     Case: 17-30178    Document: 00514582991     Page: 1   Date Filed: 08/02/2018




         IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit


                                  No. 17-30178                         FILED
                                                                  August 2, 2018
                                                                  Lyle W. Cayce
ANTHONY THOMAS,                                                        Clerk

             Petitioner - Appellee

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

             Respondent - Appellant



                 Appeal from the United States District Court
                     for the Middle District of Louisiana


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      This case asks us to traverse the knotty terrain at the intersection of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), double
jeopardy, and ineffective assistance of counsel. We are called upon to review
the lower court’s decision to grant habeas relief; we will reverse that decision
and deny the petitioner’s request for relief.
                                        I.
      Charged with aggravated burglary in Louisiana state court in 1998,
Anthony Thomas was only convicted of attempted aggravated burglary, an
implied acquittal of aggravated burglary. With the conviction for attempted
aggravated burglary, the state initiated habitual offender proceedings, seeking
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Thomas’s life imprisonment without the possibility of parole. 1 But the
reviewing court found that the prosecutor had committed an error in his closing
statement, and remanded for a new trial. Instead of charging him with
attempted aggravated burglary—or some other non-barred offense—the state
charged Thomas with aggravated burglary once again, an undisputed double
jeopardy violation.
       In the second proceeding, Thomas waived a jury, and in a bench trial
before a Louisiana state court judge, he was convicted of a different lesser
included offense: unauthorized entry of an inhabited dwelling. Louisiana once
again initiated habitual offender proceedings, but the state intermediate court
again vacated the conviction. Upon Louisiana’s appeal to the Louisiana
Supreme Court, however, the conviction for unauthorized entry was
reinstated. The Louisiana Supreme Court reasoned that while a double
jeopardy violation had doubtless occurred, the final conviction was for a
nonjeopardy-barred offense, and that conviction was not necessarily tainted by
the wrongful prosecution.
       Turning to state collateral review, Thomas argued that his counsel had
been ineffective for failing to move to quash the jeopardy-barred indictment for
aggravated burglary. The state judge who had presided over Thomas’s bench
trial conducted hearings and determined that Thomas was entitled to relief.
The Louisiana Supreme Court reversed once more. Disagreeing with the trial



       1  Importantly, any new felony conviction would result in life in prison without the
possibility of parole for Thomas. In determining the applicability of a habitual offender
statute, Louisiana courts apply the version in effect at the time of the crime’s commission.
See State v. Evans, 998 So.2d 197, 205 (La. Ct. App. 2008). For Thomas, that means the
version in effect in 1998, which said, “[i]f the third felony or either of the two prior felonies is
a felony defined as a crime of violence . . . , the person shall be imprisoned without benefit of
parole, probation, or suspension of sentence.” La. R.S. 15:529.1.A.(1)(ii) (1998). Thomas has
two previous felony convictions—one for armed robbery, one for attempted manslaughter—
and both are crimes of violence under Louisiana law.
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court—and over a dissent—it held that Thomas had not been prejudiced by his
lawyer’s failure to quash the invalid charge.
      Thomas then turned to the federal courts. His petition for habeas relief
urges two flaws in the state court proceedings. First, he claims that the
Louisiana Supreme Court incorrectly resolved the Fifth Amendment double
jeopardy argument that he raised on direct appeal. Second, he claims that the
Louisiana Supreme Court incorrectly resolved the Sixth Amendment
ineffective assistance of counsel argument that he raised on state collateral
review. The magistrate judge recommended granting relief on both grounds,
and the district court below relied on this recommendation to once again
reverse Thomas’s conviction; that decision is now before us.
                                           II.
      We review a district court’s decision to grant habeas relief for clear error
in factual determinations and de novo for legal ones. 2 Because the Louisiana
Supreme Court has adjudicated Thomas’s claims on the merits, our review is
subject to AEDPA’s so-called “relitigation bar.” 3 And because that relitigation
bar applies, we may not grant habeas relief unless “the [state court’s]
adjudication of the claim resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 4 AEDPA’s reference to clearly
established law encompasses “the holdings, as opposed to the dicta,” of
Supreme Court decisions. 5 For a Supreme Court decision to clearly establish
law, it must “confront ‘the specific question presented by [another] case’”—it is
not enough for a subsequent case to involve “circumstances . . . [that] are only


      2 See Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009).
      3 See 28 U.S.C. § 2254(d)(1).
      4 Id.
      5 Williams v. Taylor, 529 U.S. 362, 412 (2000).


