               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0517n.06

                                           No. 16-1229                                FILED
                                                                                 Sep 05, 2017
                                                                             DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

ROBERT REEVES,

       Petitioner-Appellant,
V.
                                                     ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
SHERMAN CAMPBELL,
                                                     EASTERN DISTRICT OF MICHIGAN
       Respondent-Appellee.




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

       CLAY, Circuit Judge. Petitioner Robert Reeves, a former Michigan prisoner proceeding

with counsel, appeals the district court’s judgment denying his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254. We granted Petitioner a certificate of appealability on

his double jeopardy claim, including whether the claim is procedurally defaulted and, if so,

whether ineffective assistance of appellate counsel excuses that procedural default. Because

Respondent raised for the first time on appeal arguments that could be outcome determinative

with regard to Petitioner’s double jeopardy claim, we remand this case to the district court to

address Respondent’s arguments that concern whether the state legislature authorized cumulative

punishments for the offenses at issue and whether Petitioner committed multiple criminal acts

thereby permitting multiple punishments.
                                            No. 16-1229


       For the reasons that follow, we VACATE the district court’s judgment and REMAND

the case to the district court for proceedings consistent with this opinion.

                                         BACKGROUND

A. Factual History

       Between August 2006 and April 2007, Petitioner used the Internet to communicate with

an undercover police officer posing as a 14-year-old girl. When Petitioner arrived to meet the

underage girl in Novi, Michigan, the police arrested him. Petitioner was charged and pleaded

guilty to (1) using a computer to arrange for child sexually abusive activity (Mich. Comp. Laws

§ 750.145d(2)(f)); and (2) the lesser-included offense of arranging for child sexually abusive

activity (Mich. Comp. Laws § 750.145c(2)). In November 2007, the Michigan state trial court

sentenced Petitioner to concurrent terms of 6 ½ to 20 years in prison.

       Petitioner applied for leave to appeal. Petitioner’s appellate counsel argued that trial

counsel had rendered ineffective assistance of counsel by failing to object to the trial court’s

application of the state sentencing guidelines. On February 29, 2008, the Michigan Court of

Appeals denied Petitioner’s application for lack of merit. On June 23, 2008, the Michigan

Supreme Court denied Petitioner leave to appeal.

       In July 2008, Petitioner filed a petition for writ of habeas corpus in federal district court.

On August 5, 2010, the district court denied the petition because Petitioner had failed to exhaust

his state court remedies. On March 29, 2011, we denied a certificate of appealability.

       In December 2011, Petitioner returned to state court and moved for post-judgment relief

under Michigan Court Rule 6.502.         Petitioner argued that his claim was not barred under

Michigan Court Rule 6.508(D)(3), which provides that a court may not grant relief to a

defendant if the motion for relief from judgment alleges grounds for relief which could have



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                                           No. 16-1229


been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds

previously and actual prejudice resulting therefrom. Petitioner argued that (1) the trial court had

violated state procedural requirements governing preliminary examinations, and (2) Michigan

had convicted him of two crimes that constitute the same offense under the Double Jeopardy

Clause of the Fifth Amendment.

       On November 9, 2012, the Oakland County Circuit Court denied Petitioner’s motion,

holding as to the double jeopardy claim that Petitioner “fail[ed] to provide any legal authority

that his constitutional rights were violated” because “[t]he charges involve two different statutes

with different elements.” (R. 14-6, Oakland Cty. Circuit Court’s Op’n Denying Mot. for Relief

from Judgment, Page ID # 450−51.)           The Oakland County Circuit Court denied relief,

concluding that Petitioner “fail[ed] to satisfy the Court that any good cause or actual prejudice

exists, including ineffective assistance of counsel at trial or appellate level.” (Id. at 451.) The

Michigan Court of Appeals denied Petitioner’s leave to appeal, and the Michigan Supreme Court

did the same on November 25, 2013.

