                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0402p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                                                 -
 THOMAS WHITE,
                                                 -
                                Petitioner-Appellee,
                                                 -
                                                 -
                                                     No. 08-1458
          v.
                                                 ,
                                                  >
                                                 -
                      Respondent-Appellant. -
 CAROL R. HOWES,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
              No. 06-10707—Marianne O. Battani, District Judge.
                                    Submitted: June 19, 2009
                           Decided and Filed: November 20, 2009
                                                                                                *
     Before: McKEAGUE and WHITE, Circuit Judges; MARBLEY, District Judge.

                                      _________________

                                           COUNSEL
ON BRIEF: Brad H. Beaver, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. C. Mark Pickrell, WALLER LANSDEN DORTCH
& DAVIS, LLP, Nashville, Tennessee, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        WHITE, Circuit Judge. Respondent Carol Howes, Warden of the correctional
facility at which Petitioner Thomas White is serving Michigan state court sentences,
appeals from the district court’s order granting habeas relief. We reverse.




        *
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                  1
No. 08-1458        White v. Howes                                                  Page 2


                                            I

       This court reviews de novo a district court’s decision to grant a writ of habeas
corpus, as well as the court’s legal conclusions. Ruimveld v. Birkett, 404 F.3d 1006,
1010 (6th Cir. 2005); Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir. 2004).

       Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus unless it finds
that the state court’s decision (1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law. . .” or (2) “was based on an unreasonable
determination of the facts. . . .” Armstrong, 372 F.3d at 781, quoting 28 U.S.C.
§ 2254(d)(1). Only the first clause is at issue here.

                                            II

       The district court’s Opinion and Order granting in part Petitioner’s Petition for
Writ of Habeas Corpus sets forth the underlying facts and procedural history:

               * * * Petitioner was convicted of (1) felon-in-possession
               of a firearm, MICH. COMP. LAWS § 750.224F, (2) carrying
               a concealed weapon (“CCW”), MICH. COMP. LAWS
               § 750.227, and (3) possession of a firearm during the
               commission of a felony-second offense, MICH. COMP.
               LAWS § 750.227B, in the Oakland County, Michigan,
               Circuit Court. On February 15, 2005, Petitioner pleaded
               guilty to the above-stated charges, in addition to the
               charge of driving while license suspended. Petitioner
               also pleaded guilty to being a habitual offender–fourth
               offense.
                                         ***
                        In his pleadings, Petitioner challenges his
               convictions for both felon-in-possession of a firearm and
               felony-firearm. . . .

               II. Statement of Facts
                       Petitioner’s convictions arise from a traffic stop in
               the city of Troy, Michigan. After stopping Petitioner for
               speeding, the police officers conducted a LEIN check,
               which showed that Petitioner’s driver’s license was
               suspended. Petitioner was placed under arrest for driving
No. 08-1458       White v. Howes                                            Page 3


              with a suspended license. The police then searched
              Petitioner’s car and found a loaded shotgun and a loaded
              handgun in the trunk.
                                         ***
                      On March 2, 2005, the trial judge sentenced
              Petitioner to the five years on the felony-firearm-second
              offense, to run consecutive to the convictions of felon-in-
              possession, CCW, and driving while license suspended.
              The trial court then imposed a fourteen-months-to-twenty
              year term of imprisonment on the felon-in-possession and
              carrying a concealed weapon convictions, with ninety-
              five (95) days credit as time served for the remaining
              conviction. The felon-in-possession, CCW, and driving-
              while-license-suspended sentences were to run concurrent
              to each other and consecutive to the felony-firearm-
              second-count sentence.