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‘similar to’” earlier Supreme Court decisions. 6 Thus, we cannot simply “fram[e]
[Supreme Court] precedents at . . . a high level of generality” and declare a
principle to be clearly established when the Court has yet to squarely consider
it. 7
         To overcome the relitigation bar, a petitioner must show that a state
court acted “contrary to” or engaged in an “unreasonable application of” the
Supreme Court’s clearly established law. 8 These are distinct errors. 9 A state
court decision is “contrary to” clearly established law if it entails “a conclusion
opposite to that reached by th[e] Court on a question of law or if the state court
decides a case differently than th[e] Court has on a set of materially
indistinguishable facts.” 10 A state court decision is an “unreasonable
application of” clearly established law, on the other hand, “if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” 11 The
Court has explained that a state court opinion cannot comprise an
unreasonable application of Supreme Court precedent so long as “‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.” 12 Thus,
for a state decision to amount to an unreasonable application of federal law, a
petitioner must point to an error so “well understood and comprehended in
existing law” it is “beyond any possibility for fairminded disagreement.” 13




         Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per curiam).
         6

         Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam).
         7
       8 See 28 U.S.C. § 2254(d)(1).
       9 See Williams, 529 U.S. at 412.
       10 Id. at 413.
       11 Id.
       12 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).
       13 Metrish v. Lancaster, 133 S. Ct. 1781, 1786–87 (2013) (quoting Richter, 562 U.S. at

103) (quotations omitted).
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                                         III.
        We begin by deciding whether the Louisiana Supreme Court’s resolution
of Thomas’s Fifth Amendment double jeopardy claim on direct appeal was
contrary to, or reflected an unreasonable application of, clearly established
law.
                                         A.
        First, according to Thomas, the Louisiana Supreme Court’s decision was
contrary to Price v. Georgia, 14 a case that he declares to be “materially
indistinguishable” from this one. 15 If that were true, his argument would
naturally be on strong footing. But it is not.
        Price v. Georgia involved a defendant who was twice charged with
murder in state court. 16 The first time, the jury returned a verdict for a lesser
included offense, thereby implicitly acquitting him of the murder charge. 17 But
as with Thomas, the state proceeded to charge him with murder once more. 18
And as with Thomas, the defendant was again convicted of a lesser included
offense. 19 On direct appeal, the Price Court held that the second prosecution
violated the Double Jeopardy Clause and reversed the conviction. 20 At first
blush, the facts seem to align: both Thomas and the defendant in Price were
charged with a greater offense and convicted of a lesser included offense, and
were then charged with the same greater offense and again convicted of a
lesser included offense.
        But an important difference marks Price out from this case. In Price, the
second trial was before a jury. When it opined on the harm of the double

        14 398 U.S. 323 (1970).
        15 Blue Br. at 13.
        16 Id. at 324.
        17 Id.
        18 Id.
        19 Id.
        20 Id. at 331.


