                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


LEON STEVENSON,                          
                  Petitioner-Appellee,
                  v.
PHOEBE JOHNSON, Warden of Perry                  No. 01-7572
Correctional Institution; CHARLES M.
CONDON, Attorney General of the
State of South Carolina,
             Respondents-Appellants.
                                         
           Appeal from the United States District Court
         for the District of South Carolina, at Charleston.
                 C. Weston Houck, District Judge.
                         (CA-99-2779-2-06)

                       Argued: December 4, 2002

                       Decided: March 27, 2003

  Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.



Reversed and remanded by unpublished per curiam opinion.


                             COUNSEL

ARGUED: William Edgar Salter, III, OFFICE OF THE ATTOR-
NEY GENERAL, Columbia, South Carolina, for Appellants. Andrew
David Grimes, ANDREW D. GRIMES, P.A., Summerville, South
Carolina, for Appellee. ON BRIEF: Charles M. Condon, Attorney
General, John W. McIntosh, Chief Deputy Attorney General, Donald
2                          STEVENSON v. JOHNSON
J. Zelenka, Assistant Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Columbia, South Carolina, for Appellants.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                                OPINION

PER CURIAM:

   Phoebe Johnson, Warden of the Perry Correctional Institution,1
appeals from a district court’s award of relief to Leon Stevenson, a
South Carolina inmate, on his petition pursuant to 28 U.S.C.A. § 2254
(West 1994 & Supp. 2002). The district court granted relief on Ste-
venson’s claim of ineffective assistance of counsel, premised on his
trial counsel’s failure to raise a double jeopardy objection at trial.
Concluding that the district court erred, we reverse and remand with
instructions to dismiss the petition.

                                     I.

   On April 4, 1993, police officers Munoz and Steadman responded
to a report of a domestic violence incident in Spartanburg County,
South Carolina, involving Stevenson and his wife. Arriving at the
scene, it appeared to Munoz that Stevenson’s wife had been struck
near her left eye. Munoz asked her what had happened, and she
responded that Stevenson had hit her. Munoz and Steadman then
attempted to arrest Stevenson in his home.

   The district court described the events of the next few moments as
follows:

        [P]etitioner was sitting on a couch in his living room when
        he was placed under arrest. As one officer grabbed the peti-
    1
     Johnson will be referred to throughout this opinion as "the State."
                          STEVENSON v. JOHNSON                          3
      tioner’s left arm and attempted to handcuff him, the peti-
      tioner rose from the couch. The other officer grabbed the
      petitioner’s right arm and they all fell over a coffee table.
      During this struggle, the petitioner managed to get one of
      the officer’s guns and fire four shots. One officer stated that
      he heard the gun shots as they were falling. The shots struck
      one officer [Steadman] in the knee and the other [Munoz]
      in the chest. In addition, the petitioner accidentally shot
      himself.

(J.A. at 94.)

                                    II.

   A Spartanburg County grand jury charged Stevenson with two
counts of assault and battery with intent to kill2 and two counts of
resisting arrest. After a jury trial, Stevenson was found guilty on all
counts. He was sentenced to a term of ten years imprisonment on each
of the four charges, the terms to run consecutively.

   Stevenson thereafter appealed to the Supreme Court of South Caro-
lina. In that appeal, his counsel filed an Anders brief, together with
a motion to be relieved from representation. Stevenson filed supple-
mental materials pro se. The state Supreme Court dismissed the
appeal and granted counsel’s motion to be relieved on December 7,
1995.