                     Following sentencing, Petitioner filed a delayed
              application for leave to appeal with the Michigan Court
              of Appeals asserting the following:
                     I.     [Petitioner’s] sentence for carrying
                     a concealed weapon cannot be
                     consecutive to the sentence for felony-
                     firearm.
                     II.     [Petitioner’s] convictions of both
                     felon-in-possession of a firearm and
                     felony-firearm violate double jeopardy.
                      On August 29, 2005, the Michigan Court of
              Appeals agreed with Petitioner’s first claim, and
              remanded the case for a correction of Petitioner’s
              sentences, but denied the application for leave to appeal
              in all other respects. . . . People v. Thomas Clifford
              White, No. 263988 (Mich. Ct. App. Aug. 29, 2005).
                      Subsequently, Petitioner filed an application for
              leave to appeal to the Michigan Supreme Court, raising
              claim II from the Michigan Court of Appeals’ direct
              appeal, and adding an additional claim regarding the
              ineffective assistance of counsel[.]
                                         ***
                      The Michigan Supreme Court denied the
              application because “we are not persuaded that the
              questions presented should be reviewed by this Court.”
No. 08-1458       White v. Howes                                            Page 4


              People v. Thomas Clifford White, 474 Mich. 1020, 708
              N.W.2d 386 (2006) (Cavanagh and Kelly, JJ., would
              grant leave to appeal). Petitioner has not filed a motion
              for relief from judgment under M.C.R. 6.500 et. seq. [sic]

                     Petitioner filed the present habeas petition, on
              February 17, 2006, raising the same claims as raised in
              the Michigan Supreme Court. (Docket # 1.) . . . .
                                          A
      The district court analyzed the Double Jeopardy issue as follows:
             b) Multiple Punishments for an Offense

                      The doctrine regarding the Double Jeopardy
              Clause draws a crucial distinction between multiple
              punishments for the same conduct (permissible) and
              multiple punishments for the same offense
              (impermissible). While the issue can be confusing, it is
              clear to this Court that a conviction under both the felon
              in possession statute and the felony firearm statute
              constitutes multiple punishment for the same offense, and
              is therefore in violation of the Double Jeopardy Clause.
                      It is well established that the Double Jeopardy
              Clause does not prohibit a state from defining conduct to
              constitute two separate criminal offenses. Missouri v.
              Hunter, 459 U.S. 359, 368-69 (1983) (finding that when
              “a legislature specifically authorizes cumulative
              punishments under two statutes, . . . a court’s task of
              statutory construction is at an end and the prosecutor may
              seek and the trial court or jury may impose cumulative
              punishments under such statutes in a single trial”). . . .
                      In the case at hand, the Michigan Supreme Court,
              applying the expressio unis est exclusio alterius [sic]
              canon of construction to the language of the statute, has
              concluded that “the 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.”
              People v. Mitchell, 575 N.W.2d 283, 285 (1998). . . .
              However, a focus on legislative intent is misguided, as
              this case does not involve multiple convictions arising out
              of the same “conduct,” Hunter, 459 U.S. at 368, but
No. 08-1458       White v. Howes                                                 Page 5


              instead involves multiple punishments on a single
              offense.
              The felon in possession statute states, in pertinent part, that:
                      “(1) Except as provided in subsection
                      (2), a person convicted of a felony shall
                      not possess, use, transport, sell, purchase,
                      carry, ship, receive, or distribute a firearm
                      in this state [unless certain circumstances
                      are met].”        MICH. COMP. LAWS
                      § 750.224f.
              The felony-firearm statute states, in pertinent part, that:
                      “A person who carries or has in his or her
                      possession a firearm when he or she
                      commits or attempts to commit a felony,
                      except a violation of section 223
                      [unlawful sale of a firearm], section 227
                      [carrying a concealed weapon], 227a
                      [unlawful possession by licensee] or 230
                      [alteration of identifying marks on a
                      weapon], is guilty of a felony.” MICH.
                      COMP. LAWS § 750.227b(1).

                      Under § 750.224f, Petitioner was found guilty
              because (1) he was a felon (2) in possession of a firearm.
              Under § 750.227b, Petitioner was found guilty because he
              was (1) a person in possession of a firearm (2) while
              committing a felony (the felony being the same
              § 750.224f).        After substituting the elements of
              § 750.224f, we find that Petitioner was convicted under
              § 750.227b for being (1) a person in possession of a
              firearm (2) while he was a felon (3) in possession of a
              firearm. Considering that (3) is redundant, this is exactly
              the same charge as § 750.224f. Therefore, anyone
              convicted of “felon in possession” is always guilty of
              felony-firearm. This is double punishment at its most
              basic, as it constitutes multiple punishments for the same
              offense. Pearce, 395 U.S. at 717; Ohio v. Johnson, 467
              U.S. 493, 500 (1984) (holding that the double jeopardy
              clause protects against “cumulative punishments for
              convictions on the same offense”).
                     Federal court rulings upholding multiple
              convictions have involved convictions for felony
No. 08-1458        White v. Howes                                                   Page 6


