                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0765n.06

                                      Case No. 13-1695
                                                                                   FILED
                                                                              Oct 03, 2014
                           UNITED STATES COURT OF APPEALS
                                                                         DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


DIEGO GALVAN,                                       )
                                                    )
        Petitioner-Appellant,                       )
                                                    )        ON APPEAL FROM THE
v.                                                  )        UNITED STATES DISTRICT
                                                    )        COURT FOR THE EASTERN
JOHN PRELESNIK,                                     )        DISTRICT OF MICHIGAN
                                                    )
        Respondent-Appellee.                        )
                                                    )                            OPINION

BEFORE:           COLE, Chief Judge; KEITH and BATCHELDER, Circuit Judges.

        COLE, Chief Judge. Petitioner–Appellant Diego Galvan, a Michigan prisoner, appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. He argues that his

conviction of both first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), and the

predicate felony of first-degree home invasion, id. § 750.110a(2), violates the Double Jeopardy

Clause of the Fifth Amendment. For the reasons set forth below, we affirm the judgment of the

district court.

                                     I. BACKGROUND

        A. The Facts

        Galvan’s convictions arise from the shooting death of Laval Crawford outside his home

on September 13, 2008.
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       Galvan and his codefendants—Jean Carlos Cintron, Bryan Valentin, and Raul Galvan—

went to Antoine Hurner’s house looking for Crawford because Crawford had allegedly robbed

Cintron. After Hurner refused to give Crawford’s contact information, the group left.

       Later, Galvan and his codefendants forced their way into Crawford’s home.           Once

Crawford arrived outside the home, the group went out the front door and fired their guns.

Crawford was hit twice. It is unclear who fired the first shot that hit Crawford. However,

according to eyewitness Teisha Johnson, Galvan fired the second shot that hit Crawford.

       Defendant Galvan was tried in Michigan state court along with his codefendants.

Valentin had a separate jury.

       After trial, Galvan was convicted of felony murder, Mich. Comp. Laws § 750.316(1)(b),

second-degree murder, id. § 750.317, first-degree home invasion, id. § 750.110a(2), and three

counts of possession of a firearm during the commission of a felony, id. § 750.227b. He was

sentenced to concurrent sentences of life for felony murder, forty to sixty years for second-

degree murder, ten to thirty years for home invasion, and concurrent sentences of two years for

each firearm conviction. People v. Galvan, No. 292877, 2010 WL 5093376, at *1 (Mich. Ct.

App. Dec. 14, 2010).

       B. Procedural History

               1. State Appellate Process

       On direct appeal, Galvan argued that (1) his trial counsel was ineffective for failing to

request a separate trial from his codefendants, failing to conduct a pretrial investigation, and

failing to file certain pretrial motions; (2) his convictions for felony murder and second-degree

murder violated the Double Jeopardy Clause of the Michigan and United States Constitutions;

(3) his convictions for felony murder and the predicate felony of home invasion violated the


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Double Jeopardy Clause of the Michigan and United States Constitutions; and (4) his sentence

was misscored under the state guidelines. Id. at *1-5.

       The Michigan Court of Appeals agreed that Galvan’s conviction for felony murder and

second-degree murder for the death of a single victim violated the Double Jeopardy Clause and

that his sentence was misscored. The court rejected Galvan’s remaining claims. Id. In rejecting

Galvan’s claim that his convictions for felony murder and the predicate felony of home invasion

violated the Double Jeopardy Clause, the Michigan Court of Appeals stated:

       Convicting and sentencing a defendant for both felony murder and the predicate
       felony does not violate double jeopardy if each offense has an element that the
       other does not. Home invasion contains an element not contained in felony
       murder, namely, the breaking and entering of a dwelling. Felony murder contains
       an element not contained in home invasion, namely, the killing of a human.
       Accordingly, this combination of convictions does not constitute a double
       jeopardy violation.
Id. at *4 (citations omitted). The Michigan Supreme Court denied Galvan’s application for leave

to appeal. People v. Galvan, 796 N.W.2d 254 (Mich. 2011).

               2. Federal Habeas Review

       Galvan then petitioned for habeas corpus relief under 28 U.S.C. § 2254. He raised the

same claims that he raised on direct appeal except for his challenge to the scoring of his

sentence. The magistrate judge issued a report and recommendation denying relief. The district

court adopted the magistrate judge’s recommendation to deny relief and denied Galvan a

certificate of appealability.   Galvan appealed, and this court granted him a certificate of

appealability on his double jeopardy claim.




