed in a single trial, the Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater punishment than the legislature intended.”

Accordingly, a defendant may, in a single trial, receive multiple punishments for the same offense,

so long as “[the] legislature specifically authorizes cumulative punishment under two statutes.” Id.

at 368. The question before this Court, then, is whether the Michigan legislature intended to

authorize cumulative punishments for those convicted of both child sexually abusive activity,

Mich. Comp. Laws § 750.145c(2), and of using a computer to arrange for that activity, Mich.

Comp. Laws § 750.145d(2)(f). If it did, Reeves’ custody was not “in violation of the Constitution

or laws or treaties of the United States,” and he is not entitled to a writ of habeas corpus. 28 U.S.C.

§ 2254(a).

       We must accept the Michigan Supreme Court’s construction of Michigan statutes, and so

we look to that court’s decisions as to whether the legislature intended cumulative punishments

for violations of sections 750.145c(2) and 750.145d(2)(f). Hunter, 459 U.S. at 368. As it happens,

the Michigan Supreme Court has not addressed this question. However, the Michigan Court of

Appeals has done so recently, albeit in an unpublished decision. See People v. Sturza, No. 341366,



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2019 WL 2605758 at *5 (Mich. Ct. App. Jun. 25, 2019) (per curiam). In People v. Sturza, the court

held that the language of section 750.145d “clearly expressed [the Michigan legislature’s] intent

to authorize multiple punishments” for those convicted of a violation under sections 750.145d and

750.145c(2). Id. As in other cases in which we apply state law, “[i]n order to determine how the

state supreme court would rule, we look to the decisions of the state’s intermediate courts unless

we are convinced that the state supreme court would decide the issue differently.” Melson v. Prime

Ins. Syndicate, Inc., 429 F.3d 633, 636 (6th Cir. 2005). We therefore treat the Sturza decision as a

prediction of how the Michigan Supreme Court would interpret section 750.145d, because Reeves

has not convinced us that the Michigan Supreme Court would interpret its language differently.

       Even absent this decision, the language of section 750.145d clearly demonstrates the

Michigan legislature’s intention to authorize cumulative punishment. That statute establishes:

       (3) The court may order that a term of imprisonment imposed under this section be
       served consecutively to any term of imprisonment imposed for conviction of the
       underlying offense.
       (4) This section does not prohibit a person from being charged with, convicted of,
       or punished for any other violation of law committed by that person while violating
       or attempting to violate this section, including the underlying offense.

Mich. Comp. Laws § 750.145d(3)–(4). The statute also explicitly names section 750.145c (and

thus, its subsections) as an underlying offense that one is proscribed from committing with the use

of a computer. Id. § 750.145d(1)(a).

       Michigan case law provides that “[w]hen a statute’s language is unambiguous, ‘the

Legislature must have intended the meaning clearly expressed, and the statute must be enforced as

written.’” Madugula v. Taub, 853 N.W.2d 75, 81 (Mich. 2014) (quoting Malpass v. Dep’t of

Treasury, 833 N.W.2d 272, 278 (Mich. 2013)). The language of section 750.145d unambiguously

expresses the legislature’s intention to authorize cumulative punishments, and we must read it as

written. The legislature twice indicated that an offender may receive a punishment under this

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statute while also receiving a punishment for an underlying offense. As applied to this case, this

language indicates that Reeves may receive a punishment under section 750.145d(2)(f), while also

being punished under section 750.145c(2). Because the legislature has authorized cumulative

punishments for his conduct, Reeves’ convictions do not violate the Double Jeopardy Clause.

       Reeves does not present an alternative reading of the language of section 750.145d, but

instead responds that the Double Jeopardy Clause of the Michigan Constitution “does not allow

the state legislature to authorize multiple convictions for offenses that are the ‘same’ under

Blockburger, even in a single trial.”1 (Pet’r Br. at 19 (citing Mich. Const. art. I, § 15).) He argues

that, because “[t]he state legislature’s powers are at all times ‘limited by the constitution of the

state,’” the Michigan legislature could not violate the Michigan Double Jeopardy Clause and,

evidently, we should presume it did not intend to do so. (Id. at 18–19 (quoting McPherson v.