               predicate crimes (such as felony murder) and their
               underlying felonies. See Hunter, (finding that double
               jeopardy does not prohibit a conviction of Missouri’s
               “felony with a deadly weapon” statute and the underlying
               felony of armed robbery); Brimmage v. Summer, 793 F.2d
               1014, 1015 (9th Cir. 1986) (finding that double jeopardy
               does not prohibit a conviction of both felony murder and
               the underlying felony or robbery). . . . The case at hand,
               however, does not involve multiple crimes arising out of
               a single act, but rather a double prosecution of the same
               offense. That is, the conviction of felon in possession and
               felony firearm is not the logical equivalent of a
               conviction of robbery and felony murder–it is the logical
               equivalent of a conviction of murder and felony murder.
               Such a conviction would be entirely circular and would
               constitute convicting the defendant of the same crime
               twice in violation of the Double Jeopardy Clause. See
               United States v. Wilson, 420 U.S. 332, 339 (1975)
               (holding that the underlying premise of double jeopardy
               was “that a defendant should not be twice tried or
               punished for the same offense”). The facts in the case at
               hand are distinguishable from the Hunter/Whalen line of
               cases, as this case involves multiple punishment of the
               same offense, rather than the same conduct.

                                            B

       The issue is clearly drawn. The district court acknowledged the Supreme Court’s
holding in Missouri v. Hunter, 459 U.S. 359, 368-69 (1983), that where “a legislature
specifically authorizes cumulative punishment under two statutes, . . . a court’s task of
statutory construction is at an end and the prosecutor may seek and the trial court or jury
may impose cumulative punishments under such statutes in a single trial.” The Hunter
Court further stated:

       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.
                                       ***
No. 08-1458               White v. Howes                                                           Page 7


          [] simply because two criminal statutes may be construed to proscribe the
          same conduct under the Blockburger[1] test does not mean that the
          Double Jeopardy Clause precludes the imposition, in a single trial, of
          cumulative punishments pursuant to those statutes. . . .

[Hunter, 459 U.S. at 365-66, 368.] The district court also accurately observed that the
Michigan Supreme Court’s decision in People v. Mitchell, 575 N.W.2d 283 (1998), is
a clear determination by that court that the Michigan Legislature intended to include
felon-in-possession as a predicate felony for purposes of the felony-firearm statute.2 The
district court further recognized that the Michigan Supreme Court’s determination in
Mitchell is binding on a federal habeas court. See Banner v. Davis, 886 F.2d 777, 780
(noting that “once a state court has determined that the state legislature intended
cumulative punishments, a federal habeas court must defer to that determination”).

          The district court continued its inquiry beyond this point, concluding that because
the two statutes do not simply punish the same conduct, but the same exact offense, a
“focus on legislative intent is misguided,” and the Michigan court’s denial of relief
constituted an unreasonable application of federal law. In support of the district court’s
conclusion, White argues that this court must reconcile two different lines of Supreme
Court cases – the Blockburger/Pearce3 line of cases that recognize that a person may not
receive multiple punishments for the same offense, and the Whalen/Hunter4 line of cases
that appear “on the surface to limit Blockburger and Pearce by transmogrifying the
Blockburger test into a rule of mere statutory construction.” [Appellee Br. p. 9.] White


