FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH D. ANDERSON,

Petitioner-Appellee,

v.

DWIGHT NEVEN, Warden; 

ATTORNEY GENERAL FOR THE STATE 

OF NEVADA,

Respondents-Appellants.

No. 18-16502

D.C. No.

2:14 cv-2015 

JAD

ORDER

Filed September 11, 2020

Before: Sydney R. Thomas, Chief Judge, and A. Wallace 

Tashima, and Kim McLane Wardlaw, Circuit Judges.

Order;

Statement by Judge Tashima;

Concurrence by Judge Wardlaw;

Dissent by Judge VanDyke
2 ANDERSON V. NEVEN

SUMMARY*

Habeas Corpus

The panel denied a petition for panel rehearing and 

denied on behalf of the court a petition for rehearing en banc.

In a statement respecting the denial of rehearing en banc, 

Judge Tashima wrote that he agrees wholeheartedly with 

Judge Wardlaw’s opinion concurring in the denial of 

rehearing en banc.

Judge Wardlaw, joined by Chief Judge Thomas, 

concurred in the denial of rehearing en banc in this case in 

which the panel, in a memorandum disposition, affirmed the 

district court’s grant of habeas relief because, as the district 

court observed, no reasonable attorney would have advised 

his client to plead guilty and ignore the state court’s clear 

instructions for getting the charge dismissed. Judge 

Wardlaw wrote that the panel’s unpublished decision, which 

had no precedential value, could not disturb the “uniformity 

of [our] court’s decisions” and did not present a “question of

exceptional purpose.” She added a few words in response to 

the dissent’s more egregious mischaracterizations of what 

transpired in this case.

Dissenting from the denial of rehearing en banc Judge 

VanDyke, joined by Judge Bumatay, wrote that the panel’s

decision goes far beyond Congress’s and the Supreme 

Court’s limits on federal habeas review of state court 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ANDERSON V. NEVEN 3

criminal convictions, is deeply disrespectful to our state 

court brethren, usurping their authority and improperly 

criticizing their rationale, all mixed with this court’s own 

legal errors of both federal and state law that can only add 

insult to injury.

COUNSEL

Charles L. Finlayson (argued), Deputy Attorney General; 

Heather D. Procter, Chief Deputy Attorney General; Aaron 

D. Ford, Attorney General; Office of the Attorney General, 

Carson City, Nevada; for Respondents-Appellants.

C.B. Kirschner (argued), Assistant Federal Public Defender; 

Rene L. Valladares, Federal Public Defender; Office of the 

Federal Public Defender, Las Vegas, Nevada; for PetitionerAppellee.

ORDER

The panel has voted to deny Respondents-Appellants’ 

petition for panel rehearing. Chief Judge Thomas and Judge 

Wardlaw have voted to deny the petition for rehearing en 

banc, and Judge Tashima has so recommended.

The full court was advised of the petition for rehearing 

en banc. A judge requested a vote on whether to rehear the 

matter en banc, and the matter failed to receive a majority of 

the votes of the nonrecused active judges in favor of en banc 

consideration. See Fed. R. App. P. 35(a).
4 ANDERSON V. NEVEN

Respondents-Appellants’ petition for panel rehearing 

and rehearing en banc is DENIED.

TASHIMA, Circuit Judge, statement respecting the denial of 

rehearing en banc:

Because, as a senior judge, I am prohibited from voting 

on whether to hear or rehear a case en banc, I file this 

separate statement. For the reasons briefly and succinctly 

stated therein, I agree wholeheartedly with Judge Wardlaw’s 

opinion concurring in the denial of rehearing en banc.

WARDLAW, Circuit Judge, joined by THOMAS, Chief 

Judge, concurring in the denial of rehearing en banc:

This was a straightforward case. Joseph Anderson failed 

to yield at an intersection, resulting in a fatal automobile 

accident. He was charged in Nevada state court with, and 

convicted of, misdemeanor failure to yield. See Nev. Rev. 

Stat. § 484B.257. He was also separately charged with 

driving under the influence (DUI) causing death, an offense 

which requires the State to prove, as an element, that the 

defendant “does any act or neglects any duty imposed by 

law.” Id. § 484C.430(1). The charging document 

specifically relied on Anderson’s failure-to-yield offense to 

establish this element.

The obvious motion to dismiss on double jeopardy 

grounds was filed, which the Nevada state trial court denied 

as premature. However, the court made clear, in ALLCAPS, that the criminal charge against Anderson for DUI 

causing death would be dismissed at trial on double jeopardy 
ANDERSON V. NEVEN 5

grounds if the State did not come up with a predicate offense 

different than the failure to yield conviction. The State failed 

to do so, and nothing in the record suggests that the 

prosecution could have charged or proved an alternative 

theory. Indeed, even before our court, the State offered 

nothing more than vague speculation to explain how it could 

have charged the case differently. But rather than 

proceeding to trial, where the charge was all-but-guaranteed 

to be dismissed, Anderson’s attorney advised him to plead 

guilty on the incorrect assumption that doing so would better 

position him to raise a double jeopardy argument on appeal. 

Anderson accepted his attorney’s guidance. And after 

pleading guilty to a charge that was primed for dismissal, he 

was sentenced to up to twenty years in prison. Anderson’s 

trial counsel later wrote to him, admitting that his advice was 

incorrect and that he should have recommended taking the 

case to trial.

The only claim presented by Anderson’s habeas petition, 

and consequently, the only claim before our panel, was 

whether the attorney’s advice constituted ineffective 

assistance of counsel. The answer is obvious: Yes. As the 

district court correctly observed in granting the habeas 

petition, no reasonable attorney would have advised his 

client to ignore the state court’s clear instructions for getting 

the charge dismissed. We therefore affirmed the district 

court’s grant of habeas relief.

Our panel’s unpublished memorandum disposition had 

no precedential effect. It therefore could not disturb the 

“uniformity of [our] court’s decisions.” Fed. R. App. P. 

35(a) (criteria for en banc rehearing). Nor did this appeal 

present a “question of exceptional importance.” Id. While 

undoubtedly important to the parties, there was nothing to 

distinguish this case from the hundreds of habeas petitions 
6 ANDERSON V. NEVEN

our court adjudicates every year. Thus, it is little surprise 

that a majority of active judges concluded this was not the 

rare case worthy of en banc review.

Yet to read the dissent from denial of rehearing en banc, 

one would think that we mounted a full-on federal takeover 

of the Nevada state courts. In the dissent’s eyes, our “resultsdriven” decision, through its “layers of irony,” “menaces 

federalism” and was “deeply disrespectful” to our colleagues 

on the state bench. Dissent at 12, 28, 39, 40. Indeed, the 

dissent claims that the reasoning behind our unpublished 10-

paragraph disposition leaves readers lucky to escape 

“disaster” or even death by “dysentery.” Dissent at 13.

I will not attempt to refute these histrionics point by 

point. Instead, for the benefit of those who have managed to 

survive their exposure to the panel disposition, I add only a 

few words in response to the dissent’s more egregious 

mischaracterizations of what transpired in this case.

I.

First, the dissent accuses the panel of reaching out to 

decide a double jeopardy claim that Anderson never raised. 