B. Procedural History

       On March 6, 2014, Petitioner re-filed his habeas corpus petition in the district court

pursuant to 28 U.S.C. § 2254. On February 12, 2016, the district court denied the petition as to

Petitioner’s double jeopardy claim on procedural grounds and on the merits. The district court

first noted that the Oakland County Circuit Court denied relief on procedural grounds because

Petitioner had not shown cause or prejudice under Michigan Court Rule 6.508(D)(3) to excuse

his failure to raise the double jeopardy claim on direct appeal in the first instance. The district

court thus held that Petitioner’s double jeopardy claim was procedurally defaulted.




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       The district court then explained that a state prisoner who fails to comply with a state’s

procedural rules forfeits the right to federal habeas review unless the prisoner makes a showing

of cause for noncompliance and actual prejudice resulting from the alleged constitutional

violation, or makes a showing of a fundamental miscarriage of justice. The district court held

that Petitioner failed to demonstrate that appellate counsel’s decision to omit the double jeopardy

claim on direct appeal in the first instance rendered his counsel ineffective because “[n]one of

these defaulted claims are ‘dead-bang winners’ as evidenced by the state trial court’s

[alternative] ruling . . . that the [double jeopardy] claim[ ] raised in the motion for relief from

judgment lacked merit.” (R. 16, Second District Court Op’n, Page ID # 801.)

       The district court further held that even if Petitioner could demonstrate that appellate

counsel rendered ineffective assistance, he “cannot show that he was prejudiced by counsel’s

conduct (or demonstrate prejudice to excuse the procedural default) because the defaulted claims

lack merit for the reasons set forth by the state trial court.” (Id. at 801−02.) The district court

also held that Petitioner failed to show that a fundamental miscarriage of justice had occurred.

The district court ultimately concluded that habeas relief was not warranted because the double

jeopardy claim was procedurally defaulted and lacked merit, and the ineffective assistance of

appellate counsel claim, while not procedurally defaulted, lacked merit. The district court also

denied Petitioner a certificate of appealability.

       Petitioner moved this Court for a certificate of appealability to appeal the district court’s

judgment denying his petition for a writ of habeas corpus. On July 19, 2016, we granted

Petitioner a certificate of appealability on his double jeopardy claim, including whether the claim

is procedurally defaulted, and if so, whether ineffective assistance of appellate counsel excuses

that procedural default.    Reeves v. Campbell, No. 16-1229 (6th Cir. July 19, 2016).           On



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                                           No. 16-1229


September 20, 2016, we granted Petitioner’s motion for appointment of counsel. Reeves v.

Campbell, No. 16-1229 (6th Cir. Sep. 20, 2016).

                                          DISCUSSION

       In this appeal, we must first determine whether Petitioner’s habeas corpus petition is

timely. If we determine that the petition is timely, we must next determine whether the district

court erred in determining that Petitioner’s double jeopardy claim is procedurally defaulted and

lacks merit.

       For the reasons stated below, we hold that the petition is timely, that there is cause and

prejudice to excuse the procedural default of Petitioner’s double jeopardy claim, and that the

district court erred in rejecting Petitioner’s double jeopardy claim on the merits. Respondent,

however, argues for the first time on appeal that the Supreme Court has permitted cumulative

punishments if such punishments have been authorized by the state legislature. See Missouri v.

Hunter, 459 U.S. 359 (1983).       Because Respondent advances for the first time on appeal

arguments that could be outcome determinative with regard to Petitioner’s double jeopardy

claim, we remand this case to the district court to address whether the state legislature authorized

cumulative punishments for the offenses at issue and whether Petitioner committed multiple

criminal acts thereby permitting multiple punishments.

A. Timeliness of Petition

       We review de novo a district court’s determination whether a petition is untimely

pursuant to the statute of limitations. See Dixon v. Clem, 492 F.3d 665, 673 (6th Cir. 2007).