   Stevenson filed an application for post-conviction relief (PCR) in
the state trial court on February 2, 1996. He alleged in that application
that his trial counsel had been ineffective in: (1) failing to object to
the imposition of consecutive sentences on the ground that the sen-
tence Stevenson ultimately received was illegal under S.C. Code Ann.
§ 17-25-50,3 and (2) failing to object to his convictions and sentences
  2
    Although Stevenson was initially charged with assault and battery
with intent to kill ("ABIK"), he was actually convicted of the lesser-
included offense of assault and battery of a high and aggravated nature
("ABHAN").
  3
    Section 17-25-50 states that
4                        STEVENSON v. JOHNSON
for ABHAN and resisting arrest on double jeopardy grounds. In sup-
port of his second argument, Stevenson asserted that his trial counsel
should have made a double jeopardy objection based on State v. Holl-
man, 102 S.E.2d 873 (S.C. 1958), in which the state Supreme Court
held that a defendant could not be convicted of, and punished sepa-
rately for, assault on an officer and resisting arrest because the defen-
dant’s "assault upon the officer was the essence of, and inseparate
from, his resistance of arrest." Id. at 884. Stevenson’s application was
denied by the state trial court on March 14, 1997. The state trial court
held that § 17-25-50 was inapplicable, that Stevenson’s counsel had
not performed deficiently, and that Stevenson’s sentences did not con-
stitute double jeopardy.

   Stevenson then petitioned the state Supreme Court for a writ of cer-
tiorari, raising only the double jeopardy issue. See Stevenson v. State,
516 S.E.2d 434, 436 n.1 (S.C. 1999). The state Supreme Court
granted certiorari and affirmed the state trial court’s denial of Steven-
son’s PCR application on the ground that Stevenson’s trial counsel
was not ineffective for failing to raise a double jeopardy objection.
The court held that under the "same elements" test in Blockburger v.
United States, 284 U.S. 299, 304 (1932) (holding that "the test to
determine whether there are two offenses or only one is whether each
provision requires proof of an additional fact which the other does
not"), Stevenson’s convictions and sentences did not violate the Dou-
ble Jeopardy Clause. The court rejected Stevenson’s argument that
Hollman compelled a different result, because Hollman applied an
"incorrect analysis" to the double jeopardy question.4 Stevenson, 516

       In determining the number of offenses for the purpose of
    imposition of sentence, the court shall treat as one offense any
    number of offenses which have been committed at times so
    closely connected in point of time that they may be considered
    as one offense, notwithstanding under the law they constitute
    separate and distinct offenses.
S.C. Code Ann. § 17-25-50.
   4
     Although the Hollman opinion did not indicate explicitly that it was
relying on the Double Jeopardy Clause — either state or federal — the
state Supreme Court in Stevenson described that case’s holding as having
been based on the Double Jeopardy Clause. See Stevenson, 516 S.E.2d
at 199 ("The Hollman Court held that convictions for resisting arrest and
ABHAN constituted a violation of the Double Jeopardy clause.").
                          STEVENSON v. JOHNSON                            5
S.E.2d at 437. Accordingly, the court "expressly overrule[d]" Holl-
man. Id.

   On August 23, 1999, Stevenson filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C.A. § 2254 in the United States District
Court for the District of South Carolina. He argued in the petition the
same grounds he had asserted in his original state PCR application —
that his trial counsel was ineffective in failing to object under § 17-
25-50 to the consecutive sentences imposed on him, and in failing to
raise double jeopardy objections to his convictions and sentences.5 On
August 17, 2001, the district court entered an order granting habeas
relief only on Stevenson’s double jeopardy claim,6 and ordered the
state trial court to re-sentence Stevenson in accordance with its opin-
ion. (J.A. at 106.) The State timely noted this appeal.

                                    III.

   We review de novo the district court’s decision to grant Stevenson
habeas relief. Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir. 2002).
Because the state Supreme Court adjudicated the merits of Steven-
son’s double jeopardy claim, federal court "review of its decision is
‘limited by the deferential standard . . . set forth in [28 U.S.C.A.]
§ 2254(d), as interpreted by the Supreme Court in Williams v. Taylor,
529 U.S. 362 (2000).’" Id. (parallel citations omitted) (quoting Bell v.
Jarvis, 236 F.3d 149, 157 (4th Cir. 2000) (en banc), cert. denied, Bell
v. Beck, 122 S. Ct. 74 (2001)). Under that standard, "federal habeas
relief may not be granted unless the state court’s decision ‘was con-
trary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of the United
States.’" Id. (quoting § 2254(d)(1)); see also Lockyer v. Andrade, ___
U.S. ___, 2003 WL 728766, at *17 (March 5, 2003).