Dissent at 22–26. Not so. It was the State that injected 

double jeopardy into this ineffective assistance of counsel 

case through its argument that Anderson could not show 

prejudice from his attorney’s bad advice because it would 

have been error for the trial court to dismiss the DUI charge 

on double jeopardy grounds. Indeed, the State devoted 

14 pages of its 33-page opening brief to the subject. To 

address this argument, our panel had to determine whether 

the State was correct that the Double Jeopardy Clause did 

not apply on the facts presented. And because the Nevada 

Supreme Court held on direct appeal that Anderson had no 
ANDERSON V. NEVEN 7

viable double jeopardy claim, we necessarily had to 

determine whether that conclusion was proper.

In the panel disposition, we explained that the Nevada 

Supreme Court incorrectly decided a federal constitutional 

question: whether it would violate the Fifth Amendment’s 

Double Jeopardy Clause to try Anderson on the charge of 

DUI causing death after he had already been convicted of 

failure to yield. Our conclusion was a function of the unique 

nature of the offense with which Anderson was charged. 

Under Nevada law, the crime of DUI causing death has as 

an element that the defendant “d[id] any act or neglect[ed] 

any duty imposed by law.” Nev. Rev. Stat. § 484C.430(1). 

To satisfy that element in this case, the criminal information

alleged that Anderson “did neglect his duty imposed by law 

to yield from a stop sign to oncoming traffic.” In other 

words, to establish a necessary element of the crime, the 

prosecution intended to prove that Anderson had committed 

the Nevada offense of failure to yield—the very same 

offense for which Anderson had already been prosecuted and 

convicted.

By requiring the commission of a predicate offense as an 

element of the crime, the Nevada offense of DUI causing 

death operated in the same manner as a charge of felony 

murder. Under the Double Jeopardy Clause, a defendant 

who has been convicted of, for example, felony murder 

based on robbery cannot be separately charged with the same 

underlying robbery, and vice versa. Harris v. Oklahoma, 

433 U.S. 682, 682 (1977) (per curiam) (“When, as here, 

conviction of a greater crime, murder, cannot be had without 

conviction of the lesser crime, robbery with firearms, the 

Double Jeopardy Clause bars prosecution for the lesser 

crime, after conviction of the greater one.”). So too here. 

Having convicted Anderson of failure to yield, the Double 
8 ANDERSON V. NEVEN

Jeopardy Clause barred the State from turning around and 

trying him on a charge of DUI causing death that relied on 

that same failure-to-yield offense to satisfy a necessary 

element of the crime.

Anderson therefore had a viable double jeopardy claim, 

and the state court would have been correct to dismiss the 

charge. Yet by heeding his attorney’s erroneous advice and 

pleading guilty, Anderson was instead sentenced to up to 

twenty years in prison. This was textbook ineffective 

assistance of counsel.1

II.

Next, the dissent asserts that the panel failed to defer to 

the Nevada Supreme Court on a question of state law. 

Dissent at 26–28. This is not true for the simple reason that 

the Nevada Supreme Court never decided a state law 

question. The Nevada Supreme Court’s brief double 

jeopardy discussion, which relied primarily on United States 

Supreme Court cases, did not adjudicate any questions of 

state law but instead (mis)applied federal double jeopardy 

doctrine. One need only read the relevant passage to see if, 

as the dissent posits, Dissent at 28, the Nevada Supreme 

Court was “interpret[ing] . . . the elements of Nevada 

criminal law”:

A claim that a conviction violates the Double 

Jeopardy Clause generally is subject to de 

1 Again, I emphasize that the panel analyzed the double jeopardy 

issue only to respond to the State’s argument that Anderson suffered no 

prejudice from his attorney’s bad advice. It is not clear how the dissent 

thinks the panel could have addressed this argument—to which the State 

devoted almost half of its opening brief—without determining how the 

Double Jeopardy Clause applied in the context of this case.
ANDERSON V. NEVEN 9

novo review on appeal.” Davidson v. State, 

124 Nev. 892, 896, 192 P.3d 1185, 1189 

(2008). Failure to yield is not a lesserincluded offense of DUI causing death 

because each requires proof of an element the 

other does not “notwithstanding a substantial 

overlap in the proof offered to establish the 

crimes.” Brown v. Ohio, 432 U.S. 161, 166 

(1977) (internal quotation omitted). 

Therefore, convictions for both do not violate 

the proscriptions against double jeopardy. 

See Blockburger v. United States, 284 U.S. 

299, 304 (1932) (establishing an elements 

test for double jeopardy purposes); Jackson 

v. State, 128 Nev. —, —, 291 P.3d 1274, 

1278 (2012), petition for cert. filed, 

81 U.S.L.W. (U.S. Mar. 5, 2013) (No. 12-

9118); see also State of Nevada v. Eighth 

Judicial Dist. Court, 116 Nev. 127, 135 & 

136 n. 7, 994 P.2d 692, 697 & n. 7 (2000) 

(DUI and “traffic code infractions occurring 

during the same driving episode” each 

require proof of an element the other does not 

and are not the same offenses under 

Blockburger). We conclude that the district 

court did not err by rejecting Anderson’s 

claim or abuse its discretion by denying his 

motion to dismiss. See Hill v. State, 124 Nev. 

546, 550, 188 P.3d 51, 54 (2008) (we review 

a district court’s denial of a motion to dismiss 

for an abuse of discretion).

Anderson v. State, 129 Nev. 1095, 2013 WL 5338521, at *1 

(2013) (table).
10 ANDERSON V. NEVEN

It is plain from this short paragraph that the Nevada 

Supreme Court was not holding forth on the elements of the 

state failure-to-yield and DUI-causing-death offenses. 

Instead, it opined that the fact that each offense “require[d] 

proof of an element the other does not,” was enough, on its 

own, to establish that there was no double jeopardy 

violation. Id. As the Supreme Court’s decision in Harris

illustrates, however, it was this analysis of federal law that 

was incorrect. The felony murder and robbery with firearms 

charges in Harris also each required proof of an element the 

other does not; felony murder does not require a showing 

that the defendant committed robbery—it can be predicated 

on any number of felonies—and robbery does not require a 

killing. See Harris, 433 U.S. at 682. But the Court 

nevertheless concluded that because, in that case, the 

defendant had been convicted of felony murder predicated 

on robbery with firearms, the Double Jeopardy Clause 

barred a successive prosecution for the same robbery with 

firearms offense. Id.

The Nevada Supreme Court failed to appreciate that the 

same principle applied in this case, because, as charged here, 

the DUI causing death charge had, as an element, that 

Anderson committed the offense of failure to yield (for 

which he had already been separately convicted). This was 

an error of federal law, not state law, and thus the panel 

disposition correctly concluded that our court was not 

required to defer to the state court’s decision.

III.

Finally, the dissent argues that the DUI causing death 

charge did not actually require proof of a predicate criminal 

offense, and that the neglect of legal duty element could—at 

least “possibly”—be satisfied by a showing of simple 

negligence. Dissent at 30. And it advances its own novel 
ANDERSON V. NEVEN 11

theory that because the failure-to-yield offense “imposes two 

separate duties on drivers,” whereas DUI causing death only 

requires the neglect of one duty for its predicate, the two 

crimes cannot overlap to violate the Double Jeopardy 

Clause.