          1
           Blockburger v. United States, 284 U.S. 299 (1932). Under Blockburger, “The test to be applied
to determine whether there are two offenses or only one [and thus whether multiple punishments are
permissible under the double jeopardy clause of the fifth amendment], is whether each provision requires
proof of a fact which the other does not.” Id. at 304.
          2
          Mitchell addressed the double jeopardy issue in the context of dual convictions of receiving or
concealing a stolen firearm or ammunition and felony-firearm. The court’s analysis focused on what it
determined to be a clear statement of legislature intent to except only the four enumerated felonies from
serving as predicate felonies for the felony-firearm charge. The court’s decision in Mitchell squarely
addresses the controlling issue of legislative intent here. The Michigan Court of Appeals found Mitchell
controlling with respect to the convictions at issue here in People v. Dillard, 631 N.W.2d 755 (2001).
          3
              Blockburger v. United States, 284 U.S. 299 (1932), and North Carolina v. Pearce, 395 U.S. 711
(1969).
          4
              Whalen v. United States, 445 U.S. 684 (1980), and Missouri v. Hunter, 459 U.S. 359 (1983).
No. 08-1458            White v. Howes                                                             Page 8


argues that “the Supreme Court’s decisional language in Whalen and Hunter is
[in]applicable in a situation in which two separate statutes, with separate penalties, each
define the same criminal offense.” [Appellee Br. p. 10.]

         The question then is whether the Michigan Legislature can constitutionally
provide that a felon who possesses a firearm shall be convicted of and punished for
violating two criminal statutes: felon in possession of a firearm, and possession of a
firearm while being a felon in possession of a firearm. We have no quarrel with the
district court’s determination that this case presents a rather unusual circumstance in that
the two offenses are really the same offense (one cannot commit felon in possession of
a firearm without simultaneously violating the felony-firearm statute), but the highest
state court has found a legislative intent to punish under both statutes.5 Nevertheless,
White has cited no cases, and we have found none,6 where a state legislature was found
to have violated the double jeopardy bar against multiple punishment by imposing
multiple punishment for the same offense.7


         5
           Most similar situations end with a judicial determination that the legislature did not intend to
authorize multiple punishment. For example, in Ball v. United States, 470 U.S. 856 (1985), the Supreme
Court determined that Congress did not intend that a felon possessing a firearm be convicted under
18 U.S.C. § 922(h)(1), for receiving that firearm, and also under 18 U.S.C. § 1202(a)(1) for possessing the
same weapon. Similarly, in Whalen, 445 U.S. 684 (1980), the Supreme Court held that Congress did not
intend to authorize multiple punishments for killing in the course of a rape and rape.
         6
            The cases cited by the district court do not address the issue either. See North Carolina v.
Pearce, 395 U.S. 711, 723 (1969) (holding that neither the Double Jeopardy Clause nor the Equal
Protection Clause imposes an absolute bar to a more severe sentence upon reconviction, thus affirming
defendant’s higher sentence on being reconvicted, after he had been tried and convicted, appealed, and
won a new trial); Ohio v. Johnson, 467 U.S. 493, 499, 500-502 (1984) (where multiple charges were
brought in a single indictment, holding that permitting the State to pursue the greater charges of murder
and aggravated robbery, even after defendant pleaded guilty to the lesser charges of manslaughter and
theft, did not implicate the Double Jeopardy Clause, and noting “[b]ecause the substantive power to
prescribe crimes and determine punishments is vested with the legislature, the question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent,” citing
Missouri v. Hunter); Schiro v. Farley, 510 U.S. 222, 229-30 (1994) (holding that an initial sentencing
proceeding is not a successive prosecution and does not violate the Double Jeopardy Clause where
defendant argued he could not be sentenced to death based on the intentional murder aggravating
circumstance, because the sentencing proceeding amounted to a successive prosecution for intentional
murder); and United States v. Wilson, 420 U.S. 332 (1975) (discussing “the policies underlying the
[Double Jeopardy] Clause in order to determine more precisely the boundaries of the Government’s appeal
rights in criminal cases” and holding that the Clause does not bar a government appeal from a ruling in the
defendant’s favor after a guilty verdict).
         7
          Relying on Banner, this court has previously determined, in a Rule 34 case decided by
unpublished opinion without argument, that a defendant’s convictions of felon in possession of a firearm
and felony-firearm did not violate the prohibition against double jeopardy. Rodgers v. Bock, 49 F. App’x
596 (2002).
No. 08-1458        White v. Howes                                                     Page 9


       In Banner, 886 F.2d at 780-81, this court addressed the question whether the
Tennessee offenses of aggravated assault, in violation of Tenn. Code § 39-2-101, and
shooting into an occupied dwelling, in violation of Tenn. Code § 39-2-115, are the same
offense for double jeopardy purposes. Like the district court in the instant case, we
recognized that:

       Whether punishments are multiple under the double jeopardy clause is
       essentially a question of legislative intent. Id. [Ohio v Johnson, 467 U.S.
       493] at 499, 104 S. Ct. at 2540; Missouri v. Hunter, 459 U.S. 359, 366-
       68, 103 S. Ct. 673, 678-79, 74 L. Ed. 2d 535 (1983).
               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. See
       Missouri v. Hunter, 459 U.S. at 368, 103 S. Ct. at 679; O’Brien v.
       Skinner, 414 U.S. 524, 531, 94 S. Ct. 740, 744, 38 L. Ed. 2d 702 (1974).
       Under the double jeopardy clause, when evaluating whether a state
       legislature intended to prescribe cumulative punishments for a single
       criminal incident, a federal court is bound by a state court’s
       determination of the legislature’s intent. See Ohio v. Johnson, 467 U.S.
       at 499, 104 S. Ct. at 2541. . . . .
              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. See
       Smith v. Sowders, [848 F.2d 735 (6th Cir. 1988)], (Kentucky Court of
       Appeals determination binding); Hall v. Wainwright, [493 F.2d 37 (5th
       Cir. 1974)].

[Banner, 886 F.2d at 780.] Banner had urged this court to apply the Blockburger test to
determine whether the two offenses are one for double jeopardy purposes. The court
declined to do so, noting the Supreme Court’s statement in Ohio v Johnson, 467 U.S. at
493, n.8:

               It should be evident from our decision in Missouri v. Hunter,
       however, the Blockburger test does not necessarily control the inquiry
       into the intent of a state legislature. Even if the crimes are the same
       under Blockburger, if it is evident that a state legislature intended to
       authorize cumulative punishments, a court’s inquiry is at an end.
No. 08-1458        White v. Howes                                                 Page 10


[Banner, 886 F.2d at 780-81.] Nevertheless, the Banner panel continued its inquiry in
light of this court’s en banc decision in Pryor v. Rose, 724 F.2d 525 (6th Cir. 1984),
explaining:

       In Pryor, a habeas case involving the question of multiple punishments,
       our en banc court independently interpreted the scope of Tennessee
       criminal statutes for purposes of double jeopardy analysis. While
       indicating that the views of the Tennessee Supreme Court on the double
       jeopardy issue were entitled to consideration, id. at 530, relying upon
       Whalen v. United States, 445 U.S. 684, 692, 100 S. Ct. 1432, 1438, 63 L.
       Ed. 2d 715 (1980), and its application of Blockburger, we held that
       multiple punishment was forbidden under the double jeopardy clause. In
       evaluating Pryor’s claim and holding that the Tennessee legislature did
       not intend cumulative punishments, we stated: “We therefore hold that
       the Tennessee legislature has not clearly indicated that consecutive
       sentences are proper in the situation presented by this case.” 724 F.2d
       at 531 (emphasis supplied). Analysis in prior Tennessee cases, we held,
       was “wholly unacceptable under Whalen, which requires that the
       legislature ‘clearly indicate’ that consecutive sentences are permissible
       for offenses which are the same under the Blockburger test.” Id.
               Thus, in evaluating Banner’s claim in light of Blockburger, there
       is a tension between: (1) adherence to the multiple punishment
       determination made by the Tennessee Court of Criminal Appeals and
       Tennessee Supreme Court and (2) application of the Blockburger test
       (which is used as a gauge for determining legislative intent) as it was
       interpreted in Whalen and applied in Pryor. This ambiguity is underlined
       by the Supreme Court’s statement in Ohio v. Johnson that “The
       Blockburger test does not necessarily control the inquiry into the intent
       of a state legislature.” 467 U.S. at 493 n.8, 104 S. Ct. at 2541 n.8
       (emphasis supplied). To resolve this tension, we must determine whether
       a state court judgment must establish that the state legislature clearly
       intended cumulative punishment before a federal court is bound by that
       determination for purposes of double jeopardy analysis, as is apparently
       indicated by Pryor.
[Banner, 886 F.2d at 781.] The Banner panel discussed its uncertainty over the scope
of Blockburger, id. at 782, distinguished Pryor as “limited to a narrow situation in which
the state courts below had failed to give a clear expression on the issue of cumulative
punishment,” id., and ultimately concluded that because the Tennessee courts had
No. 08-1458            White v. Howes                                                            Page 11


already held that the Tennessee Legislature intended cumulative punishments, further
analysis under Blockburger would be improper.8