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jeopardy violation, therefore, the Price Court credibly worried about the “risk
or hazard of trial and conviction” stemming from the improper second charge. 21
In particular, it registered concern that the jeopardy-barred charge “induced
the jury to find [the defendant] guilty of the less serious offense . . . rather than
to continue to debate his innocence.” 22 However, Thomas’s second trial was a
bench trial, so it is at least plausible that “the primary evil addressed in Price—
the risk of jury prejudice—is not present” here. 23
         It is certainly true, as the magistrate judge concluded, that Price is
“factually similar” to this case. But for the Louisiana Supreme Court’s double
jeopardy decision to be contrary to Price, Price must be more than just similar
to Thomas’s situation: it must contain a set of “facts that are materially
indistinguishable” from this case. 24 Yet we have often said that judges, unlike
juries, are presumptively insulated from any undue trial influence. 25 It does
not matter that the Louisiana Supreme Court did not explicitly distinguish
Price on these grounds—or address Price at all, for that matter. 26 In fact, state
courts may avoid issuing decisions contrary to clearly established federal law
even without “awareness of [the Supreme Court’s] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.” 27 We
must then conclude that the Louisiana Supreme Court, in not applying Price



         21 Id.
         22 Id.
         23 Renteria v. Adams, No. C 08-5325 CRB, 2011 WL 89412, at *11 (N.D. Cal. Jan. 11,

2011).
          Williams, 529 U.S. at 405.
         24

          See, e.g., United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993) (“The
         25

prejudicial impact of erroneously admitted evidence in a bench trial is presumed to be
substantially less than it might have been in a jury trial.”).
       26 See State v. Thomas, 926 So.2d 490, 491 (La. 2006) (per curiam).
       27 Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Evans v. Davis, 875 F.3d 210, 216

(5th Cir. 2017) (“In fact, [to survive review under the ‘contrary to’ clause,] the state habeas
court need not even display awareness of the Supreme Court’s cases . . . .”).
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in review of Thomas’s Fifth Amendment claim, did not contravene clearly
established federal law under AEDPA’s relitigation bar.
                                              B.
       Even though the Louisiana Supreme Court’s rejection of Thomas’s Fifth
Amendment claim was not contrary to Price, Thomas is still entitled to relief
if he can show an unreasonable application of clearly established law. He
claims that the Louisiana Supreme Court’s analysis contains just that: by his
reckoning, the Louisiana Supreme Court misapplied the framework
established by Price and Morris v. Mathews. 28
                                               i.
       The Louisiana Supreme Court’s decision on Thomas’s Fifth Amendment
claim was laconic. It did not pause to explain why Mathews applies to Thomas’s
claim and, in light of that application, why he did not meet the standard
Mathews sets out. 29 Our approach has been to look “not just [at] the arguments
and legal theories the state court’s opinion actually gave, but also any
arguments or legal theories the state court reasonably could have given.” 30 The
continued viability of this approach after the Supreme Court’s decision in
Wilson v. Sellers is uncertain, however. 31 In Wilson, the Court explained that
when the most recent state court to consider a constitutional issue provides a
“reasoned opinion,” we are to “review[] the specific reasons given by the state
court and defer[] to those reasons if they are reasonable.” 32 If the opinion “does



       28  475 U.S. 237 (1986).
       29  In its Fifth Amendment opinion, the Louisiana Supreme Court only cited Mathews
once, and the court never explained why it believed that case to have been more relevant
than Price. The Louisiana Supreme Court also only declared that Mathews denied Thomas
relief “because the verdict was not inherently tainted by virtue of its return in the trial of a
jeopardy-barred offense.” 926 So.2d at 491.
        30 Langley v. Price, 890 F.3d 504, 515 (5th Cir. 2018).
        31 138 S. Ct. 1188 (2018).
        32 Id. at 1192.


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not come accompanied with those reasons,” however, we are to “look through”
the decision to an earlier state court opinion and presume that the earlier one
provides the relevant rationale. 33
       It is not entirely clear whether Wilson demands that we look to an earlier
state opinion when the latest state court to consider the issue did provide an
opinion, but only a vague or terse one—the Wilson Court was only directly
concerned with a state court order “that was made without any explanatory
opinion” whatsoever. 34 However, we need not reach that question here, because
we cannot “look through” the Louisana Supreme Court’s Fifth Amendment
opinion: the Louisiana Supreme Court was the only state court to consider and
reject Thomas’s Fifth Amendment double jeopardy claim. Nor is it an answer
that the Louisiana Supreme Court did not actually adjudicate the Fifth
Amendment claim on the merits, and that it is therefore not entitled to AEDPA
deference. That would be a misstep. While the Louisiana Supreme Court’s
opinion said little, it did adjudicate Thomas’s Fifth Amendment claim on the
merits under the standard that the Court has laid out; 35 and that leaves us at
Richter’s door. 36
       Richter, confronted with a summary decision, a claim of unreasonable
application, and no other state court opinion to look to, held that the
appropriate course of action was to decide “what arguments or theories
supports or . . . could have supported[] the state court’s decision.” 37 Thus, to