It is enough to say that all of this would be news to the 

State, which has never advanced any such arguments—not 

in the district court, not in its merits briefs on appeal, and not 

in its petition for rehearing en banc. It is quite remarkable 

that at the same time our dissenting colleague accuses the 

panel of showing a lack of respect for state courts, he appears 

to himself assume that Nevada’s own attorneys do not 

understand the meaning of the state’s criminal statutes. In 

any event, we are limited to the arguments raised by the 

parties, and thus the dissent’s sua sponte adventure through 

Nevada law is not before us. United States v. SinenengSmith, 140 S. Ct. 1575, 1579 (2020).

* * *

The panel decision was entirely correct. And a majority 

of active judges decided that our unpublished, nonprecedential disposition was not worthy of en banc review. 

I concur in that decision.

VANDYKE, Circuit Judge, joined by BUMATAY, Circuit 

Judge, dissenting from denial of rehearing en banc:

Federal habeas review of state court criminal convictions 

implicates well-known federalism and comity concerns, 

which is why both Congress and the United States Supreme 

Court have repeatedly stressed the carefully delimited and 

extraordinarily deferential nature of such review. Our 
12 ANDERSON V. NEVEN

court’s decision in Anderson v. Neven, 797 F. App’x 293 

(9th Cir. 2019) goes far beyond those clear limits—in 

multiple ways. The decision is deeply disrespectful to our 

state court brethren, usurping their authority and improperly 

criticizing their rationale, all mixed with our court’s own 

legal errors of both federal and state law that can only add 

insult to injury. Federal habeas relief from state criminal 

convictions exists to remedy only the most “extreme 

malfunctions in the state criminal justice systems.” 

Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation 

omitted). There were no “extreme malfunctions” in 

Anderson’s state court proceedings. But this court’s 

decision multiplies them.

First, and perhaps most troubling, the panel tutored the 

Nevada Supreme Court on the elements of Nevada state 

criminal offenses. Yet as the United States Supreme Court 

has said again and again, not even it may second-guess state 

courts on the elements of state criminal law. And here, the 

Nevada Supreme Court’s broad statement that, in Nevada, 

“[f]ailure to yield is not a lesser-included offense of DUI 

causing death because each requires proof of an element the 

other does not,” Anderson v. State, 129 Nev. 1095, 1095 

(2013), is not only unmistakably clear; it is quite defensible, 

as explained below.

Second, the panel’s conclusion that the Nevada Supreme 

Court erroneously explicated Nevada’s criminal law and, by 

extension, its double jeopardy analysis, completely 

undercuts the panel’s conclusion on the only claim actually 

raised in Anderson’s federal habeas petition: that his trial 

counsel was ineffective because he advised Anderson to 

plead guilty and then raise his double jeopardy claim on 

appeal. If the panel was right that the Nevada Supreme 

Court got the double jeopardy question wrong, then 
ANDERSON V. NEVEN 13

Anderson was prejudiced—not, of course, by his trial 

counsel advising him to present that claim to the Nevada 

Supreme Court—but rather by the Nevada Supreme Court 

getting it wrong. But as Anderson has acknowledged again 

and again, he does not challenge the Nevada Supreme 

Court’s decision in his federal habeas petition. The panel’s 

inappropriate criticism of the Nevada Supreme Court’s 

double jeopardy analysis eviscerates Anderson’s ineffective 

assistance of counsel claim—the only claim properly before 

this court.

These are serious errors, and they are fatal to the panel’s 

conclusion. But the circular inconsistency at the heart of the 

panel’s decision is just the beginning. The panel’s decision, 

short as it is, is predicated on nested, inescapable errors, each 

of which is independently fatal to its conclusion. The 

decision is indefensible and, as described below and 

confirmed by the panel’s concurrence in denial of rehearing 

en banc, trying to justify it is like reading a choose-yourown-adventure novel based on The Oregon Trail where, 

regardless of which path you choose, the story always ends 

in disaster and everyone perishes from dysentery.

Background

1. Facts

High on marijuana, Joseph Anderson ran a stop sign 

causing a collision that killed another driver. On January 19, 

2012, the State charged Anderson with Driving Under the 

Influence of a Controlled Substance thereby Causing Death 

to Another, a felony. The complaint stated that Anderson 

“while under the influence of . . . Marijuana . . . did willfully 

and unlawfully drive . . . neglect[ing] his duty imposed by 

law to yield from a stop sign[,] . . . proximately caus[ing] [] 

Death to another.” The next day, the State charged Anderson 
14 ANDERSON V. NEVEN

in a subsequent complaint with three misdemeanors: Count 

I: Vehicle Entering Intersection Marked “Stop” or “Yield”; 

Count II: Driving without a Valid License; and Count III: 

Security for Payment of Tort Liabilities Required. The State 

filed both complaints in the Pahrump Justice Court on the 

same day, January 23, 2012.1

2. Procedural History

A. Pahrump Justice Court & Nevada District Court

On May 9, 2012, at a pre-trial hearing in justice court for 

both complaints, upon trial counsel’s advice Anderson pled 

no-contest or guilty to all of the misdemeanor charges, 

including the failure-to-yield charge. On June 8, 2012, the 

justice court transferred the remaining felony case to the 

Nevada district court. Pursuant to his plan, counsel then 

filed a motion to dismiss the felony complaint on double 

jeopardy grounds, reasoning that Anderson’s guilty plea to 

the failure-to-yield misdemeanor barred his prosecution for 

the felony DUI charge. The Nevada district court denied the 

motion to dismiss, explaining that “it is possible for a 

defendant to meet the legal duty element of the statute [DUI 

causing death] by violating any number of rules of the road.” 

But the court emphasized (literally) that “IF THE STATE IS 

UNABLE TO PROVE ANY VIOLATION OF LEGAL 

DUTY AT TRIAL OTHER THAN THE FAILURE TO 

STOP, THEN THIS CASE WILL BE DISMISSED.” 

1 The misdemeanor and felony charges could not be tried together 

under Nevada law. Nev. Rev. Stat. Ann. § 4.370(3) (“Justice courts have 

jurisdiction of all misdemeanors and no other criminal offenses except 

as otherwise provided by specific statute.”). But felonies may begin 

adjudication in a justice court as “justice courts have jurisdiction to 

conduct preliminary examinations in felony complaints.” Koller v. State, 

130 P.3d 653, 656 (Nev. 2006).
ANDERSON V. NEVEN 15

Taking the hint, trial counsel entered a conditional guilty 

plea agreement with the State on the felony DUI charge that 

preserved “the right to appeal this Court’s ruling on the 

jeopardy issue” and dismissed two other charges—a felony 

and a misdemeanor—“as a consequence of [the] 

negotiation.” The Nevada district court then entered 

judgment convicting Anderson of the felony DUI charge, 

and sentenced Anderson to a maximum term of 240 months. 

Trial counsel appealed the conviction on double jeopardy 

grounds to the Nevada Supreme Court.

