                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-2765
                                     ___________

Jeffrey Robert Kissner,               *
                                      *
           Plaintiff-Appellant,       *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of Minnesota.
Minnesota Department of Corrections, *
                                      *      [UNPUBLISHED]
           Defendant-Appellee.        *
                                 ___________

                              Submitted: October 20, 1999

                                   Filed: December 21, 1999
                                    ___________

Before WOLLMAN, Chief Judge, LAY, and LOKEN, Circuit Judges.
                             ___________

PER CURIAM.

      Jeffrey Robert Kissner (Kissner) was convicted by a jury of three counts of
criminal vehicular homicide and one count of criminal vehicular operation resulting in
substantial bodily harm under Minnesota Statute § 609.21, subds. 1 and 2(a) (1998).1


      1
        He was also found guilty of four misdemeanors: (1) careless driving in violation
of Minnesota Statute § 169.13, subd. 2 (1998); (2) driving with an open bottle in
violation of Minnesota Statute § 169.122, subd. 2 (1998); (3) driving without a seat belt
in violation of Minnesota Statute § 169.686, subd. 1 (1998); and (4) transporting a child
without a proper restraint in violation of Minnesota Statute § 169.685, subds. 5(a) and
He was sentenced to concurrent prison sentences of nineteen, fifty-eight, seventy-eight,
and eighty-eight months for the felonies. The district court2 denied his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus, and, on appeal, he claims insufficiency of
the evidence and a double jeopardy violation arising from the concurrent sentences.

       The standard of review in habeas cases is normally a deferential one, as dictated
by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d)(1)-(2) (Supp. 1999) (AEDPA). While Kissner urged this court to review the
lower court’s holding under the pre-AEDPA de novo standard of review, he recognized
during oral argument that Long v. Humphrey, 184 F.3d 758 (8th Cir. 1999), articulates
this court’s standard for post-AEDPA cases.3 Applying the standard of review dictated
by the AEDPA and Long, we find the evidence sufficient to uphold the conviction.

      Kissner also challenges his concurrent convictions as a violation of double
jeopardy, relying in part on Minnesota Statute § 609.035, subd. 1 (1998).4 As the


(b) (1998).
      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, presiding.
      3
       We adopted the Third Circuit’s approach of analyzing the state court’s decision
“objectively and on the merits” and asking whether the decision “resulted in an
outcome that cannot reasonably be justified under existing Supreme Court precedent”
when searching for an unreasonable application of federal law. Long, 184 F.3d at 760.
We note, however, that the Supreme Court has granted certiorari in a similar case,
Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998), cert. granted, 119 S. Ct. 1355 (April
5, 1999), to address this very issue.
      4
        In the state appellate court, Kissner argued that his concurrent sentences
violated Minnesota Statute § 609.035, subd. 1. Subdivision one provides in pertinent
part the following:

      [I]f a person’s conduct constitutes more than one offense under the laws
                                          -2-
Supreme Court has explained, “the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment than the legislature intended.”
Jones v. Thomas, 491 U.S. 376, 381 (1989) (citation omitted). The state appellate
court recognized that Minnesota Statute § 609.035 has a similar goal, which is “to
protect against exaggerating the criminality of a person’s conduct.” State v. Kissner,
541 N.W.2d 317, 322 (Minn. Ct. App. 1995) (citation omitted). Nonetheless, the state
court rejected Kissner’s double jeopardy claim, relying on the “multiple-victim
exception” to § 609.035. This exception, which complies with the aforementioned goal
of the statute, states that “a defendant who commits multiple offenses in a single
behavioral incident may be sentenced to one sentence per victim so long as the multiple
sentencing does not unfairly exaggerate the criminality of the defendant’s conduct.”
State v. Gartland, 330 N.W.2d 881, 883 (Minn. 1983). The exception was first
introduced in 1968 in State ex rel. Stangvik v. Tahash, 161 N.W.2d 667, 672 (Minn.
1968), and it has been implemented by Minnesota courts as recently as last year. See
State v. Lundberg, 575 N.W.2d 589 (Minn. Ct. App. 1998); State v. Whittaker, 568
N.W.2d 440 (Minn. 1997). Given the long history of the exception and the fact that
the legislature could negate the multiple-victim exception by passing contrary


      of this state, the person may be punished for only one of the offenses and
      a conviction or acquittal of any one of them is a bar to prosecution for any
      other of them. All the offenses, if prosecuted, shall be included in one
      prosecution which shall be stated in separate counts.

MINN. STAT. § 609.035(1) (1998).

       We note that a statutory violation claim is not the same as a double jeopardy
claim. This is important because, in his direct appeal, Kissner only argued that the
statute was violated. He did not bring his double jeopardy claim until his habeas
petition. Therefore, an argument exists that this issue is procedurally barred. However,
because this court specifically ordered the expansion of the certificate of appealability
to include the double jeopardy issue, and because the “exhaustion rule is not a rule of
jurisdiction,” we will analyze the claim. Padavich v. Thalacker, 162 F.3d 521, 522 (8th
Cir. 1998) (citation omitted).
                                           -3-
legislation, we may assume that lawmakers accept it. See Barclays Bank PLC v.
Franchise Tax Bd. of California, 512 U.S. 298, 324-27 (1994) (stating that Congress’
decision not to enact a bill barring the tax reporting method in question was evidence
that Congress was willing to tolerate it). Moreover, we find that the sentencing court
did not impose a punishment greater than that intended by the legislature. We,
therefore, hold the concurrent sentences do not violate the Double Jeopardy Clause.

      In conclusion, we affirm the district court on the issue of the sufficiency of the
evidence, and hold that Kissner’s convictions do not violate the Double Jeopardy
Clause. Judgment AFFIRMED.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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