       33 See id.
       34 Id. at 1193.
       35 See, e.g., Richter, 562 U.S. at 99 (“When a federal claim has been presented to a

state court and the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”).
       36 See Wilson, 138 S. Ct. at 1195 (“Richter did not directly concern the issue before [the

Court] . . . . [I]n Richter, there was no lower court opinion to look to.”).
       37 Richter, 562 U.S. at 102 (emphasis added).


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determine whether the Louisiana Supreme Court engaged in an unreasonable
application of Mathews, we must “gather[] the arguments and theories that
could support the state court’s ultimate decision” and “ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent” with Supreme Court precedent. 38
                                           ii.
      First of all, Thomas argues that the Louisiana Supreme Court’s decision
to apply Mathews represented an unreasonable application of clearly
established law; Price is “the controlling ruling” here, according to him, and
any invocation of Mathews was errant. We disagree. The extent to which this
case is governed by Mathews or Price is subject to the kind of “fairminded
disagreement” that AEDPA shields from our intervention. 39
      Morris v. Mathews is a double jeopardy case postdating Price. 40 In
Mathews, the defendant pled guilty to aggravated robbery and was
subsequently charged and convicted with aggravated murder. 41 But the
aggravated murder conviction was premised on aggravated robbery as the
predicate offense—a double jeopardy violation. 42 The state court of appeals
modified the conviction to ordinary murder and correspondingly lowered the
defendant’s sentence. 43 The Supreme Court then held that habeas relief was
inappropriate. 44
      By Mathews, “Price did not impose an automatic retrial rule whenever a
defendant is tried for a jeopardy-barred crime and is convicted of a lesser
included offense. Rather, the Court relied on the likelihood that the conviction

      38 Evans, 875 F.3d at 217 (internal quotation marks omitted).
      39 Richter, 562 U.S. at 103.
      40 Morris v. Mathews, 475 U.S. 237 (1986).
      41 Id. at 242.
      42 Id. at 243.
      43 Id.
      44 Id. at 248.


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for manslaughter had been influenced by the trial on the murder charge—that
the charge of the greater offense for which the jury was unwilling to convict
also made the jury less willing to consider the defendant’s innocence on the
lesser charge.” 45 Furthermore, according to the Mathews Court, “Price [does
not] suggest[] that a conviction for an unbarred offense is inherently tainted if
tried with a jeopardy-barred charge. Instead, [it] suggest[s] that a new trial is
required only when the defendant shows a reliable inference of prejudice.” 46
      Under Mathews, the rule is that defendants like Thomas must show “a
reliable inference of prejudice” to warrant reversal on the basis of the Fifth
Amendment. Again, a plausible way to read this rule alongside Price hinges on
the identity of the factfinder and the accompanying likelihood that the greater
offense charge induced it to convict the defendant. On that reading, it is not
unreasonable to conclude that Thomas would have to do something more than
the defendant in Price did to “show[] a reliable inference of prejudice” in his
situation, since it is less likely that the issuance of a jeopardy-barred charge
alone would unduly influence a judge—or make him “less willing to consider
the defendant’s innocence”—than a jury. Given the murky boundaries of Price
and Mathews, we cannot say that the Louisiana Supreme Court unreasonably
applied Mathews.
                                         iii.
      Thomas argues that even if Mathews does apply, and even if it does
require him to make an additional showing of “a reliable inference of prejudice”
before his conviction may be reversed, the Louisiana Supreme Court
unreasonably applied that standard. Under Mathews, a reliable inference of