B. Nevada Supreme Court Decision on the Merits

On appeal, the Nevada Supreme Court examined 

whether the misdemeanor and felony statutes contained the 

same elements and whether the Nevada Legislature intended 

to prohibit concurrent convictions of both statutes. 

Anderson, 129 Nev. at 1095. The Nevada Supreme Court 

concluded, consistent with precedent, that the Legislature 

intended that “convictions for each of the [“rules of the road” 

and “driving while intoxicated”] offenses [were] not [] 

impermissibly redundant.” Nevada v. Eighth Jud. Dist. Ct., 

994 P.2d 692, 699 (Nev. 2000)), see Anderson, 129 Nev. 

at 1095. Then applying the elements test from Blockburger 

v. United States, 284 U.S. 299, 304 (1932) to the specifics of 

the Nevada laws before it, the Nevada Supreme Court held 

“[f]ailure to yield is not a lesser-included offense of DUI 

causing death because each requires proof of an element the 

other does not . . . .” Anderson, 129 Nev. at 1095.

Anderson’s trial counsel filed a petition for rehearing, 

which the Nevada Supreme Court denied.
16 ANDERSON V. NEVEN

C. Anderson’s State Habeas Petition

Anderson then filed a petition for Writ of Habeas Corpus 

in the Nevada district court alleging ineffective assistance of 

counsel. Anderson alleged he did not receive effective 

assistance during the plea process because his trial counsel 

recommended a guilty plea rather than going to trial, 

rendering Anderson’s double jeopardy claim premature.2 

Anderson also alleged that trial counsel was ineffective 

because he did not familiarize himself with relevant law 

when counsel recommended Anderson pursue a double 

jeopardy strategy. Anderson reasoned that because the 

Nevada Supreme Court ultimately held that the failure-toyield misdemeanor was not a lesser-included offense of the 

felony DUI, “NO Double Jeopardy claim was available” 

from the outset. Notably, Anderson did not challenge the 

Nevada Supreme Court’s merits ruling. The Nevada district 

court denied Anderson’s petition.

i. Nevada Supreme Court Adjudication

Anderson appealed the denial of his habeas petition to 

the Nevada Supreme Court. That court evaluated the 

petition under Strickland v. Washington, which required 

Anderson to demonstrate that his trial counsel’s performance 

was unreasonably deficient resulting in prejudice such that, 

but for counsel’s errors, the result for Anderson would have 

been different. 466 U.S. 668, 697 (1984). The Nevada 

Supreme Court determined Anderson did not allege either 

that he rejected a more favorable plea offer or that he would 

2 This argument was factually inconsistent with that actually 

happened in Anderson’s case. The Nevada Supreme Court did not hold 

that Anderson’s claim was premature; quite the opposite, it treated 

Anderson’s double jeopardy claim as ripe and addressed it on the merits. 

See Anderson, 129 Nev. at 1095.
ANDERSON V. NEVEN 17

have insisted on going to trial were it not for his trial 

counsel’s advice. The court further noted that Anderson 

received as a benefit of his guilty plea the dismissal of two 

other cases distinct from the failure-to-yield misdemeanor 

complaint and DUI causing death felony complaint. The 

Nevada Supreme Court declined to find Anderson’s trial 

counsel ineffective and affirmed the lower court’s denial of 

his petition.

D. Federal District Court Habeas Petition

Anderson then filed a federal habeas petition again 

alleging ineffective assistance of counsel on the same 

grounds as his failed state habeas petition. This time, 

however, Anderson added that he would have insisted on a 

trial—and not entered a plea deal—if he had known the 

double jeopardy defense was unavailable. He still did not 

challenge the Nevada Supreme Court’s decision to reject his 

double jeopardy defense.

The federal district court noted that to succeed, Anderson 

must prove that the Nevada Supreme Court’s denial of his 

state habeas petition was objectively unreasonable and 

clearly erroneous. The district court also acknowledged that 

the Nevada Supreme Court used the correct Strickland

standard in evaluating the petition.

In analyzing Anderson’s claim, the district court 

considered it significant that, after the Nevada Supreme 

Court rejected Anderson’s double jeopardy appeal, his trial 

counsel wrote Anderson “admitting that he gave poor advice 

and that he regretted it.” Opining that that “going to trial was 

clearly the more advantageous choice,” the district court 

explained that Anderson “was woefully let down when his 

conviction was affirmed because—not surprisingly—

jeopardy had not yet attached.”
18 ANDERSON V. NEVEN

The district court summarily rejected that Anderson 

received any real benefit from the State’s dismissal of the 

two charges, as Anderson likely would have been “grant[ed] 

probation” for one, while the other simply “was a 

misdemeanor.” The district court ultimately concluded that 

the Nevada Supreme Court’s review of Anderson’s state 

habeas petition had “failed to consider the likelihood of 

success that Anderson would have had at trial on his doublejeopardy defense,” (emphasis added), and granted habeas

relief on Anderson’s ineffective assistance claim.

i. Second Federal District Court Order

The State asked the district court to reconsider its order, 

explaining that, contrary to the basis for the court’s grant of 

habeas relief, the Nevada Supreme Court actually had

addressed Anderson’s double jeopardy claim on the merits, 

and rejected it. This did not sway the district court, but the 

court did attempt to shore up its factually flawed basis for 

habeas relief in an order denying reconsideration.

In this second order, the district court concluded that the 

Nevada Supreme Court’s double jeopardy ruling applied 

United States Supreme Court precedent incorrectly, but in so 

arguing the district court incorrectly relied on language from 

a plurality decision it referred to as “the Court in Dixon.” 

The district court further acknowledged that “there is a 

possibility that the State would have been able to prove a 

different predicate offense [at trial] for the felony DUI 

charge against Anderson,” but because “there is also [a] 

probability that it would not have been able to do so[,] that 

is sufficient to undermine the outcome of Anderson’s 

criminal proceeding.” The court afforded no deference to 

Anderson’s counsel’s weighing of these possibilities, or 

Strickland’s admonition that petitioners claiming ineffective 

assistance of counsel must show that the likelihood of a 
ANDERSON V. NEVEN 19

different result is “substantial.” Rather, the court concluded 

that the “reasonable probability” that Anderson might have 

prevailed at trial on a double jeopardy defense was enough 

to establish prejudice to Anderson under Strickland. The 

district court did not attempt to connect its new analysis to 

the actual arguments in Anderson’s federal habeas petition, 

and “decline[ed] to reconsider [its] prior ruling.”

E. Ninth Circuit Panel Memorandum Disposition

The State appealed to this court. The panel, like the 

federal district court, did not address the habeas claims as 

actually pled by Anderson—that jeopardy did not attach or 

that trial counsel should have known the Nevada Supreme 

Court would not find a double jeopardy violation. Instead, 

the panel joined the district court in concluding that the 

outcome on the double jeopardy claim likely would have 

changed under Nevada law if Anderson had gone to trial on 

the felony DUI charge. See Anderson v. Neven, 797 F. 

App’x 293, 294–95 (9th Cir. 2019).