        Petitioner argues that his petition is timely. First, he argues that the limitations period

started running when the judgment of conviction became final on September 23, 2008, 90 days

after the Michigan Supreme Court denied him leave to appeal. Secondly, he contends that the



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                                            No. 16-1229


limitations period was tolled while the application for state post-conviction review was pending

from December 1, 2011 until November 25, 2013. Third, as the district court ruled in its first

opinion, he asserts that equity tolled the limitations period during the pendency of an earlier,

unexhausted habeas corpus petition in federal court from September 23, 2008 through at least

March 29, 2011. Petitioner thus contends that the limitations period was running at most from

March 30, 2011 through November 30, 2011, and again from November 26, 2013 through March

6, 2014—a total of 347 days.

       Respondent argues that the petition is untimely because for one, the one-year limitations

period began running on August 6, 2010, the day after the federal district court issued its first

opinion. Petitioner then had one year, until August 6, 2011, within which he could return to

federal court to re-file a habeas petition, or to instead file an application for state post-conviction

or other collateral review, which would toll the one-year statute of limitations period.

Respondent therefore contends that Petitioner did not file his state-court motion for relief from

judgment until December 2011, nearly four months after the statute of limitations expired,

thereby making his petition untimely.

       1. Relevant Legal Principles

        The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that “[a] 1-year

period of limitation shall apply to an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). “The limitation

period shall run from . . . the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

The statute of limitations is tolled during the time “which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or claim is



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                                           No. 16-1229


pending.” 28 U.S.C. § 2244(d)(2). If a petitioner appeals to the Michigan Supreme Court and

does not petition the United States Supreme Court for a writ of certiorari, the petitioner’s

judgment of conviction is finalized when the time for seeking review from the United States

Supreme Court expires. Thus, the one-year statute of limitations begins running at that time.

Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).

       A petitioner may challenge the validity of the judgment of conviction by filing a motion

for relief from judgment. A properly filed motion for relief from judgment or other post-

conviction or collateral review tolls the running of the one-year statute of limitations during the

pendency of that application. See 28 U.S.C. § 2244(d)(2). A petitioner’s one-year limitations

period is tolled “during the period in which he could have, but did not, appeal” the state appellate

court’s denial of his motion for post-conviction relief. Holbrook v. Curtin, 833 F.3d 612, 619

(6th Cir. 2016).

       The habeas statute of limitations is also subject to equitable tolling. Holland v. Florida,

560 U.S. 631, 634 (2010). Equitable tolling is available to habeas petitioners challenging their

state-court conviction when a petitioner can demonstrate (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way. Id. at 649. Ignorance

of the law, illiteracy, and lack of legal assistance do not amount to grounds for equitable tolling.

Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004).

       2. Statutory and Equitable Tolling

       We find that Petitioner filed the current petition within the 365-day limitations period.

First, the 365-day limitations period started to run on September 23, 2008. The Michigan

Supreme Court denied Petitioner leave to appeal his conviction on June 23, 2008. Petitioner had

90 days thereafter to file a petition for writ of certiorari with the United States Supreme Court



                                                 7
                                           No. 16-1229


after the Michigan Supreme Court denied him leave to appeal on June 23, 2008. See Bronaugh,

235 F.3d at 283. Thus, the limitations clock started to run on September 23, 2008 when

Petitioner’s conviction became final with the expiration of time to seek certiorari with the

Supreme Court. See § 2244(d)(1)(A).

       Second, the limitations period was tolled from September 23, 2008 through March 29,

2011 while the first habeas corpus petition was pending in federal district court and this Court.

Petitioner filed his first habeas corpus petition in federal district court in July 2008. On August

5, 2010, the district court rejected Petitioner’s first habeas petition for failure to exhaust state-

court remedies. Petitioner then appealed the district court’s exhaustion decision to this Court,

and on March 29, 2011, we denied Petitioner a certificate of appealability. Though the district

court did not discuss whether Petitioner pursued his unexhausted claims diligently or whether

extraordinary circumstances prevented him from exhausting his claims, it promised that it would

equitably toll the time Petitioner’s unexhausted petition spent pending in federal court. As the

district court held in its first opinion, the time an unexhausted petition has been pending in

federal court is equitably tolled. (See R. 1-1, First Dist. Ct. Op’n, Page ID # 114.) A case

remains “pending” until it “achieve[s] final resolution” through the “appellate review process.”

