                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1044
                         ___________________________

                                Richard Litschewski

                        lllllllllllllllllllllPetitioner - Appellee

                                           v.

Robert Dooley, Warden; Marty J. Jackley, Attorney General of the State of South Dakota

                      lllllllllllllllllllllRespondents - Appellants
                                        ____________

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

                              Submitted: May 12, 2015
                                 Filed: July 9, 2015
                                  ____________

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
                             ____________

MURPHY, Circuit Judge.

      A jury found Richard Litschewski guilty of three child sex crimes in South
Dakota state court, and separate judgments of conviction were entered for each
offense. After Litschewski was sentenced to serve three consecutive terms of
imprisonment, the state supreme court reversed the sentences because the trial court
had not complied with a state law which required multiple sentences to be ordered
chronologically according to the time each offense was committed. On remand the
trial court rearranged the sentences in chronological order, and the state supreme
court affirmed. Litschewski then brought this 28 U.S.C. § 2254 action alleging that
his rearranged sentences imposed multiple punishments for the same offense in
violation of the double jeopardy clause of the United States Constitution. The district
court granted his petition and vacated one of his sentences. We reverse and remand.

       Litschewski was charged with three child sex crimes in 1997. The first count
of the indictment alleged that he had raped a child in 1991, the second count alleged
a 1989 rape, and the third count alleged sexual contact with a child in 1996. A jury
found Litschewski guilty of all three counts, and the trial court entered separate
judgments of conviction for each crime. The court ordered Litschewski to serve three
consecutive sentences: 7.5 years on count one, 12.5 years on count two, and 7.5 years
on count three, for a total 27.5 years of imprisonment. The state supreme court
affirmed the convictions on direct appeal.

       In 2009 Litschewski filed a collateral motion to correct his sentence, arguing
that S.D. Codified Laws § 22-6-6.1 (1997) required consecutive sentences be served
chronologically in the order that each offense had been committed. That meant that
a sentence for a prior in time offense should be served before a later one, and
Litschewski had been ordered to serve his sentence for the 1991 rape before his
sentence for a 1989 rape. The state supreme court agreed that there had been
sentencing error, and it reversed and remanded for resentencing in accordance with
§ 22-6-6.1.

       On remand the state trial court rearranged the sentences to be served in
chronological sequence, ordering that Litschewski serve 12.5 years on count two
before serving 7.5 years on count one. It credited all the time that Litschewski had
served on count one toward his sentences for the later offenses. This arrangement did
not increase the total term of his imprisonment. Litschewski then moved to modify

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his sentence, asserting that he had served his entire 7.5 year sentence on count one
before the court had rearranged his sentences in chronological order. In Litschewski's
view, the state court's order technically required him to serve his sentence on count
one a second time, even though the full 7.5 years he had served on that sentence had
been credited to his total period of incarceration. He argued that the rearrangement
violated the double jeopardy clause's protection against multiple punishments for the
same offense. The state trial court denied his motion, and the state supreme court
summarily affirmed.

       Then Litschewski filed an amended § 2254 petition in the district court,
alleging the same double jeopardy violation he had argued on his state court motion.
Acknowledging the absence of direct Supreme Court precedent, the district court
cited a dissenting opinion by Justice Scalia which stated that "The Double Jeopardy
Clause is and has always been, not a provision designed to assure reason and justice
in the particular case, but the embodiment of technical, prophylactic rules" that may
"release a criminal deserving of punishment" in a particular case "for the greater
purpose of assuring repose in the totality of criminal prosecutions and
sentences . . . . The State broke the rules here, and must abide by the result." Jones
v. Thomas, 491 U.S. 376, 396 (1989) (Scalia, J., dissenting).

       In ruling on Litschewski's petition, the district court concluded that even
though the state trial court had not increased his total term of imprisonment and had
credited the 7.5 years he had originally served on count one toward fulfilling his other
sentences, the state court order rearranging his sentences had technically required him
to serve his sentence on count one a second time in violation of the double jeopardy
clause's protection against multiple punishments for the same offense. The district
court granted Litschewski's habeas petition which had challenged his sentence on
count one. The state of South Dakota appeals.




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       We "review legal issues presented in a habeas petition de novo, but we review
any underlying factual findings for clear error." Nunley v. Bowersox, 784 F.3d 468,
471 (8th Cir. 2015). Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), "an application for a writ of habeas corpus may not be granted unless
the state court's decision was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States." Armstrong v. Hobbs, 698 F.3d 1063, 1065 (8th Cir. 2012) (citing 28 U.S.C.
§ 2254(d)(1)). A decision is contrary to federal law "if a state court has arrived at a
conclusion opposite to that reached by the Supreme Court on a question of law or if
it confronted facts that are materially indistinguishable from a relevant Supreme
Court precedent but arrived at an opposite result." Davis v. Norris, 423 F.3d 868, 874
(8th Cir. 2005) (internal quotation marks omitted). A state court "unreasonably
applies clearly established federal law when it identifies the correct governing legal
principle from the Supreme Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case." Id. (internal quotation marks omitted).