The panel explained that although “the ‘does any act or 

neglects any duty imposed by law’ element of the DUI 

offense” could have been established “through some 

predicate other than the failure-to-yield offense . . . . the 

record is devoid of any evidence regarding any other theory 

upon which the State could have satisfied this element at 

trial.” Id. Thus, “[t]he mere possibility that the State may 

have been able to rely on an alternate predicate offense does 

not negate Anderson’s showing of likely success” in his 

double jeopardy defense at or after trial. Id. at 295. 

Accordingly, the panel agreed with the federal district court 

that “no reasonable attorney would have advised Anderson” 

to plead guilty rather than go to trial because there was “a 

high likelihood that he would have been able to raise the 
20 ANDERSON V. NEVEN

double-jeopardy defense successfully” at trial. Id. at 294 

(alteration marks omitted).

The obvious problem with the panel’s conclusion that 

Anderson might have prevailed in the state trial court on his 

double jeopardy claim is, “so what?” Given the Nevada 

Supreme Court’s rejection of Anderson’s double jeopardy 

claim on direct appeal, there is no reason to think the Nevada 

Supreme Court would have reached a different conclusion if

Anderson had gone to trial, if the prosecution had not 

amended the charges (a big “if,” given the trial court’s 

emphatic direction to do so), and if Anderson had prevailed 

in trial court. But the panel had a response: the Nevada 

Supreme Court was wrong. More specifically, the Nevada 

Supreme Court’s explanation about Nevada law was right 

generally, but not “in Anderson’s particular case.” Id.

at 295 (emphasis in original).

What the panel never explained is why this matters for 

the only claim that Anderson made in this federal habeas 

action: ineffective assistance of trial counsel. The panel’s 

inquiry into the merits of the Nevada Supreme Court’s 

decision resulted in an irreconcilable contradiction in its 

Strickland analysis: that trial counsel was ineffective 

because he predicted the Nevada Supreme Court would rule 

precisely the way the panel believed it should have ruled. 

Under the panel’s theory of the case, what actually stymied 

trial counsel’s able strategy was not any error by counsel, but 

rather the Nevada Supreme Court’s misunderstanding of 

how Nevada law worked “in Anderson’s particular case.” 

Id. (emphasis in original). And Anderson never challenged 

the Nevada Supreme Court’s decision. This inherent 

contradiction is never addressed in the panel’s decision or its 

concurrence in denial of rehearing en banc.
ANDERSON V. NEVEN 21

Standard of Review

State supreme courts are the final arbiters of state law. 

Principles of federalism dictate that federal courts overturn 

state court convictions under AEDPA only in the limited 

instances where the adjudicated outcome “resulted in a 

decision that was contrary to, or involved unreasonable 

application of, clearly established Federal law.” 28 U.S.C. 

§ 2254(d)(1). Supreme Court precedent should not be 

framed at “a high level of generality” such that “a lower 

federal court could transform even the most imaginative 

extension of existing case law into ‘clearly established 

Federal law.’” Nevada v. Jackson, 569 U.S. 505, 512 (2013) 

(citation omitted). For a State court decision to be 

overturned, it must arrive at a conclusion “opposite to that 

reached by [the Supreme] Court on a question of law or if 

the state court decides a case differently than [the Supreme] 

Court has on a set of materially indistinguishable facts.” 

Williams v. Taylor, 529 U.S. 362, 413 (2000). Even if a 

Supreme Court case addressed a similar topic or type of case, 

the step of extending a rationale drawn from Supreme Court 

precedent means such rationale, “by definition,” is not 

clearly established law. White v. Woodall, 572 U.S. 415, 426 

(2014). State courts need not cite or be aware Supreme 

Court precedent to ensure deferential review. Early v. 

Packer, 537 U.S. 3, 8 (2003).

When evaluating ineffective assistance claims, counsel’s 

deficient performance must result in errors so far below the 

objective standard of reasonableness that, but for the errors, 

the outcome would have been different. Strickland, 466 U.S. 

at 687; Hill v. Lockhart, 474 U.S. 52, 59 (1985). The 

petitioner must prove “both deficient performance and 

prejudice.” Bell v. Cone, 535 U.S. 685, 695 (2002). Given 

that “[v]irtually every act or omission of counsel” would 
22 ANDERSON V. NEVEN

have “some conceivable effect on the outcome of the 

proceeding,” Strickland, 466 U.S. at 693, petitioners must 

show the likelihood of a different result is “substantial.” Id. 

at 682. In weighing counsel’s performance against an 

adverse court ruling, “[t]he assessment of prejudice should 

proceed on the assumption that the decisionmaker is 

reasonably, conscientiously, and impartially applying the 

standards that govern the decision.” Id. at 695. Ultimately, 

given “the strong presumption of competence,” review is 

“doubly deferential” when a counsel’s performance is 

viewed through the lens of both 28 U.S.C. § 2254(d) and 

Strickland. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) 

(citation omitted).

We review grants of habeas relief de novo. Bradford v. 

Davis, 923 F.3d 599, 609 (2019).

Discussion

1. The State-Law Basis for the Nevada Supreme 

Court’s Double Jeopardy Decision Binds this Court 

and Does Not Violate Federal Law.

The panel’s disposition and concurrence compound 

errors. We’ll start with the obvious ones.

A. The Panel Improperly Addressed an Unraised 

Claim.

The panel should not have addressed the merits of the 

Nevada Supreme Court’s double jeopardy decision because 

Joseph Anderson never challenged it. See Cacoperdo v. 

Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (observing 

the court cannot resolve claims that were not properly raised 

in the habeas petition). Anderson conceded in his appellate 

brief that “[t]he Nevada Supreme Court’s ruling on the direct 
ANDERSON V. NEVEN 23

appeal is irrelevant.” As recently as oral argument, 

Anderson’s appellate counsel continued to deny that

Anderson was challenging the merits of the underlying state 

supreme court decision. That eliminated our ability to grant 

habeas relief predicated on that decision being incorrect. 

Paradis v. Arave, 20 F.3d 950, 954 (9th Cir. 1994) 

(“Because this issue was not presented to the district court, 

we will not review it.”). That should have made this an easy 

case—for the State.

But the panel’s disposition turns on a sua sponte

perceived error in the Nevada Supreme Court’s double 

jeopardy decision, even though neither Anderson nor the 

State actually presented that issue. The panel in its 

concurrence now claims that “[i]t was the State that injected 

double jeopardy into this ineffective assistance of counsel 

case . . . .” Not true. The State did discuss the Nevada 

Supreme Court’s merits decision in its appellate briefing for 

two reasons, but neither justified the panel raising and 

deciding a claim that, even in its concurrence, the panel 

acknowledges was never “before our panel.”

First, the State had to address the Nevada Supreme 

Court’s double jeopardy decision because the federal district 

court erroneously held in its first order that Anderson’s 

guilty plea resulted in a premature double jeopardy claim. 

The State explained in its briefing for rehearing before the 

district court that this was simply factually wrong because 

the Nevada Supreme Court squarely addressed (and 

rejected) Anderson’s double jeopardy claim on the merits. 

Anderson, 129 Nev. at 1095.