  To obtain relief on a claim of ineffective assistance of counsel, a
petitioner must show both (1) deficient performance and (2) preju-
   5
     For ease of reference, we will henceforth refer to Stevenson’s ineffec-
tive assistance of counsel claim premised on counsel’s failure to raise a
double jeopardy objection as the "double jeopardy claim."
   6
     The district court did not grant relief on Stevenson’s § 17-25-50
claim, and he has not sought to appeal that decision.
6                        STEVENSON v. JOHNSON
dice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The State
argues that the state Supreme Court’s resolution of Stevenson’s dou-
ble jeopardy claim was not contrary to, or an unreasonable application
of, clearly established federal law because trial counsel’s performance
was not deficient and because Stevenson cannot establish prejudice.
Even assuming that counsel’s performance was deficient, we agree
with the State that Stevenson cannot show prejudice under the
Supreme Court’s holding in Lockhart v. Fretwell, 506 U.S. 364
(1993), and thus that the state court’s decision was not contrary to or
an unreasonable application of clearly established federal law.

                                   A.

   In Fretwell, the Supreme Court addressed a similar ineffective
assistance of counsel claim raised in a § 2254 petition. The issue there
was "whether counsel’s failure to make an objection in a state crimi-
nal sentencing proceeding — an objection that would have been sup-
ported by a decision which subsequently was overruled — constitutes
‘prejudice’ within the meaning of . . . Strickland." Id. at 366. Fretwell,
an Arkansas inmate, was convicted of capital felony murder in Arkan-
sas state court. During the penalty phase of the trial, the State argued
that two aggravating factors were present: (1) the murder was com-
mitted for pecuniary gain; and (2) the murder was committed to facili-
tate Fretwell’s escape. Fretwell argued in his § 2254 petition that his
counsel was ineffective in failing to object to the death sentence
imposed on him on the ground that the "pecuniary gain" aggravating
factor duplicated an element of the underlying felony in his capital
felony-murder conviction — robbery — and the sentence was there-
fore unconstitutional. At the time of Fretwell’s trial and sentencing,
a decision of the Eighth Circuit Court of Appeals held that a death
sentence is unconstitutional if an aggravating factor on which it was
based duplicates an element of the underlying felony, because that
factor does not genuinely narrow the class of persons eligible for the
death penalty. See Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985),
overruled by Perry v. Lockhart, 871 F.2d 1384 (8th Cir. 1989).

   The district court granted Fretwell habeas relief and conditionally
vacated his death sentence. The Eighth Circuit affirmed, although it
had two years earlier overruled Collins in Perry. The Eighth Circuit
reasoned that the trial court would have been bound to follow its deci-
                         STEVENSON v. JOHNSON                           7
sion in Collins, had counsel raised the issue at the time of trial.
Accordingly, the Eighth Circuit remanded with instructions for the
district court to sentence Fretwell to life imprisonment.

  The Supreme Court reversed. The Court noted that

     the right to the effective assistance of counsel is recognized
     not for its own sake, but because of the effect it has on the
     ability of the accused to receive a fair trial. Absent some
     effect of challenged conduct on the reliability of the trial
     process, the Sixth Amendment guarantee is generally not
     implicated.