Blacker, 146 U.S. 1, 25 (1892)) (citing Smiley v. Holm, 285 U.S. 355, 368 (1932)).) He notes that

the Michigan Supreme Court has held that the state double jeopardy provision should be

interpreted “consistently with the federal double jeopardy jurisprudence that then existed” at the

time the Michigan Constitution was ratified in 1963. (Id. at 19 (emphasis omitted) (quoting People

v. Davis, 695 N.W.2d 45, 52 (Mich. 2005)) (citing People v. Smith, 733 N.W.2d 351, 367 (Mich.

2007)).) Because Blockburger had been handed down prior to the ratification of the Michigan

Constitution in 1963, but Hunter was not handed down until twenty years after ratification, Reeves




       1
         We note that we are not permitted to decide state law claims on habeas review. See Pulley
v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a
perceived error of state law.”). However, Reeves’ argument based on the Michigan Constitution is
relevant to his federal claim insofar as federal courts must look to state legislatures’ intent to
authorize cumulative punishments for an offense, and so we consider it only for that purpose.

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says that the Michigan Double Jeopardy Clause does not permit legislative authorization of

multiple punishments for his crime. (Id. at 19–20.)

       This argument is unavailing. Despite its statements suggesting that the Michigan

Constitution should be interpreted consistently with federal case law as it stood in 1963, the

Michigan Supreme Court has adopted Hunter. See Smith, 733 N.W.2d at 364 (citing Hunter, 459

U.S. at 368). Reeves concedes as much. Specifically, immediately after explaining that Michigan’s

double jeopardy provision should “be construed consistently with . . . the interpretation given to

the Fifth Amendment by federal courts at the time of ratification,” the Smith court went on to

explain that, in determining whether there is a double jeopardy violation, courts’ first step should

be “determin[ing] whether the legislature expressed a clear intention that multiple punishments be

imposed.” 733 N.W.2d at 363–64 (citing Hunter, 459 U.S. at 368). This holding suggests that the

Michigan Supreme Court interprets its Double Jeopardy Clause to permit the state legislature to

authorize cumulative punishments, even though Hunter was not handed down until after the

Michigan Constitution was ratified.

       Indeed, the Michigan Supreme Court has explained that, “[w]here multiple punishment is

involved, the Double Jeopardy Clause acts as a restraint on the prosecutor and the Courts, not the

Legislature.” People v. Mitchell, 575 N.W.2d 283, 284 (Mich. 1998). Accordingly, it has

repeatedly affirmed that the legislature has authorized cumulative punishments for other offenses.

E.g., People v. Miller, 869 N.W.2d 204, 211 (Mich. 2015) (finding that Michigan law “expressly

authorizes multiple punishments for certain operating while intoxicated offenses”); Mitchell, 575

N.W.2d at 285 (“[T]he Legislature’s intent in drafting the felony-firearm statute was to provide

for an additional felony charge and sentence whenever a person possessing a firearm committed a

felony other than those four explicitly enumerated in the felony-firearm statute.”).



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       Reeves asks this Court to overlook Michigan courts’ application of Hunter. He argues that

this Court should not interpret section 750.145d to authorize cumulative punishments because

Michigan courts—at the time his briefing was submitted—had not interpreted that provision with

regard to double jeopardy. Instead, he asks this Court to certify this question to the Michigan

Supreme Court. But at this point, the Michigan Court of Appeals has interpreted section 750.145d

to authorize multiple punishments. Sturza, 2019 WL 2605758 at *5. In doing so, that court

expressly rejected the defendant’s argument that “the Legislature lacks the authority to violate the

Double Jeopardy Clause,” and treated this issue as entirely one of legislative intent. Id. Given the

Michigan Supreme Court’s adoption of Hunter and its holdings affirming that the legislature has

authorized cumulative punishments for other offenses, we have no reason to believe that the

Michigan Supreme Court would find otherwise. We are not convinced that there is any need to

certify this question to the Michigan Supreme Court, and we decline to do so.

                                         CONCLUSION

       Reeves’ convictions do not violate the Double Jeopardy Clause because the Michigan

legislature authorized multiple punishments for his offense. Having found so, we need not—and

do not—reach the question of whether Reeves’ convictions also penalized multiple acts.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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