Second, the State discussed the Nevada Supreme Court’s 

double jeopardy decision to rebut the district court’s false 

notion that Anderson was prejudiced by his counsel not 

going to trial because Anderson may have prevailed on his 
24 ANDERSON V. NEVEN

double jeopardy claim in trial court. Because the Nevada 

Supreme Court rejected Anderson’s double jeopardy claim 

on the merits, it would have made no difference if he had 

gone to trial and the trial court had dismissed his claim on 

double jeopardy grounds. If that had happened, the Nevada 

Supreme Court would have just reversed the trial court’s 

double jeopardy ruling and sent the case back. As the State 

explained in its opening brief:

Even if Anderson had proceeded to trial on 

his felony DUI claim causing death, he would 

not have prevailed on his double jeopardy 

challenge on appeal. The federal district 

court’s assumption that going to trial would 

have created a complete defense to DUI 

causing death or resulted in a different 

analysis from the Nevada Supreme Court was 

wrong. . . . [A]s the Nevada Supreme Court 

specifically rejected the double jeopardy 

challenge on Anderson’s direct appeal, there 

would have been no difference on appeal had 

Anderson proceeded to trial rather than enter 

his guilty plea.”

Contrary to the panel’s revisionist history, the State 

didn’t bring the Nevada Supreme Court’s merits decision 

into the case; the federal district court did, when it 

(1) erroneously ruled that Anderson’s guilty plea resulted in 

a premature double jeopardy claim, and (2) erroneously 

focused on whether Anderson might have prevailed on his 

double jeopardy claim in trial court. The State can hardly 

be faulted for responding and explaining why the district 

court’s decision was wrong. The State’s reliance on the 

Nevada Supreme Court’s double jeopardy decision as 

dooming Anderson’s chances of prevailing on that claim, 
ANDERSON V. NEVEN 25

whether or not he went to trial, cannot be weaponized as a 

legitimate reason for the panel to attack that decision when 

Anderson himself didn’t. See Ahlswede v. Wolff, 720 F.2d 

1108, 1109 (9th Cir. 1983) (per curiam) (“[T]he only issues 

properly before this court are those in the petition.”).3

Moreover, even if the State had gratuitously and 

needlessly defended the merits of the Nevada Supreme 

Court’s double jeopardy decision, that still would not justify 

the panel reaching out to decide an issue that Anderson never 

raised. Federal habeas review requires the petitioner to 

frame the review through his claims. See Mannes v. 

Gillespie, 967 F.2d 1310, 1316 n.6 (9th Cir. 1992) (declining 

3 While the panel’s concurrence erroneously claims that it was “the 

State that injected double jeopardy into this . . . case,” it is notable that 

neither the panel’s original decision nor its concurrence ever confronts 

the actual reason the State talked about the Nevada Supreme Court’s 

double jeopardy decision. That argument, block-quoted above, was that 

whether he went to trial or pled-and-immediately-appealed, Anderson’s 

double jeopardy claim was ultimately doomed because the Nevada 

Supreme Court was going to reject Anderson’s double jeopardy claim on 

the merits either way. As the State explained, “[t]he Nevada Supreme 

Court’s [double jeopardy] determination was not premised specifically 

upon a conviction pursuant to a guilty plea versus a jury trial.” Thus, 

Anderson could not have been prejudiced by his counsel’s decision to 

appeal immediately versus go to trial—the ultimate result at the Nevada 

Supreme Court would be identical.

Like Anderson, the State’s arguments to the panel all assumed that 

the merits of the Nevada Supreme Court’s decision were not on the table 

because Anderson never challenged that decision. As the State 

explained in its opening brief to the panel: “[T]he Nevada Supreme Court 

rejected Anderson’s argument that the two crimes violated double 

jeopardy. Anderson conceded the truth of this point in . . . his federal 

habeas petition . . . .” It was only the panel that felt the need to reach out 

and “explain[] that the Nevada Supreme Court incorrectly decided” 

Anderson’s double jeopardy claim in order to justify its decision.
26 ANDERSON V. NEVEN

to consider on appeal a double jeopardy claim that the 

petitioner did not raise in the original state or federal habeas 

petition). As the Supreme Court has made clear, we are 

barred from reviewing claims not included in a federal 

habeas petition. See, e.g., Davila v. Davis, 137 S. Ct. 2058, 

2064 (2017); O’Sullivan v. Boerckel, 526 U.S. 838, 842 

(1999); Coleman v. Thompson, 501 U.S. 722, 745 (1991). 

The panel had no business reaching out and deciding 

whether the Nevada Supreme Court’s double jeopardy 

decision was correct.4

B. Nevada’s State Law Adjudication Binds this 

Court.

Both the federal district court and the panel concluded 

that the Nevada Supreme Court erred in rejecting 

Anderson’s double jeopardy claim and relied on that 

conclusion in granting habeas relief. But the Nevada 

Supreme Court’s adjudication of Anderson’s double 

jeopardy appeal on the merits may not be challenged by this 

court, for two independent reasons.

4 The panel asks in footnote 1 of its concurrence how it “could have 

addressed . . . the State’s argument that Anderson suffered no prejudice” 

without reaching and effectively overruling the Nevada Supreme Court’s 

Double Jeopardy decision. Easy. It could have simply explained that 

Anderson’s counsel could not possibly have been ineffective for 

presenting a question to the Nevada Supreme Court that (in the panel’s 

mistaken view) the Nevada Supreme Court should have decided in 

Anderson’s favor. And because the only claim Anderson raised in this 

court was an ineffective assistance of counsel claim, his federal habeas 

claim necessarily fails. Perhaps what the panel is really asking in its 

footnote is how could it possibly have granted habeas relief to Anderson 

without sua sponte reaching out and effectively overturning the Nevada 

Supreme Court’s decision (that Anderson never challenged). Now that, 

admittedly, is a harder question.
ANDERSON V. NEVEN 27

First, the panel attempted to conjure fault with the 

Nevada Supreme Court’s decision by recasting it. The 

Nevada Supreme Court held that “[f]ailure to yield is not a 

lesser-included offense of DUI causing death because each 

requires proof of an element the other does not 

‘notwithstanding a substantial overlap in the proof offered to 

establish the crimes.’” Anderson, 129 Nev. at 1095 (quoting 

Brown v. Ohio, 432 U.S. 161, 166 (1977)). On its face, this 

is a broad and categorical statement. Yet the panel read this 

as merely a general statement that “failure to yield is not 

always a lesser included offense.” Anderson, 797 F. App’x 

at 295 (emphasis added). But that’s not what the Nevada 

Supreme Court said, and it is quite telling that the panel 

found it necessary to add words to the Nevada Supreme 

Court’s ruling to justify the panel’s forced misreading of it. 

By virtue of its reframed holding and the fact the Nevada 

Supreme Court did not include the phrase “in this case” in 

its explication of Nevada law, see Anderson, 129 Nev. 

at 1095, the panel strangely infers that the Nevada Supreme 

Court must have been speaking about statutory elements 

generally, rather than Anderson’s specifically pled offenses. 