      45   Id. at 245.
      46   Id. (emphasis added).
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prejudice is tantamount to “a probability [of prejudice] sufficient to undermine
confidence in the outcome.” 47
      The Louisiana Supreme Court misapplied this standard, Thomas’s
argument goes, because he has shown prejudice in multiple ways. First, the
greatest offense for which he could have been tried after the aggravated
burglary acquittal was attempted aggravated burglary—the very offense that
he was convicted of in his first trial. But if he were actually charged with
attempted aggravated burglary, he could not have received the same conviction
for unauthorized entry of an inhabited dwelling, since it is not a responsive
verdict to attempted aggravated burglary. Thus, there is a reasonable
probability that Thomas would not have been convicted of unauthorized entry
of an inhabited dwelling but for the double jeopardy violation. Thomas also
claims that the jeopardy-barred conviction exposed him to a greater number of
responsive guilty verdicts and the possibility of higher sentencing ranges.
      Louisiana responds by pointing out that no matter what felony Thomas
were convicted of, he would be eligible for habitual offender proceedings, which,
if successfully pursued, would result in a life sentence in prison without the
possibility of parole. And Louisiana argues that there is little doubt that even
in the absence of the jeopardy-barred charge, Thomas would have been charged
and convicted of some felony, as he ultimately was after both trials. 48
      The dispute turns, then, on what kind of prejudice a defendant must
show to a degree of reasonable probability under Mathews. Thomas claims that


      47  Id. at 475.
      48  At one point, Thomas argues that a charge of unauthorized entry of an inhabited
dwelling could have yielded a conviction for a lesser included offense of misdemeanor
trespass, but he provides no argument about how this is probable beyond mere theoretical
possibility. The only difference between misdemeanor trespass and unauthorized entry of an
inhabited dwelling is that criminal trespass covers uninhabited dwellings, and a judge
already found the site of Thomas’s trespass—an apartment—to be inhabited. See State v.
Simmons, 817 So.2d 16, 20–21 (La. 2002).
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it is enough to show that his particular conviction may not have obtained
without the jeopardy-barred charge; Louisiana claims that more is required,
and that the sentence or ultimate result must be meaningfully different in
some way.
       Mathews itself is here uncertain. At one point, it speaks of the
defendant’s need to show a reasonable probability “that he would not have been
convicted of the nonjeopardy-barred offense absent the presence of the
jeopardy-barred offense.” 49 At another, it speaks more generally of a
defendant’s need to show a reasonable probability that “the result of the
proceeding” would have been different without the jeopardy-barred offense. 50
At still another point, it suggests that a defendant must show a reasonable
probability that the outcome of a trial on the convicted lesser included
offense—here, unauthorized entry of an inhabited dwelling—would have been
different. 51
       We cannot say that the choice among these alternatives is beyond the
scope of “fairminded disagreement.” It is possible to read Mathews for the
proposition that a court must mechanically reverse Thomas’s conviction since
but for the state’s decision to charge a jeopardy-barred offense there is a
reasonable probability that he would have been convicted of some felony other
than unauthorized entry of an inhabited dwelling, such as attempted
aggravated burglary. But Mathews may also stand for the proposition that
Thomas must show a reasonable probability that his sentence—the more
practical “result” of the trial—would be meaningfully different. Or that the


       49 Mathews, 475 U.S. at 247.
       50 Id.
       51 See id. at 248 (“[T]he court’s observation that the admission of questionable evidence