Carey v. Saffold, 536 U.S. 214, 219−20 (2002). Regardless of whether the district court’s

decision to grant equitable tolling was appropriate, Petitioner was entitled to rely on its promise.

See generally Griffin v. Rogers, 399 F.3d 626, 638 n.5 (6th Cir. 2005). Thus, the limitations

period was tolled while Petitioner’s first petition was “pending” in federal district court and this

Court from September 23, 2008 through March 29, 2011.

       We note, however, that it may not be appropriate in many instances for the district court

to award equitable tolling for the time a mixed petition remains pending in federal court. Before



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                                             No. 16-1229


awarding equitable tolling, the district court must first determine that a prisoner has pursued his

unexhausted claims “diligently” and that “extraordinary circumstances” prevented him from

exhausting his claims in state court. See Holland, 560 U.S. at 649. Equitable tolling must be a

case-by-case determination.      As we have explained, “[t]he virtue of relying on equitable

tolling . . . lies in the very nature of such tolling as the exception, not the rule.” Thomas v.

Romanowski, 362 F. App’x 452, 455 (6th Cir. 2010).

       Indeed, equitable tolling, if employed too frequently, would “frustrate AEDPA’s

objective of encouraging finality by allowing a petitioner to delay the resolution of the federal

proceedings. . . . [and] also undermine[] AEDPA’s goal of streamlining federal habeas

proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court.”

Rhines v. Weber, 544 U.S. 269, 277 (2005). For these same reasons, the Court has held that

district courts have only “limited” authority to hold a prisoner’s petition in “abeyance” while he

goes back to state court to exhaust his unexhausted claims. Id. at 277 (explaining that district

courts may only grant stay-and-abeyance if the petitioner has shown “good cause” for his failure

to exhaust claims that are not “plainly meritless”). The same considerations limit a district

court’s discretion to grant equitable tolling.

       Third, the limitations period was tolled again from December 1, 2011 through November

25, 2013 while Petitioner’s application for state post-conviction relief was pending in state court.

See § 2244(d)(2). On December 1, 2011, Petitioner filed a motion for relief from judgment in

state court. On November 25, 2013, the Michigan Supreme Court denied Petitioner leave to

appeal the state court’s denial of his motion for relief from judgment. Thus, on November 25,

2013, Petitioner’s state post-conviction review ended with the Michigan Supreme Court’s denial

of his leave to appeal.



                                                 9
                                           No. 16-1229


       On March 6, 2014, Petitioner’s current habeas corpus petition was entered in the district

court’s docket. Therefore, the limitations period began running again from November 26, 2013

through March 6, 2014.

       Based on the calculations above, the limitations period began running on September 23,

2008 and ended March 6, 2014. The limitations period was tolled from September 23, 2008

through March 29, 2011 while Petitioner’s first and unexhausted habeas petition was pending in

federal district court and this Court. The limitations period started again on March 30, 2011 and

ran until December 1, 2011, which is the date when Petitioner sought post-conviction relief from

judgment in state court. From December 1, 2011 through November 25, 2013, the limitations

period was tolled while state post-conviction was pending in state court. Thus, the limitations

period was running from March 30, 2011 through November 30, 2011, and again from

November 26, 2013 through March 6, 2014—a total of 347 days. Petitioner’s current habeas

petition was filed well within the one-year limitations period permitted by AEDPA.

       For the aforementioned reasons, we find that Petitioner’s habeas corpus petition is timely.

B. Procedural Default

       We review de novo a district court’s decision whether a state court rested its holding on

procedural default and its application of the cause and prejudice rules. Combs v. Coyle, 205 F.3d

269, 275 (6th Cir. 2000); Girts v. Yanai, 501 F.3d 743, 753 (6th Cir. 2007).