Anderson, 797 F. App’x at 295.5

5 Stranger still, the panel in its concurrence now argues that it its 

original decision could not have “failed to defer to the Nevada Supreme 

Court on a question of state law” because “the Nevada Supreme Court 

never decided a state law question.” That’s not what the panel said in its 

original decision, which states: “we defer to the Nevada Supreme Court’s 

conclusion that, as a matter of state law, failure to yield is not always a 

lesser included offense of DUI causing death.” Anderson, 797 F. App’x 

at 295 (emphasis added). The Nevada Supreme Court’s categorical 

statement that “[f]ailure to yield is not a lesser-included offense of DUI 

causing death because each requires an element the other does not,” 

Anderson, 129 Nev. at 1095 (emphasis added), cannot reasonably be read 

as anything other than “holding forth on the elements of the state failure-
28 ANDERSON V. NEVEN

Only through that results-driven reading can the panel 

then claim that it is properly deferring to the Nevada 

Supreme Court’s binding interpretation of state law, while 

rejecting the state court’s supposed misapplication of clearly 

established federal law. This is a deliberately strained 

misreading of the Nevada Supreme Court’s description of 

Nevada law. Beyond the fact that one would normally read 

a court’s legal analysis in the context of the issues actually 

before the court (here, Anderson’s double jeopardy claim), 

the decision’s text expressly applies the Nevada Supreme 

Court’s reasoning to determine “the district court did not err 

by rejecting Anderson’s claim.” Anderson, 129 Nev. at 1095 

(emphasis added).

Second, even if Anderson had challenged the Nevada 

Supreme Court’s double jeopardy ruling, that ruling turned 

squarely on that court’s interpretation of the elements of 

Nevada criminal law, which, like it or not, is binding on this 

court. Perhaps because lower federal courts seem to forget 

this, the Supreme Court has had to repeatedly “reemphasize 

that it is not the province of a federal habeas court to 

reexamine state-court determinations on state-law 

questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).6

to-yield and DUI-causing-death offenses.” The panel was right before it 

was wrong.

6 See also Brown v. Ohio, 432 U.S. 161, 167 (1977) (“Ohio courts 

‘have the final authority to interpret . . . that State’s legislation.’”); 

Illinois v. Vitale, 447 U.S. 410, 416 (1980) (“We accept, as we must, the 

Supreme Court of Illinois’ identification of the elements of the offenses 

involved here.”); Missouri v. Hunter, 459 U.S. 359, 368 (1983) (“We are 

bound to accept the Missouri court’s construction of that State’s 

statutes.”); Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“We accept, as 

we must, the Ohio Supreme Court’s determination that the Ohio 
ANDERSON V. NEVEN 29

Even if we were allowed to slip off our federal robes and 

try on those of a state supreme court justice, the Nevada 

Supreme Court’s explication of Nevada’s criminal statutes 

was far from clearly wrong. The Nevada Supreme Court’s 

decision, like many state court decisions affirming criminal 

convictions, is not long on analysis or explanation. It need 

not be. Even so, on close inspection there is a good basis for 

thinking that the panel’s forbidden frolic with state criminal 

law interpretation managed to get both state and federal law 

wrong.7

We start with the text of Nevada’s DUI causing death 

statute. Section 484C.430(1) of Nevada’s revised statutes 

makes it a felony if someone drives while under the 

influence of a prohibited substance and

Legislature did not intend cumulative punishment for the two pairs of 

crimes involved here.”).

7 The panel’s concurrence criticizes this next portion of the dissent 

as “advanc[ing] its own novel theory” of Nevada state law, and responds 

that “[i]t is enough to say that . . . the State . . . never advanced any such 

arguments.” Of course it didn’t. Neither Anderson nor the State ever 

challenged the Nevada Supreme Court’s double jeopardy analysis, so 

there was obviously no reason for the State (or anyone else) to defend it. 

It is only because the panel in its opinion sua sponte attacked the Nevada 

Supreme Court’s analysis that the issue has even become relevant. 

Having embarked on its own “sua sponte adventure through Nevada 

law” by expressly basing its decision on the conclusion that the Nevada 

Supreme Court erred on its explication of the elements of Nevada law 

“in Anderson’s particular case,” Anderson, 797 F. Appx. at 295 

(emphasis in original), the panel cannot now so easily ignore the disaster 

that awaits at the end of its own chosen chapter. If the panel wants to 

avoid such unpleasant surprises, it probably shouldn’t reach out and 

decide issues not raised by the parties—especially issues of state law 

where the state’s highest court has authoritatively spoken.
30 ANDERSON V. NEVEN

. . . does any act or neglects any duty 

imposed by law while driving or in actual 

physical control of any vehicle on or off the 

highways of this State, if the act or neglect 

of duty proximately causes the death of, or 

substantial bodily harm to, another person

. . . .

Nev. Rev. Stat. Ann. § 484C.430(1) (emphasis added). 

While Anderson and the panel insist on speaking of this 

language as requiring a “predicate offense,” the statutory 

language does not actually require a predicate criminal

offense to be convicted of DUI causing death.8 It only 

requires that the defendant “neglects any duty imposed by 

law” and that that “neglect of duty proximately causes the 

death of . . . another person.” Id. The Nevada Supreme 

Court has never said this element requires a “neglect of duty 

imposed by criminal law.” To the contrary, the Nevada 

Supreme Court in discussing Nevada’s DUI causing death 

statute has elsewhere characterized the “act or neglect of 

duty” required by that statute as possibly being simply a 

“negligent act” committed while driving intoxicated. See 

State v. Johnston, 563 P.2d 1147, 1148 (Nev. 1977).

8 This error continues to plague the panel’s concurrence, where the 

panel claims in the very first paragraph (and continues the theme 

throughout) that Anderson’s DUI-causing-death “charging document 

specifically relied on Anderson’s failure-to-yield offense to establish” 

the neglect-of-duty element. No. The actual charging document 

mentioned neither Nevada Revised Statute § 484B.257 (Nevada’s 

failure-to-yield statute) nor Anderson’s failure-to-yield criminal 

complaint or conviction. Nor did it say anything about a “predicate 

offense”—criminal or otherwise. It simply said that Anderson “did 

neglect his duty imposed by law to yield from a stop sign to oncoming 

traffic.”
ANDERSON V. NEVEN 31

Moving to the text of the “Failure to Yield” statute, it 

requires Nevada drivers to “stop . . . at a clearly marked stop 

line . . . . [and] yield the right-of-way.” Nev. Rev. Stat. Ann. 

§ 484B.257(1). By both its plain text and Nevada precedent, 

the statute imposes two separate duties on drivers. Kerr v. 

Mills, 483 P.2d 902, 904 (Nev. 1971) (“NRS 484.319 [now 

NRS 484B.257] imposed . . . a duty to stop ‘at the entrance’ 

to [the] road, and to yield the right of way to other vehicles 

‘approaching so closely on such through highway as to 

constitute an immediate hazard.’”) (emphasis added) 

(citation omitted). Failure to fulfill either duty would 

constitute misdemeanor Failure to Yield. Id. at 904 (“it was 

the disfavored driver’s duty ‘not only to stop at the stop sign, 

but also to look carefully’ and permit the favored driver to 

pass”) (citation omitted).