Fretwell, 506 U.S. at 369 (quoting United States v. Cronic, 466 U.S.
648, 658 (1984)). The Court observed that under the two-component
test for ineffective assistance of counsel, "a criminal defendant alleg-
ing prejudice must show ‘that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.’"
Id. (quoting Strickland, 466 U.S. at 687). Because reliability and fair-
ness are the touchstones of this inquiry, "an analysis focusing solely
on mere outcome determination, without attention to whether the
result of the proceeding was fundamentally unfair or unreliable, is
defective." Id. Addressing the specifics of the case before it, the Court
concluded that even if an objection by Fretwell’s lawyer would have
led the trial court to follow Collins, subsequently overruled by the
Eighth Circuit, counsel’s error only "would have deprived [Fretwell]
of the chance to have the state court make an error in his favor." Id.
at 371 (internal quotation marks omitted). Accordingly, the Court
held, "[t]he result of the sentencing proceeding . . . was neither unfair
nor unreliable," and Fretwell’s right to effective assistance of counsel
therefore was not impinged. Id.

   Here, as in Fretwell, if Stevenson’s counsel had raised a double
jeopardy objection based on Hollman at trial, the state trial court, act-
ing on the basis of the law at the time, might have upheld the objec-
tion. See Stevenson, 516 S.E.2d at 437 ("Under Hollman,
[Stevenson’s] convictions for resisting arrest and ABHAN constitute
a violation of the Double Jeopardy Clause."). That possibility, how-
ever, does not suffice to demonstrate prejudice under Strickland
because Stevenson cannot show that the result of his trial was in fact
8                        STEVENSON v. JOHNSON
unfair or unreliable as a result of his counsel’s failure to object. That
is, Stevenson’s counsel’s failure did not "deprive[ ] him of any sub-
stantive or procedural right to which the law entitle[s] him." See Wil-
liams v. Taylor, 529 U.S. 362, 392 (2000) (discussing the holding in
Fretwell). Rather, as the state Supreme Court has made clear, Holl-
man’s holding was incorrect, and if the trial court had upheld an
objection on that basis, it would have made an error in Stevenson’s
favor to which he was not entitled. Id. ("[G]iven the overriding inter-
est in fundamental fairness, the likelihood of a different outcome
attributable to an incorrect interpretation of the law should be
regarded as a potential ‘windfall’ to the defendant rather than the
legitimate ‘prejudice’ contemplated by our opinion in Strickland.").

                                   B.

   Stevenson argues, however, that the Fretwell analysis cannot be
applied in his case. He asserts that Fretwell is inapplicable where
counsel’s error deprives a defendant of a procedural or substantive
right, cf. Fretwell, 506 U.S. at 372 ("[u]nreliability or unfairness does
not result if the ineffectiveness of counsel does not deprive the defen-
dant of any substantive or procedural right to which the law entitles
him"), and that his consecutive sentences for resisting arrest and
ABHAN violate his right, guaranteed by the Due Process Clause, to
be sentenced under the law as it stood at the time of his trial.

   Stevenson cites Marks v. United States, 430 U.S. 188 (1977), in
support of the proposition that he was denied a right guaranteed by
the Due Process Clause. In Marks, the Supreme Court addressed con-
victions for interstate transportation of obscene materials. When the
petitioners’ conduct occurred, the narrow definition of obscenity from
Memoirs v. Massachusetts, 383 U.S. 413 (1966), applied. Before their
trial, however, the Supreme Court expanded the obscenity definition
in Miller v. California, 418 U.S. 15 (1973). The trial court instructed
the jury under the later, expanded definition, and the petitioners were
convicted. The petitioners argued in the Supreme Court that Miller
"unforeseeably expanded the reach of the federal obscenity statutes,"
and the Court agreed. The Court held that application of the expanded
Miller definition violated Due Process because it ignored the petition-
ers’ "right to fair warning of that conduct which will give rise to crim-
inal penalties." Marks, 430 U.S. at 191; see also Bouie v. City of
                         STEVENSON v. JOHNSON                          9
Columbia, 378 U.S. 347, 353-54 (1964) ("[A]n unforeseeable judicial
enlargement of a criminal statute, applied retroactively, operates pre-
cisely like an ex post facto law, . . . [and] [i]f a state legislature is
barred by the Ex Post Facto Clause from passing such a law, it must
follow that a State Supreme Court is barred by the Due Process
Clause from achieving precisely the same result by judicial construc-
tion.").