       1.      Relevant Legal Principles

       A federal court is precluded from reviewing a claim in a habeas petition if the last state

court to issue a reasoned decision “rest[ed] its judgment on the procedural default.” Harris v.

Reed, 489 U.S. 255, 262 (1989). Under AEDPA, a petitioner’s claims are procedurally defaulted

if the state habeas court has “clearly and expressly” invoked the petitioner’s failure to comply



                                               10
                                            No. 16-1229


with state procedural requirements as a basis for denying relief in state court. Id. at 263. If, on

the other hand, the denial of state habeas relief “is ambiguous as to whether the judgment rests

on a procedural bar,” ibid. (emphasis added), then AEDPA requires us to presume that the state-

court determination was on the merits, and the petitioner’s claims are not procedurally defaulted

for the purpose of federal habeas review.

       A habeas corpus petitioner can overcome a procedural default by showing “‘cause for the

default and prejudice from the asserted error.’” Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir.

2015) (internal citation omitted). Ineffective assistance of counsel, including appellate counsel,

“constitutes sufficient cause to excuse [a] procedural default.” Gunner v. Welch, 749 F.3d 511,

520 (6th Cir. 2014). A petitioner who establishes ineffective assistance of counsel automatically

satisfies the prejudice component. See Strickler v. Greene, 527 U.S. 263, 282 (1999). In order to

demonstrate ineffective assistance of counsel, the petitioner must show that (1) “counsel’s

performance was deficient,” and that (2) “the deficiency prejudiced the defense.” Goff v. Bagley,

601 F.3d 445, 463 (6th Cir. 2010) (citation omitted).

       2. Procedural Default

       Here, in denying Petitioner relief, the state habeas court unambiguously cited Michigan

Court Rule 6.508(D)(3) as the procedural rule with which Petitioner failed to comply. (R. 14-6

at 450).   Although “brief orders citing Rule 6.508(D)” generally may refer either “to a

petitioner’s failure to meet his burden on the merits” or to a procedural default, we have held that

citing Rule 6.508(D)(3) specifically is, “by necessity,” an invocation of a “procedural-default

rule.” Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc); see also Jackson v.

Harris, 453 F. App’x 620, 623, n.1 (6th Cir. 2011). Thus, the state habeas court’s statement that

Petitioner’s double jeopardy claim “could have been raised on appeal or in a prior motion,”



                                                11
                                           No. 16-1229


together with that court’s citation of Rule 6.508(D)(3) is sufficient to state clearly and expressly

that Petitioner’s claims were procedurally barred. That the state court analyzed the merits of

Petitioner’s double jeopardy claim only in the context of determining whether Petitioner could

show cause and prejudice—that is, only in the context of determining whether Petitioner could

excuse his procedural default—further supports our conclusion that Petitioner’s claims are

indeed procedurally defaulted.

       3. Cause and Prejudice

       Petitioner argues that this procedural default may be excused because his counsel’s

failure to raise the double jeopardy claim on direct appeal in state court constitutes ineffective

assistance of counsel.    Although appellate counsel is “strongly presumed to have rendered

adequate assistance,” Strickland v. Washington, 466 U.S. 668, 690 (1984), failure to raise a

“significant and obvious” claim can amount to reversible error. Mapes v. Tate, 388 F.3d 187,

192 (6th Cir. 2004). Petitioner’s double jeopardy claim meets this high standard. It is significant

because, as Petitioner readily points out, it would have resulted in the automatic reversal of one

of Reeves’s two convictions.       See id. (“[T]he claim was significant because” it involved

“reversible error.”). And it was obvious because although Petitioner was convicted under two

differently worded statutes, “[i]t has long been understood that separate statutory crimes need not

be identical either in constituent elements or in actual proof in order to be the same within the

meaning of the [Double Jeopardy Clause].” Brown v. Ohio, 432 U.S. 161, 164 (1977). By

failing to raise such a “significant and obvious” claim on direct appeal in state court, Petitioner’s

appellate counsel “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at

688.