‘may have prejudiced the jury’ falls far short of a considered conclusion that if the evidence
at issue was not before the jury in a separate trial for murder, there is a reasonable
probability that respondent would not have been convicted.” (emphasis added)).
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result of a trial specifically for unauthorized entry of an inhabited dwelling
would end in no conviction.
      We must assume that the Louisiana Supreme Court had one of these
latter interpretations of Mathews in mind; even if they do not reflect the
interpretations that we would adopt in the first instance, we cannot say that
they are unreasonable. So we must conclude that Thomas failed to meet his
burden of showing a reasonable probability that a different result would have
obtained without the jeopardy-barred aggravated burglary charge. Thomas
has made no non-speculative showing that without the aggravated burglary
charge, he would not have been convicted of a felony. And in the event of such
a conviction, he has also made no showing that the state would not move to
pursue habitual offender proceedings as it has twice before, putting him in
precisely the same place as he is right now. If the proper reference point is
taken to be a fresh trial specifically for unauthorized entry of an inhabited
dwelling, Thomas has also made no showing that such a trial would end in
anything other than his conviction—again, leaving him where he is now.
      We therefore conclude that the Louisiana Supreme Court did not
unreasonably apply Mathews in denying Thomas his requested relief upon his
Fifth Amendment double jeopardy claim.
                                     IV.
      Thomas also raises a Sixth Amendment ineffective assistance of counsel
argument; he claims that his counsel was ineffective for failing to quash the
jeopardy-barred aggravated burglary charge, a claim adjudicated on the merits
and rejected by the Louisiana Supreme Court on state collateral review. Thus,
as with Thomas’s Fifth Amendment double jeopardy claim, we are bound by
the strictures of AEDPA in reviewing it.




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      The underlying constitutional standard governing Thomas’s Sixth
Amendment argument is the familiar one derived from Strickland: the
petitioner must show both that his “counsel’s representation fell below an
objective standard of reasonableness” and that this deficiency prejudiced
him. 52 An error is prejudicial if it results in “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” 53 The burden rests on the petitioner to show that a Strickland
error was prejudicial. 54 Additionally, when Strickland arises in the context of
AEDPA’s relitigation bar—as it does here—we are confronted with two
overlapping standards that are each “highly deferential.” 55 “[W]hen the two
[standards] apply in tandem, [our] review is ‘doubly’ so.” 56
                                            A.
      Unlike its opinion on direct review of Thomas’s Fifth Amendment double
jeopardy claim, the Louisiana Supreme Court’s opinion on collateral review
explains why it denied Thomas’s ineffective assistance of counsel claim. It did
so because it did not believe that Thomas had met his burden of showing
prejudice under Strickland—“[d]efendant’s prejudice argument is [] wanting,”
the Louisiana Supreme Court explained, “in light of the almost certain chance
that he would have received the same habitual offender sentence,
notwithstanding the filing of a timely motion to quash.” 57 As in the Fifth
Amendment context, this reflects an interpretation of prejudice pegged to what
the court saw as the likely practical outcome of the proceedings and the
sentence Thomas would receive even in the absence of a double jeopardy


      52 Strickland v. Washington, 466 U.S. 668, 688 (1984).
      53 Id. at 694.
      54 See Richter, 562 U.S. at 104.
      55 See id. at 105 (quoting Strickland, 466 U.S. at 689).
      56 Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
      57 State v. Thomas, 124 So.3d 1049, 1057 (La. 2013).


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violation: life in prison without the possibility of parole under Louisiana’s
habitual offender statute.
      Thomas levels a preliminary charge at the form of the Louisiana
Supreme Court’s reasoning: the Louisiana Supreme Court’s analysis took the
wrong tack because it variously cited Lockhart v. Fretwell for the proposition
that a Strickland prejudice analysis must provide due attention “to whether
the result of the proceeding was fundamentally unfair or unreliable.” 58
Lockhart’s prescription, however, “do[es] not justify a departure from a
straightforward application of Strickland when counsel’s ineffectiveness
deprives the defendant of a substantive or procedural right to which the law
entitles him.” 59 Fixing on these citations, Thomas argues that the Louisiana
Supreme Court unreasonably applied the law. But while the Louisiana
Supreme Court’s citations to Lockhart were indeed inapt, the court went on to
engage in a “straightforward application of Strickland” that ended in the
determination that Thomas had not been prejudiced, and that he therefore was
not deprived of any Sixth Amendment right. 60 Because “a state court need not
cite or even be aware of [the operative Supreme Court] cases under §
2254(d),” 61 the only question is whether the “reasoning []or the result of the
state-court decision contradicts them.” 62 We now ask whether the Louisiana
Supreme Court unreasonably applied clearly established law in its Strickland
analysis.
                                           B.
      No party disputes—and all tribunals to this litigation have so far
concluded—that Thomas’s counsel was deficient in failing to move to quash the