   Stevenson argues that Hollman was the law at the time of his
offense (although, as in Marks, it was subsequently changed), and his
sentences therefore violate his constitutionally protected expectation
to be sentenced in accordance with its holding. Cf. Helton v. Fauver,
930 F.2d 1040, 1045 (3d Cir. 1991) (noting that while "Bouie and
Marks were concerned with the ex post facto construction of substan-
tive criminal statutes," the principle "applies equally to after-the-fact
increases in the degree of punishment"); Dale v. Haeberlin, 878 F.2d
930, 934 (6th Cir. 1989) (holding that "constitutional due process pro-
tections, like ex post facto protections, do extend to proscribe judi-
cially enforced changes in interpretations of the law that
unforeseeably expand the punishment accompanying a conviction
beyond that which an actor could have anticipated at the time of com-
mitting a criminal act").

   We have held that "[t]he essence of the due process argument in
Marks was that the new definition of obscenity was unforeseeable."
United States v. Ellen, 961 F.2d 462, 466 (4th Cir. 1992); id. ("Marks
turned on the fact that, at the time of the conduct for which they were
charged, ‘[t]he defendant[s] could not suspect that [their] actions
would later become criminal.’" (quoting Osborne v. Ohio, 495 U.S.
103, 117 (1990))). In this case, at the time of Stevenson’s offense, the
Supreme Court had expressly (and repeatedly) adopted the Blockbur-
ger "same elements" test for assessing asserted violations of the Dou-
ble Jeopardy Clause in a single prosecution. See, e.g., Grady v.
Corbin, 495 U.S. 508, 516 (1990) (affirming Blockburger test for sin-
gle prosecution of two offenses), overruled on other grounds by
United States v. Dixon, 509 U.S. 688, 704-12 (1993);7 Blockburger,
  7
    The Supreme Court in Grady affirmed the Blockburger test’s applica-
bility to double jeopardy challenges where the charged offenses are
10                       STEVENSON v. JOHNSON
284 U.S. at 304. Further, while it had not yet explicitly overruled
Hollman, the state Supreme Court had recognized and applied the
Blockburger test in its own opinions addressing double jeopardy chal-
lenges in single prosecutions. See, e.g., State v. Owen, 424 S.E.2d
473, 475 (S.C. 1992) (applying Blockburger); Jivers v. State, 406
S.E.2d 154, 156 (S.C. 1991) (applying Blockburger and Grady).8