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                                           No. 16-1229


       Deficient performance, however, is only the first element of an ineffective-assistance-of-

counsel claim. Petitioner must also show that his counsel’s deficient performance resulted in

prejudice. This requires Petitioner to show “that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” i.e., that the omitted claim would have

brought Petitioner relief. Id. at 694. Thus, whether Petitioner can satisfy the prejudice element

of his ineffective-assistance-of-counsel claim (and in turn, show cause to excuse his procedurally

defaulted double jeopardy claim) turns entirely on whether that double jeopardy claim has merit.

C. Merits

       We review de novo a district court’s legal conclusions, including its double jeopardy

rulings. Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996).

        Petitioner argues that the greater offense of using a computer to arrange for child

sexually abusive activity is the “same” as the lesser-included offense of arranging for child

sexually abusive activity because every element of the lesser-included offense is also an element

of the greater offense. Petitioner contends that the state and district court’s rationales directly

contradict Blockburger, where the Supreme Court held that two crimes are distinct for double

jeopardy purposes only if each crime contains an element that the other does not, and Brown v.

Ohio, where the Supreme Court held that a greater offense is the same as any lesser-included

offense for double jeopardy purposes. Petitioner asserts that convicting him of both of the two

offenses to which he pleaded guilty violates his constitutional rights under the Double Jeopardy

Clause because one is a lesser-included offense of the other and are thus the same for purposes of

double jeopardy.

       Respondent argues that Petitioner’s double jeopardy claim lacks merit. Alternatively,

Respondent argues for the first time on appeal that even if the two offenses are the same for



                                                13
                                           No. 16-1229


double jeopardy purposes under Blockburger, a court’s inquiry into the matter is finished if there

is evidence that a state legislature intended to authorize cumulative punishments. See Missouri v.

Hunter, 459 U.S. 359 (1983) (holding that cumulative punishment does not run afoul of the

Double Jeopardy Clause if the legislature specifically authorized it). Respondent contends that

the Michigan legislature expressly intended that the offenses to which Petitioner pleaded guilty

to give rise to separate liability and cumulative punishments.        See Mich. Comp. Laws §§

750.145d(3)−(5).    Respondent finally argues that even if we are not persuaded by his

aforementioned arguments, we should nevertheless find that Petitioner’s double jeopardy claim

lacks merit because he was not subject to multiple punishments for a single criminal act, but

rather was subjected to multiple punishments for multiple criminal acts.

       1. Relevant Legal Principles

       The Double Jeopardy Clause of the Fifth Amendment states that “[n]o person shall . . . be

subject for the same offence to be twice put in jeopardy of life or limb.” The Fourteenth

Amendment makes this Clause binding on the states. Benton v. Maryland, 395 U.S. 784, 795

(1969). In Blockburger, the Supreme Court instituted the test that determines whether two

statutes punish the “same offence” for purposes of double jeopardy. Blockburger maintains that

two offenses are distinct only if each offense “requires proof of a fact which the other does not.”

284 U.S. at 304. Under this test, a “greater offense is therefore by definition the ‘same’ for

purposes of double jeopardy as any lesser offense included in it” because a lesser offense

“requires no proof beyond that which is required for conviction of the greater [offense].” Brown,

432 U.S. at 168.

       AEDPA provides that a federal court may grant relief on a state prisoner’s habeas corpus

petition only if the state court’s rejection of the prisoner’s claim on the merits “was contrary to,



                                                14
                                           No. 16-1229


or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established law if the

state court “applies a rule that contradicts the governing law set forth in [the Supreme Court’s]

cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision unreasonably applies clearly

established law if the state court applies the correct rule in an “objectively unreasonable” way.

Williams, 529 U.S. at 409.