        In the instant case, although we agree with the district court that the two statutes
at issue here punish the same offense under Blockburger, we can find no basis upon
which to make the distinction drawn by the court in granting the habeas petition. While
this may be the case that prompts the Supreme Court to refine its analysis, the Court has
never held or intimated that the constitutional bar against double jeopardy circumscribes
the legislative prerogative to define crimes and prescribe punishment in the context of
a single prosecution.         While no case is directly on point in upholding multiple
punishments under two statutes that define the same offense as these do here, the
Supreme Court has repeatedly described the third aspect of the Double Jeopardy Clause
– the protection against multiple punishments for the same offense imposed in a single
proceeding – as protecting only against the imposition of punishment in excess of that
authorized by the legislature.9



        8
         The court concluded:
        Contrary to Banner’s assertion, then, we may not use the Blockburger test-a rule of
        statutory construction for federal statutes-to independently evaluate the scope of the
        Tennessee statutes here, the Tennessee Court of Criminal Appeals and Supreme Court
        having already held that the legislature intended cumulative punishments. Accordingly,
        Banner has not been assessed cumulative punishments in violation of the double
        jeopardy clause.
        9
            In Jones v Thomas, 491 U.S. 376 (1989), the Supreme Court explained:
  Our cases establish that in the multiple punishments context, that interest is “limited to
  ensuring that the total punishment did not exceed that authorized by the legislature.” United
  States v. Halper, 490 U.S. 435, 450, 109 S. Ct. 1892, 1903, 104 L. Ed.2d 487 (1989); see
  Johnson, supra, 467 U.S. at 499, 104 S. Ct., at 2540; Missouri v. Hunter, 459 U.S. 359, 366-
  367, 103 S. Ct. 673, 678-679, 74 L. Ed.2d 535 (1983). The purpose is to ensure that
  sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed
  by the legislative branch of government, in which lies the substantive power to define crimes
  and prescribe punishments. See, e.g., Johnson, supra, 467 U.S. at 499, 104 S. Ct., at 2540.
  In this case, respondent's conviction of both felony murder and attempted robbery gave rise
  to a double jeopardy claim only because the Missouri Legislature did not intend to allow
  conviction and punishment for both felony murder and the underlying felony. E.g., Hunter,
  supra, 459 U.S. at 368, 103 S. Ct., at 679; see also Morgan, supra, 612 S.W.2d, at 1; Olds,
  supra, 603 S.W.2d, at 510 (construing Missouri statute).
            Given that, in its application to the case before us, “the Double Jeopardy Clause does
  no more than prevent the sentencing court from prescribing greater punishment than the
  legislature intended,” Hunter, supra, 459 U.S. at 366, 103 S. Ct., at 678, the state-court
  remedy [vacating the attempted-robbery conviction and sentence and giving credit against the
  felony-murder sentence] fully vindicated respondent’s double jeopardy rights.
No. 08-1458            White v. Howes                                                                Page 12


         Indeed, in the face of repeated assertions of this principle in majority opinions
of the Supreme Court, only Justice Marshall (joined by Justice Stevens, in Missouri v.
Hunter, 459 U.S. at 369-71), and Justice Stewart (joined by Justices Marshall and
Stevens, in Albernaz, 450 U.S. at 344), have expressed the view that the
multiple-punishment           aspect      of     the         Double    Jeopardy       Clause      limits      a
                                                                                                         10
legislature’s      power       to    define      offenses        and    prescribe       punishment.

