                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1922
                        ___________________________

                                    Fred Johnson

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                            Darin Young, Warden, et al.

                      lllllllllllllllllllllRespondents - Appellees
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                    ____________

                          Submitted: December 11, 2014
                            Filed: February 20, 2015
                                 ____________

Before LOKEN, BRIGHT, and KELLY, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Fred Johnson shot his ex-girlfriend in the head, causing serious permanent
injuries. A South Dakota jury convicted him of first-degree attempted murder and
aggravated assault. The trial judge imposed consecutive sentences of twenty-five and
fifteen years for the two offenses. On direct appeal, the Supreme Court of South
Dakota rejected Johnson’s claim that imposing consecutive sentences for attempted
murder and aggravated assault based on the same act violated the Fifth Amendment’s
Double Jeopardy Clause, as applied to the States by the Fourteenth Amendment. State
v. Johnson, 739 N.W.2d 1, 5-8 (S.D. 2007). After exhausting state postconviction
remedies, Johnson petitioned for a federal writ of habeas corpus. The district court1
dismissed the petition but granted a certificate of appealability on this double jeopardy
issue. We may grant federal habeas relief only if a state court judgment was “contrary
to, or involved an unreasonable application of, clearly established Federal law.” 28
U.S.C. § 2254(d). Applying this deferential standard, we affirm.

       The Double Jeopardy Clause protects a criminal defendant from “multiple
punishments for the same offense imposed in a single proceeding.” Jones v. Thomas,
491 U.S. 376, 381 (1989) (quotation omitted). The “question of what punishments are
constitutionally permissible is not different from the question of what punishments the
Legislative Branch intended to be imposed.” Albernaz v. United States, 450 U.S. 333,
344 (1981). Thus, when the issue is cumulative sentences imposed for multiple
offenses in a state court 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). “[W]hether a state
legislature intends cumulative punishment for two offenses is an issue of state law,
over which state courts have final authority.” Dodge v. Robinson, 625 F.3d 1014,
1018 (8th Cir. 2010) (citing Supreme Court cases).

       In reviewing Johnson’s double jeopardy claim on direct appeal, the Supreme
Court of South Dakota began by noting that “the Legislature may impose multiple
punishments for the same conduct without violating the Double Jeopardy Clause if it
clearly expresses its intent to do so,” and that the “true intent of the legislature is
ascertained primarily from the language of the statute.” Johnson, 739 N.W.2d at 6
(quotations omitted). The Court then determined that the statutes prohibiting

      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, adopting the Report and Recommendation of the Honorable
John E. Simko, United States Magistrate Judge for the District of South Dakota.

                                          -2-
aggravated assault, first degree murder, and criminal attempt did “not expressly
preclude or authorize cumulative punishments,” and therefore “the legislative intent
is uncertain.” Id. at 7. “[W]hen legislative intent to impose multiple punishments
is uncertain,” the Court explained, “we employ the . . . analysis” from Blockburger v.
United States, 284 U.S. 299, 304 (1932); this “analysis is a rule of statutory
construction to help determine legislative intent.” Johnson, 739 N.W.2d at 7. “Under
Blockburger, the test to be applied to determine whether there are two separate
offenses . . . is whether each provision requires proof of an additional fact which the
other does not.” Id. Because “aggravated assault requires proof of the statutory
element of ‘serious bodily injury’ while attempted murder does not,” and attempted
murder requires proof of “a premeditated design to effect death,” while aggravated
assault does not, the Court concluded that consecutive sentences imposed for these
two offenses did not violate Johnson’s constitutional double jeopardy rights. Id.

        On appeal, Johnson argues that his consecutive sentences violate the Double
Jeopardy Clause because the South Dakota Supreme Court first stated that multiple
punishment may be imposed only if the Legislature “clearly expresses its intent to do
so,” and then concluded that legislative intent was “uncertain” on the face of the
statutes at issue. Johnson contends that this second determination should have ended
in his favor the Court’s inquiry into legislative intent. At the very least, he contends,
the Court should have invoked the rule of lenity and interpreted legislative silence as
demonstrating an intent not to impose cumulative punishments. Instead, the Court
impermissibly ignored its determination of legislative intent and employed the
Blockburger test as an independent ground for upholding multiple punishments.

      We agree that legislative intent, rather than a free-standing judicial application
of Blockburger, must be the touchstone of the multiple-punishment double jeopardy
analysis. See Hunter, 459 U.S. at 368-69. But here the South Dakota Supreme Court
explicitly stated that it used the Blockburger analysis as “a rule of statutory
construction to help determine legislative intent.” Johnson, 739 N.W.2d at 7

                                          -3-
(emphasis added). The Supreme Court of South Dakota’s use of Blockburger in this
manner was consistent with its prior decisions determining that, as a matter of South
Dakota law, the Legislature “clearly expresses its intent” that multiple punishments
may be imposed when it enacts statutes defining two separate criminal offenses, each
of which requires proof of at least one element the other does not. See State v.
Lafferty, 716 N.W.2d 782, 786 (S.D. 2006); State v. Dillon, 632 N.W.2d 37, 44-45
(S.D. 2001). This conclusion is hardly surprising, for it is precisely the analysis
applied by the Supreme Court of the United States in resolving a multiple punishments
issue under federal law in Albernaz, 450 U.S. at 336-38, and by the Iowa Court of
Appeals in Dodge, 625 F.3d at 1016.

      We are bound by this state court determination of state law. And having
determined legislative intent as a matter of state law, the Supreme Court of South
Dakota was not constitutionally obligated to apply the rule of lenity to reach a
contrary conclusion. See Albernaz, 450 U.S. at 342-43. Thus, as multiple punishment
double jeopardy protection turns on legislative intent, there was no Double Jeopardy
Clause violation. Dodge, 625 F.3d at 1018-19; see McCloud v. Deppisch, 409 F.3d
869, 876 (7th Cir.), cert. denied, 546 U.S. 1063 (2005).

      The judgment of the district court is affirmed.
                     ______________________________




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