       2. The Blockburger Test

       In this case, the two offenses to which Petitioner pleaded guilty are undoubtedly the

“same” under Blockburger and Brown 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. Petitioner pleaded guilty to (1) using a

computer to arrange for child sexually abusive activity (Mich. Comp. Laws § 750.145d), and

(2) the lesser included offense of arranging for child sexually abusive activity (Mich. Comp.

Laws § 750.145c). In fact, § 750.145d includes the lesser offense, § 750.145c, within its

definition. See Mich. Comp. Laws § 750.145d (stating that “[a] person shall not use . . . a

computer . . . to communicate with any person for the purpose of . . . [c]ommitting, attempting to

commit, conspiring to commit, or soliciting another person to commit conduct proscribed under

section . . . 145c . . . in which the victim or intended victim is a minor or is believed by that

person to be a minor”).

       This case presents the clearest example of double jeopardy. In Brown, the offenses at

issue were joyriding and auto theft. The state court defined “joyriding” to consist of “taking or

operating a vehicle without the owner’s consent,” and “auto theft” to consist of “joyriding with

the intent permanently to deprive the owner of possession.” 432 U.S. at 167. “Joyriding [wa]s



                                                15
                                           No. 16-1229


the lesser included offense.” Id. The Supreme Court held that “joyriding and auto theft, as

defined by the [state] court, constitute ‘the same statutory offense’ within the meaning of the

Double Jeopardy Clause.” Id. at 168. The Court went on to state that “[a]s is invariably true of a

greater and lesser included offense, the lesser offense [of] joyriding requires no proof beyond

that which is required for conviction of the greater auto theft.” Id. Thus, “[t]he greater offense is

therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included

in it.” Id.   “This conclusion merely restates what has been this Court’s understanding of the

Double Jeopardy Clause at least since In re Nielsen was decided in 1889.” Id.

       Applying the Court’s precedent, we find that the two offenses, § 750.145c and §

750.145d, constitute the same statutory offense under the Double Jeopardy Clause. The lesser

included offense (§ 750.145c) requires no proof beyond that which is required for conviction of

the greater offense (§ 750.145d). Thus, “[t]he greater offense is therefore by definition the

‘same’ for purposes of double jeopardy as any lesser offense included in it.” Brown, 432 U.S. at

168.

               a. AEDPA Deference

       We find that AEDPA is not a bar to Petitioner receiving relief in this case because the

state court’s rejection of Petitioner’s claim on the merits “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court.” 28 U.S.C. § 2254(d)(1). The state court issued an opinion explaining that it denied

Petitioner’s double jeopardy claim because the charges involve “different statutes with different

elements.” (R. 14-6 at 451.) The opinion’s rejection of Petitioner’s double jeopardy claim was

incorrect in two ways: (1) the decision was contrary to clearly established law because the state

court misstated the Blockburger test; and (2) the decision unreasonably applied the Blockburger



                                                 16
                                          No. 16-1229


test because it was objectively unreasonable to conclude that the two offenses were not the

“same” for purposes of double jeopardy.

       As mentioned above, Blockburger maintains that two offenses are distinct only if each

offense “requires proof of a fact which the other does not.” 284 U.S. at 304. The state court

rejected Petitioner’s double jeopardy claim because the offenses involved different statutes with

different elements. The state court’s test is at odds with the test outlined by the Court in

Blockburger and Brown. For one, the fact that the statutes are different and have different

elements does not mean that they are effectively not the same for double jeopardy purposes. The

issue is whether one of the offenses requires proof of a fact that the other does not and not

whether they have different elements.     Secondly, the lesser offense of arranging for child

sexually abusive activity (§ 750.145c) is included in the greater offense of using a computer to

arrange for child sexually abusive activity (§ 750.145d). Under Brown, the “greater offense” is

“invariably” “the ‘same’ for purposes of double jeopardy as any lesser offense included in it.”

Brown, 432 U.S. at 168.