      58 506 U.S. 364, 369 (1993); see Thomas, 124 So.3d at 1054.
      59 Williams v. Taylor, 529 U.S. 362, 363 (2000).
      60 See Thomas, 124 So.3d at 1056–57.
      61 Richter, 562 U.S. at 98.
      62 Early, 537 U.S. at 8.


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jeopardy-barred charge. The sole disagreement spins on Strickland’s prejudice
prong. As with his Fifth Amendment argument, Thomas relies principally on
the fact that the aggravated burglary charge resulted in a conviction for a
specific offense that he may not have otherwise received. Yet the Louisiana
Supreme Court responded to this argument, and it mirrors the response we
have outlined above: even assuming a reasonable probability of a conviction for
a different offense in the absence of the aggravated burglary charge, Thomas
fails to show a reasonable probability that his final sentence would be any
different, due to his status as a habitual offender. 63
       The operative question is largely a repeat of the one we confronted in the
Fifth Amendment context: is the Louisiana Supreme Court’s interpretation of
the necessary prejudice showing an unreasonable application of Supreme
Court precedent? The only difference is that for his Sixth Amendment claim,
that Supreme Court precedent includes Strickland.
       Thomas claims that a showing of a reasonable probability that a
defendant would not have been convicted of precisely the same offense but for
his counsel’s error amounts to prejudice, pointing to Murphy v. Puckett. 64 But
Murphy cannot bear the weight of Thomas’s argument for at least two reasons.
First, it is Fifth Circuit precedent and not Supreme Court precedent. For the
purposes of AEDPA, only the latter counts as “clearly established” law. 65
Second, and more to the point, Murphy sweeps more narrowly than Thomas
suggests. In Murphy, we did say that a defendant could show Strickland
prejudice when his lawyer failed to “raise what was clearly a valid double



       63  See Thomas, 124 So.3d at 1057 (“Defendant’s prejudice argument is thus wanting
in light of the almost certain chance that he would have received the same habitual offender
sentence, notwithstanding the filing of a timely motion to quash.”).
        64 893 F.2d 94 (1990).
        65 See, e.g., Renico v. Lett, 559 U.S. 766, 778–79 (2010).


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   Case: 17-30178          Document: 00514582991    Page: 17   Date Filed: 08/02/2018


                                     No. 17-30178

jeopardy defense.” 66 But importantly, in Murphy, the defendant had been
convicted in his initial trial, not implicitly acquitted like Thomas. That means
when the state charged him a second time, all lesser included offenses were
jeopardy-barred—there was nothing available for the state to cure the
violation. 67 Murphy specifically distinguished Mathews on that ground; 68 it
does not speak to a situation in which the state secured a conviction for a non-
barred offense after charging a barred one.
      Beyond Murphy—and Mathews—Thomas points to no law suggesting
that the Louisiana Supreme Court’s interpretation of Strickland prejudice is
unreasonable. Once again, AEDPA demands that we overturn a state court’s
decision only if it is beyond the pale of fairminded dispute. The Louisiana
Supreme Court’s decision is not. The Louisiana Supreme Court did not here
unreasonably apply Strickland in holding that Thomas was not prejudiced by
his counsel’s failure to quash his jeopardy-barred charge.
                                          V.
      We reverse the judgment of the district court and deny Thomas’s petition
for habeas relief. Appellant’s Unopposed Second Motion to Expedite Appeal is
denied as moot. The mandate shall issue forthwith.




      66 893 F.2d at 95.
      67 See id. at 97.
      68 See id.


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