         10
            In Missouri v. Hunter, the Missouri Supreme Court had repeatedly interpreted the Blockburger
test as precluding convictions of armed criminal action and armed robbery based on the same conduct,
notwithstanding that the Missouri legislature had expressed its clear intent that a defendant should be
subject to conviction and sentence under both statutes. The Missouri Supreme Court had stated:
                  “Until such time as the Supreme Court of the United States declares
                  clearly and unequivocally that the Double Jeopardy Clause of the
                  Fifth Amendment of the United States Constitution does not apply to
                  the legislative branch of government, we cannot do other than what
                  we perceive to be our duty to refuse to enforce multiple punishments
                  for the same offense arising out of a single transaction.” 619 S.W.2d,
                  at 51.
[Hunter, 459 U.S. at 364-65.] The Hunter majority responded:
         This view manifests a misreading of our cases on the meaning of the Double Jeopardy
         Clause of the Fifth Amendment; we need hardly go so far as suggested to decide that a
         legislature constitutionally can prescribe cumulative punishments for violation of its
         first-degree robbery statute and its armed criminal action statute.
                                                       III
         * * * Particularly in light of recent precedents of this Court, it is clear that the Missouri
         Supreme Court has misperceived the nature of the Double Jeopardy Clause’s protection
         against multiple punishments. 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.
                   In Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed.2d 715
         (1980), we addressed the question whether cumulative punishments for the offenses of
         rape and of killing the same victim in the perpetration of the crime of rape was contrary
         to federal statutory and constitutional law. A divided Court relied on Blockburger v.
         United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), in holding that the two
         statutes in controversy proscribed the “same” offense. . . . .
                  In Whalen we also noted that Blockburger established a rule of statutory
         construction in these terms:
                  The assumption underlying the rule is that Congress ordinarily does
                  not intend to punish the same offense under two different statutes.
                  Accordingly, where two statutory provisions proscribe the ‘same
                  offense,’ they are construed not to authorize cumulative punishments
                  in the absence of a clear indication of contrary legislative intent.”
                  445 U.S., at 691-692, 100 S. Ct., at 1437-1438 (emphasis added).
         We went on to emphasize the qualification on that rule:
                  “[W]here the offenses are the same ... cumulative sentences are not
                  permitted, unless elsewhere specially authorized by Congress.” Id.,
                  at 693, 100 S. Ct., at 1438 (emphasis added).
No. 08-1458           White v. Howes                                                              Page 13




                It is clear, therefore, that the result in Whalen turned on the fact that the Court
        saw no “clear indication of contrary legislative intent.” . . . .
                   In Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed.2d 275
        (1981), we addressed the issue whether a defendant could be cumulatively punished in
        a single trial for conspiracy to import marihuana and conspiracy to distribute marihuana.
        There, in contrast to Whalen, we concluded that the two statutes did not proscribe the
        “same” offense in the sense that “‘each provision requires proof of a fact [that] the other
        does not.’” 450 U.S. 339, 101 S. Ct. at 1142, quoting Blockburger, supra, 284 U.S., at
        304, 52 S. Ct., at 182. We might well have stopped at that point and upheld the
        petitioners' cumulative punishments under the challenged statutes since cumulative
        punishment can presumptively be assessed after conviction for two offenses that are not
        the “same” under Blockburger. See, e.g., American Tobacco Co. v. United States, 328
        U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946). However, we went on to state that
        because:
                   “[t]he Blockburger test is a ‘rule of statutory construction,’ and
                   because it serves as a means of discerning congressional purpose the
                   rule should not be controlling where, for example, there is a clear
                   indication of contrary legislative intent.” Albernaz v. United States,
                   supra, 450 U.S., at 340, 101 S. Ct., at 1143 (emphasis added).
        We found “[n]othing ... in the legislative history which ... discloses an intent contrary
        to the presumption which should be accorded to these statutes after application of the
        Blockburger test.” Ibid. We concluded our discussion of the impact of clear legislative
        intent on the Whalen rule of statutory construction with this language:
                 [T]he question of what punishments are constitutionally permissible
                 is no different from the question of what punishment the Legislative
                 Branch intended to be imposed. Where Congress intended, as it did
                 here, to impose multiple punishments, imposition of such sentences
                 does not violate the Constitution.” Id., at 344, 101 S. Ct., at 1145
                 (emphasis added) (footnote omitted).
                  Here, the Missouri Supreme Court has construed the two statutes at issue as
        defining the same crime. In addition, the Missouri Supreme Court has recognized that
        the legislature intended that punishment for violations of the statutes be cumulative. We
        are bound to accept the Missouri court's construction of that State’s statutes. See
        O’Brien v. Skinner, 414 U.S. 524, 531, 94 S. Ct. 740, 743, 38 L. Ed.2d 702 (1974).
        However, we are not bound by the Missouri Supreme Court's legal conclusion that these
        two statutes violate the Double Jeopardy Clause, and we reject its legal conclusion.
                  Our analysis and reasoning in Whalen and Albernaz lead inescapably to the
        conclusion that simply because two criminal statutes may be construed to proscribe the
        same conduct under the Blockburger test does not mean that the Double Jeopardy
        Clause precludes the imposition, in a single trial, of cumulative punishments pursuant
        to those statutes. The rule of statutory construction noted in Whalen is not a
        constitutional rule requiring courts to negate clearly expressed legislative intent. Thus
        far, we have utilized that rule only to limit a federal court's power to impose convictions
        and punishments when the will of Congress is not clear. Here, the Missouri Legislature
        has made its intent crystal clear. Legislatures, not courts, prescribe the scope of
        punishments.
[Hunter, 459 U.S. at 365-68.] Justice Marshall, in dissent, responded:
        * * * For the reasons stated below, I do not believe that the phrase “the same offence”
        should be interpreted to mean one thing for purposes of the prohibition against multiple
        prosecutions and something else for purposes of the prohibition against multiple
        punishment.
                 First-degree robbery and armed criminal action constitute the same offense
        under the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
No. 08-1458            White v. Howes                                                              Page 14