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                                         II. ANALYSIS

       A. Standard of Review

       For habeas petitions, this court reviews a district court’s legal conclusion de novo and its

factual findings for clear error. Adams v. Holland, 330 F.3d 398, 400 (6th Cir. 2003). The

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires us to deny habeas

relief to a claim adjudicated by a state court on the merits unless the state court’s decision

(1) “was contrary to, or involved an unreasonable application of, clearly established Federal law

as determined by the Supreme Court of the United States;” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d). A state court decision is contrary to law as established by the Supreme

Court if it “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question

of law or if the state court decides a case differently than [the Supreme Court] has on a set of

materially indistinguishable facts.”    Williams v. Taylor, 529 U.S. 362, 413 (2000).           The

“unreasonable application of clearly established federal law” clause permits federal habeas relief

if the state court correctly identified, but unreasonably applied, the governing legal principle

from Supreme Court precedent to the facts of the petitioner’s case. Id. at 413.

       B. Merits

       Galvan argues that his conviction of both first-degree felony murder and the predicate

felony of first-degree home invasion violates the Double Jeopardy Clause. The Double Jeopardy

Clause of the Fifth Amendment of the United States Constitution provides, “No

person . . . shall . . . be subject for the same offence to be twice put in jeopardy of life or limb

. . . .” U.S. CONST. amend. V. This clause is applicable to the states through the Due Process

Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). The Due


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Process Clause affords a criminal defendant three basic protections: (1) protection from a second

prosecution of the same offense following acquittal; (2) protection from a second prosecution of

the same offense following conviction; and (3) protection from multiple punishments for the

same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce,

395 U.S. 711, 717 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794

(1989)).

       This case concerns the third protection. However, our review of this claim is limited.

“With respect to cumulative sentences 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.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). In Blockburger v. United

States, 284 U.S. 299 (1932), the Supreme Court developed the “same elements” test to determine

whether Congress authorized multiple punishments. It stated, “the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires proof of a fact

which the other does not.” Id. at 304. “The Blockburger test, however, is a rule of statutory

construction, not a constitutional test in and of itself.” Volpe v. Trim, 708 F.3d 688, 696 (6th Cir.

2013) (internal citations and quotation marks omitted).

       “When assessing the intent of a state legislature, a federal court is bound by a state

court’s construction of that state’s own statutes.” Banner v. Davis, 886 F.2d 777, 780 (6th Cir.

1989). “Thus, for purposes of double jeopardy analysis, once a state court has determined that

the state legislature intended cumulative punishments, a federal habeas court must defer to that

determination.” Id.; see also Dodge v. Robinson, 625 F.3d 1014 (8th Cir. 2010) (denying a

petition for habeas corpus based on a double-jeopardy multiple-punishment claim where the state

court held, after applying Blockburger, that the two crimes were not the same offense and the


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Galvan v. Prelesnik

legislature therefore intended cumulative punishment); McCloud v. Deppisch, 409 F.3d 869, 871

(7th Cir. 2005) (same); Birr v. Shillinger, 894 F.2d 1160 (10th Cir. 1990) (same).

        In Pryor v. Rose, 724 F.2d 525, 530-31 (6th Cir. 1984), this court seemed to imply that a

federal habeas court does not have to defer to the state legislature and may conduct its own

interpretation of a state’s statutes in the double jeopardy context. However, in Banner v. Davis,

we clarified that a federal court sitting in habeas can only conduct its own interpretation of a

state’s statutes in the “narrow situation in which the state courts below had failed to give a clear

expression on the issue of cumulative punishment.” 886 F.2d at 782.

        Here the Michigan Appellate Court did consider the felony murder issue. It applied the

“same elements” test from Blockburger, and it concluded that they were not the same offense

because each had an element that the other did not. It stated, “Home invasion contains an

element not contained in felony murder, namely, the breaking and entering of a dwelling. Felony

murder contains an element not contained in home invasion, namely, the killing of a human.”

Galvan, 2010 WL 5093376, at *4 (internal citations omitted). Whether or not we agree with this

analysis, in this instance, we must defer to the state courts in their interpretation of state law.

                                           III. Conclusion

        For the foregoing reasons, we affirm the district court’s judgment.




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