       Determining "whether a state court's decision resulted from an unreasonable
legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court's reasoning." Harrington v. Richter, 562 U.S. 86, 98
(2011). If a "state court's decision is unaccompanied by an explanation, the habeas
petitioner's burden still must be met by showing there was no reasonable basis for the
state court to deny relief." Id. The "question under AEDPA is not whether a federal
court believes the state court's determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold." Broom v.
Denney, 659 F.3d 658, 661 (8th Cir. 2011) (internal quotation marks omitted). A
"state court's determination that a claim lacks merit precludes federal habeas relief so
long as fairminded jurists could disagree on the correctness of the state court's
decision." Harrington, 562 U.S. at 101 (internal quotation marks omitted).




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       Litschewski argues that the state court violated the double jeopardy clause's
"protection against multiple punishments for the same offense" by rearranging his
sentences in chronological order, crediting the 7.5 years he had already served on
count one toward his sentence on count two, and ordering him to serve the sentence
on count one again after serving the earlier in time sentence on count two. United
States v. Abboud, 273 F.3d 763, 766 (8th Cir. 2001). Litschewski has not identified
any Supreme Court precedent that squarely addresses whether the double jeopardy
clause would bar a state court from rearranging the order in which a defendant must
serve the counts that make up a consecutive sentence after the defendant has fully
served one of those counts. He points out, however, that "the Constitution was
designed as much to prevent the criminal from being twice punished for the same
offence as from being twice tried for it," Ex parte Lange, 85 U.S. 163, 173 (1873), the
double jeopardy clause exists to "protect the integrity of a final judgment," United
States v. Scott, 437 U.S. 82, 92 (1978), and a defendant has an "expectation of
finality" in a sentence after all appeals have concluded and his sentence has been
served, see United States v. DiFrancesco, 449 U.S. 117, 136 (1980).1

        Evaluating "whether a rule application was unreasonable requires considering
the rule's specificity." Harrington, 562 U.S. at 101. The "more general the rule, the
more leeway courts have in reaching outcomes in case by case determinations." Id.
It "is not an unreasonable application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not been squarely established
by [the Supreme] Court.” Id. (internal citations omitted). The "high level of
generality" used by Litschewski to describe the Supreme Court precedent that he
claims was unreasonably applied by the state court, see Nevada v. Jackson, 133 S. Ct.

      1
        Litschewski also asserts that because he only appealed his sentence on count
two, the state trial court lacked authority to alter his sentence on count one. He has
however failed to cite any additional Supreme Court authority on this point. See
Renico v. Lett, 559 U.S. 766, 779 (2010); 28 U.S.C. § 2254(d)(1).


                                         -5-
1990, 1994 (2013), indicates that "fairminded jurists could disagree on the
correctness of the state court's decision," Harrington, 562 U.S. at 101.

       Furthermore, in "the multiple punishments context," the double jeopardy clause
"is limited to ensuring that the total punishment did not exceed that authorized by the
legislature." Jones v. Thomas, 491 U.S. 376, 381 (1989). In Jones, the Supreme
Court upheld a state court's alteration of a defendant's sentence after he was
improperly sentenced to serve terms of imprisonment for both felony murder and the
underlying felony of attempted robbery. Id. at 378, 387. After "it became apparent
that two consecutive sentences had been imposed where state law permitted but one,"
the state "court vacated the attempted robbery conviction and sentence and credited
the time that respondent had served under that conviction against the remaining
sentence for felony murder," even though the defendant had already served his
sentence for attempted robbery. Id. at 378, 382. The Supreme Court concluded that
the altered sentence had not violated the "double jeopardy prohibition against
multiple punishments" because the defendant was still serving a sentence that had
been authorized by the legislature. Id. at 380–82, 382 n.2.

        Litschewski does not dispute that the state court was permitted by statute to
impose a 7.5 year sentence on count one, a 12.5 year sentence on count two, and a 7.5
year sentence on count three for a total term of 27.5 consecutive years imprisonment.
A fairminded jurist could conclude that the state court's chronological rearrangement
of the three sentences did not impose a "total punishment" exceeding "that authorized
by the legislature," but rather corrected a clerical error by the sentencing court. See
Jones, 491 U.S. at 381–82. The "Constitution does not require that sentencing should
be a game in which a wrong move by the judge means immunity for the prisoner" and
"neither the Double Jeopardy Clause nor any other constitutional provision exists to
provide unjustified windfalls" to defendants. Id. at 387 (internal quotations omitted).
Given that the state court here, as in Jones, credited Litschewski for time served and
imposed terms of imprisonment that had been authorized by the legislature, we

                                         -6-
conclude that Supreme Court precedent provides a "reasonable basis" for fairminded
jurists to disagree on the correctness of the state court's chronological rearrangement
of Litschewski's sentence. Harrington, 562 U.S. at 98, 101.

       For these reasons we reverse the judgment of the district court and remand for
entry of judgment denying Litschewski's amended petition under § 2254.
                       ______________________________




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