More recently, Justice Scalia has expressed the view that the prohibition against multiple
punishment is not “a free-standing constitutional prohibition implicit in the Double
Jeopardy Clause,” but rather, “an aspect of the Due Process Clause requirement of
legislative authorization.” Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767,
798 (1994) (Scalia, J., dissenting, joined by Thomas, J.); Hudson v. United States, 522
U.S. 93, 106 (1997) (Scalia, J., concurring, joined by Thomas, J.). Neither Justice
Marshall’s nor Justice Scalia’s view has been adopted by a majority of the Court. The
current jurisprudence allows for multiple punishment for the same offense provided the
legislature has clearly indicated its intent to so provide, and recognizes no exception for
necessarily included, or overlapping offenses.

         We therefore REVERSE.




         180, 182, 76 L. Ed. 306 (1932). To punish respondent for first-degree robbery, the State
         was not required to prove a single fact in addition to what it had to prove to punish him
         for armed criminal action. The punishment imposed for first-degree robbery was not
         predicated upon proof of any act, state of mind, or result different from that required to
         establish armed criminal action. Respondent was thus punished twice for the elements
         of first-degree robbery: once when he was convicted and sentenced for that crime, and
         again when he was convicted and sentenced for armed criminal action.
                   A State has wide latitude to define crimes and to prescribe the punishment for
         a given crime. For example, a State is free to prescribe two different punishments (e.g.,
         a fine and a prison term) for a single offense. But the Constitution does not permit a
         State to punish as two crimes conduct that constitutes only one “offence” within the
         meaning of the Double Jeopardy Clause. For whenever a person is subjected to the risk
         that he will be convicted of a crime under state law, he is “put in jeopardy of life or
         limb.” If the prohibition against being “twice put in jeopardy for “the same offence is
         to have any real meaning, a State cannot be allowed to convict a defendant two, three,
         or more times simply by enacting separate statutory provisions defining nominally
         distinct crimes. If the Double Jeopardy Clause imposed no restrictions on a legislature’s
         power to authorize multiple punishment, there would be no limit to the number of
         convictions that a State could obtain on the basis of the same act, state of mind, and
         result. A State would be free to create substantively identical crimes differing only in
         name, or to create a series of greater and lesser-included offenses, with the first crime
         a lesser-included offense of the second, the second a lesser-included offense of the third,
         and so on.
[Missouri v. Hunter, 459 U.S. at 369-71 (Marshall, J., dissenting, joined by Stevens, J.) footnotes omitted.]