brought in a single prosecution. Grady also added a proscription on sub-
sequent prosecution of offenses if, "to establish an essential element of
[the charged offense], the government will prove conduct that constitutes
an offense for which the defendant has already been prosecuted." Grady,
495 U.S. at 510. The subsequent prosecution proscription was overruled
in Dixon, 509 U.S. at 704, three years after the Grady decision, but in
any event neither that aspect of Grady nor the South Carolina cases that
followed its rationale are relevant here because Stevenson was prose-
cuted only once.
   8
     Stevenson suggests that the holding in Hollman was based on an
interpretation of the Double Jeopardy Clause in the South Carolina Con-
stitution, and therefore both the United States Supreme Court’s double
jeopardy decisions and the state Supreme Court’s double jeopardy deci-
sions after Hollman are inapposite because they address only the federal
provision. As noted supra note 4, the Hollman opinion does not indicate
explicitly that it relied on the federal or state Double Jeopardy Clause.
Because at the time Hollman was decided the federal Double Jeopardy
Clause was inapplicable to the states, see Palko v. Connecticut, 302 U.S.
319, 328 (1937), overruled by Benton v. Maryland, 395 U.S. 784, 787
(1969), we assume that Hollman interpreted the South Carolina Double
Jeopardy Clause, although it relied on both South Carolina and federal
double jeopardy cases. After the federal Double Jeopardy Clause was
made applicable to the states, however, the state Supreme Court has
never suggested that the South Carolina provision sweeps more broadly
than the federal provision. Rather, the state Supreme Court has (and had
before Stevenson’s offense) consistently analyzed double jeopardy
claims under the Blockburger standard without distinguishing between
the nearly identical federal and state provisions. See, e.g., State v. Law-
son, 305 S.E.2d 249, 250 (S.C. 1983) (stating that "[t]he state and federal
constitutions guarantee freedom from double jeopardy and protect a
criminal defendant from punishment for both an offense and a lesser-
included offense when, as here, they are established by the very same
acts") (emphasis added); State v. Greuling, 186 S.E.2d 706, 710 (S.C.
1972) (concluding that no double jeopardy problem existed because the
                           STEVENSON v. JOHNSON                              11
Thus, based on its clear adoption by the United States Supreme Court
and the state Supreme Court, application of the Blockburger test to
Stevenson’s offenses was foreseeable.9 Accordingly, Stevenson can-
not show prejudice resulting from any error by his counsel, and the
state Supreme Court’s rejection of Stevenson’s ineffective assistance
claim was not contrary to, or an unreasonable application of, federal
law.

Blockburger test was met, over a dissent arguing that the state provision
should be interpreted more broadly than the federal provision); see also
State v. Dobson, 309 S.E.2d 752 (S.C. 1983) (treating federal and state
Double Jeopardy Clauses as coextensive); State v. Prince, 301 S.E.2d
471 (S.C. 1983) (same); William S. McAninch, Unfolding the Law of
Double Jeopardy, 44 S.C. L. Rev. 411, 418 (1993) (noting that since the
Fifth Amendment’s Double Jeopardy Clause was held applicable to the
states in 1969 "the South Carolina courts have never interpreted the state
provision independently of its federal counterpart").
   9
     We reject Stevenson’s argument that Hollman’s validity was "reaf-
firmed" (Appellee’s Br. at 22) in State v. Walsh, 388 S.E.2d 777 (S.C.
1988), overruled by State v. Easler, 489 S.E.2d 617 (S.C. 1997). In
Walsh, the state Supreme Court held that a defendant could not be con-
victed of both ABIK and the South Carolina offense of pointing a fire-
arm. On rehearing, the court held that even though a Blockburger "same
elements" analysis revealed no double jeopardy problem because the two
offenses were composed of different elements, the intent of the legisla-
ture not to permit cumulative punishment for the two offenses when
committed in the same act was clear. See id. at 780. This was a straight-
forward application of double jeopardy law as elucidated by the Supreme
Court, entirely consistent with Blockburger. See Garrett v. United States,
471 U.S. 773 (1985) ("[T]he Blockburger rule is not controlling when the
legislative intent is clear from the face of the statute or the legislative his-
tory"); see also Walsh, 388 S.E.2d at 779-80 (quoting Garrett in finding
the Blockburger rule inapplicable because of clear legislative intent).
Thus, Walsh stands only for the uncontroversial proposition that where
legislative intent is otherwise clear, the Blockburger analysis does not
control. See Easler, 489 S.E.2d at 623 n.14 (noting that "the order on
rehearing in Walsh makes clear that the basis for the court’s finding of
a double jeopardy violation rests in its interpretation of the legislative
intent that a single occurrence of [ABIK] and pointing a firearm were not
intended to be subject to cumulative punishment").
12                      STEVENSON v. JOHNSON
                                 IV.

   For the reasons stated above, the judgment of the district court
granting relief is reversed, and the case is remanded with instructions
to dismiss the petition.

                                       REVERSED AND REMANDED