       Therefore, we find that AEDPA does not preclude Petitioner from obtaining relief

because the state court’s rejection of Petitioner’s claim on the merits “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court.” 28 U.S.C. § 2254(d)(1). However, this does not conclude our analysis on the

issue of double jeopardy. We must next determine whether Respondent forfeited his new

argument concerning the Supreme Court’s decision in Missouri v. Hunter.

              b. Cumulative Punishments and Missouri v. Hunter

       Respondent raises for the first time on appeal the argument that the Supreme Court has

permitted cumulative punishments if such punishments have been authorized by the state



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legislature. Respondent relies on Missouri v. Hunter for the proposition that a state may convict

a defendant for two offenses that are the same under Blockburger if (1) it does so “in a single

trial” and (2) the legislature “specifically authorizes cumulative punishment.”      459 U.S. at

368−69. Respondent asserts that the state secured both convictions in a single trial and the state

legislature authorized cumulative punishments for the offenses to which Petitioner pleaded

guilty. See Mich. Comp. Laws § 750.145d(3)-(5) (stating, among other things, that “[t]his

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”).

       Because Respondent raised the Missouri v. Hunter argument for the first time in front of

us on appeal, Respondent failed to properly preserve this argument for appellate review. (See R.

36, Respondent’s Answer to Petition, Page ID # 347 (Respondent’s answer to Petitioner’s instant

habeas corpus petition did not raise, let alone mention, the alternative argument that the state

legislature authorized cumulative punishments for the two offenses).) See United States v.

Boumelhem, 339 F.3d 414, 428 (6th Cir. 2003) (noting that a party forfeits an “alternative

argument in support of a lower court’s decision” “by failing to raise the issue in the district

court”).

       Thus, we find that this argument has been forfeited for purposes of this appeal due to

Respondent’s failure to raise the argument in the district court. Respondent also raised for the

first time on appeal the argument that Petitioner’s convictions do not violate the Double Jeopardy

Clause because he was subjected to multiple punishments for multiple criminal acts rather than a

single criminal act.   We find that Respondent has also forfeited the argument concerning

multiple criminal acts. Although both parties addressed this forfeiture issue at oral argument and



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asked us to rule on these matters in the first instance, we will not attempt to address these two

arguments for the first time on appeal. See Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012)

(“[A]ppellate courts ordinarily abstain from entertaining issues that have not been raised and

preserved in the court of first instance”).

       Because the Missouri v. Hunter argument could be outcome determinative, we think 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. See Taft Broad. Co. v. United States,

929 F.2d 240, 245 (6th Cir. 1991) (stating that with regard to an appellate court’s discretion to

consider issues raised for the first time on appeal, “[p]erhaps more important is that fact that the

parties were entitled under our judicial system to have the issues in this suit considered initially

by the district judge; his valued judgment adds much to the deliberative process and allows this

court its proper function—to determine if an erroneous decision was made as to the issues

presented”); see also United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (“Under 28

U. S. C. § 2106 the courts of appeals have broad discretion to issue general or limited

remands.”). On remand, the district court can review and consider these arguments after they

have been properly briefed and argued before the court in the first instance.

       3. Summary

       For the reasons stated above, we hold that Petitioner’s double jeopardy claim warrants

further review.    The record clearly demonstrates that the two offenses to which Petitioner

pleaded guilty are the “same” under the test articulated in Blockburger and reaffirmed in Brown.

Furthermore, Petitioner’s procedural default does not preclude us from granting Petitioner relief

because his state appellate counsel’s failure to raise the claim amounted to ineffective assistance

of counsel sufficient to excuse the default.        Finally, Respondent forfeited his cumulative



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punishments and multiple-criminal-acts arguments because he failed to raise them before the

district court. On remand, the parties may brief the district court on these two new arguments so

that the district court can properly review and consider them.

                                        CONCLUSION

       For the aforementioned reasons, we VACATE the district court’s judgment and

REMAND the case to the district court for proceedings consistent with this opinion.




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