Because misdemeanor Failure to Yield requires the 

neglect of only one of its two discrete duties, and DUI 

Causing Death only requires the neglect of one duty for its 

predicate, the elements of the two crimes would not perfectly 

overlap to create a double jeopardy issue where the charged 

individual violated both duties. In Anderson’s case, 

Anderson both failed to stop at the stop sign and failed to 

give the right of way to oncoming traffic. The State could 

charge Anderson with neglecting either as a predicate for 

Failure to Yield, while using the other as the predicate 

“neglect of duty” for DUI Causing Death. By neglecting 

both duties under Failure to Yield, Anderson ensured in his 

specific case that two different duties could be applied under 

each charge for Failure to Yield and DUI Causing Death—

eliminating any double jeopardy claim.

This interpretation is completely consistent with the 

Nevada Supreme Court’s short but categorical statement in 

Anderson’s direct appeal that “[f]ailure to yield is not a 
32 ANDERSON V. NEVEN

lesser-included offense of DUI causing death because each 

requires proof of an element the other does not 

‘notwithstanding a substantial overlap in the proof offered to 

establish the crimes.’” Anderson, 129 Nev. at 1095 

(emphasis added and citation omitted). It is also consistent 

with Nevada’s legislative intent, as authoritatively described 

by the Nevada Supreme Court elsewhere and cited in 

Anderson. See Jenkins v. Fourth Jud. Dist. Ct., 849 P.2d 

1055, 1057 (Nev. 1993) (observing “a clear legislative intent 

to prevent defendants from escaping a conviction for felony 

DUI through pleading to a ‘lesser charge’”) (citation 

omitted).

C. Under AEDPA, We Must Defer to the Nevada 

Supreme Court’s Interpretation of Federal Law 

Unless Inconsistent with Clearly Established 

Supreme Court Precedent.

In order to grant habeas relief to Anderson, the panel had 

to conclude the Nevada Supreme Court decision was “an 

unreasonable application of[] clearly established Federal 

law.” 28 U.S.C. § 2254(d)(1). It is worth pausing for a 

moment to reemphasize that this next point only matters if 

(a) you indulge the fiction that the correctness of the Nevada 

Supreme Court’s double jeopardy ruling was properly before 

the panel, and (b) you believe the Nevada Supreme Court’s 

explication of the elements of the two crimes at issue in 

Anderson was unrelated to the actual case before it. Only 

adventurers who theoretically overcame those predicate 

obstacles need grapple with this additional flaw in the 

panel’s decision.

Under AEDPA review, “clearly established Federal law” 

is supplied by Supreme Court precedent—not circuit court 

precedent—that has “squarely addresse[d]” the specific 

issue and provided a “clear answer to the question 
ANDERSON V. NEVEN 33

presented,” Wright v. Van Patten, 552 U.S. 120, 125–26 

(2008) (per curiam), based on “materially indistinguishable 

facts.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003). Here, 

the panel block-quoted a Seventh Circuit case that “relied on 

a trio of Supreme Court cases.” Anderson, 797 F. App’x 

at 295, 295 n.1 (quoting United States v. Hatchett, 245 F.3d 

625, 637 (7th Cir. 2001)). The panel presumably did not 

apply a “clearly established” rationale if it needed to rely 

upon an out-of-circuit case that cobbled together multiple 

Supreme Court cases (and separate opinions) to devise a 

rule. See Woodall, 572 U.S. at 426. “Circuit precedent 

cannot ‘refine or sharpen a general principle of Supreme 

Court jurisprudence into a specific legal rule that [the 

Supreme] Court has not announced.’” Lopez v. Smith, 

574 U.S. 1, 7 (2014) (citation omitted) (reversing because 

the Ninth Circuit applied its own precedent in affirming the 

grant of a federal habeas petition).

The reason the panel was required to quote an out-ofcircuit decision to support its ruling, and not the “trio of 

Supreme Court cases” directly, is because the Supreme 

Court’s fractured double jeopardy jurisprudence in this area 

cannot be fairly described as “clearly established.”9 The 

most recent Supreme Court case addressing double jeopardy 

in the context of separate prosecutions is United States v. 

Dixon, 509 U.S. 688 (1993). In it, Justice Scalia wrote a 

four-vote plurality arguing that courts should apply the 

Blockburger test to the crimes as charged (finding a double 

jeopardy violation), id. at 700, while Chief Justice 

9 “The Supreme Court has repeatedly warned against applying its 

precedents at too high a level of generality in determining whether a state 

court’s decision unreasonably applied clearly established federal law.” 

Turner v. McEwen, 819 F.3d 1171, 1178 (9th Cir. 2016); see also 

Jackson, 569 U.S. at 512.
34 ANDERSON V. NEVEN

Rehnquist’s three-vote concurrence reasoned the Court 

should only compare the elements of the crimes (finding no 

double jeopardy violation). Id. at 714 (Rehnquist, C.J., 

concurring in part and dissenting in part).10 This, of course, 

only underscores why the panel’s decision in this case is 

particularly concerning—if the Supreme Court itself has 

been unable to provide a majority opinion that “squarely 

addresses” how double jeopardy should be applied to 

claimed “lesser-included” crimes in this context, then it is 

not appropriate for the Ninth Circuit to tell a state supreme 

court it has violated “clearly established” Supreme Court 

precedent.

The panel was wrong to reach an issue never raised by 

Anderson’s federal habeas petition, and it decided wrongly 

what it wrongly reached. I hope it is not lost that all this 

wrongness happened in the context of AEDPA—where we

are not supposed to overturn a state criminal conviction 

unless the state court was “clearly” wrong.

2. The Panel Erred in Finding Ineffective Assistance of 

Counsel.

Recognizing that the Nevada Supreme Court’s 

interpretation of Nevada criminal law is binding on this 

court, and that Anderson’s double jeopardy claim was 

ultimately destined to fail regardless, Anderson’s only 

habeas claim properly before this court—his ineffective 

assistance of counsel claim—evaporates. Because he never 

10 Worse, since Hatchett the Seventh Circuit has itself 

acknowledged that “[t]he ‘lesser-included-offense’ analysis in Dixon

included five separate opinions, all reaching different conclusions as to 

how Blockburger should apply . . . . we don’t see any federal law as 

being clearly established from that five-way divide.” Boyd v. Boughton, 

798 F.3d 490, 500 (7th Cir. 2015) (emphasis added).
ANDERSON V. NEVEN 35

challenged the Nevada Supreme Court’s double jeopardy 

ruling, Anderson created for himself a classic catch-22: if the 

Nevada Supreme Court’s double jeopardy ruling was wrong, 

his trial counsel’s decision to plead guilty and immediately 

appeal the double jeopardy issue was hardly ineffective. On 

the other hand, if the Nevada Supreme Court’s double 

jeopardy ruling was correct and Anderson was ultimately 

bound to lose his double jeopardy argument on appeal 

whether he went to trial or not, then by pleading guilty he at 

least bought dismissal of two of the State’s claims.

Anderson’s catch-22 lurks beneath the surface of every 

available path in the panel’s chose-your-own-adventure 

saga, and is the reason why all paths end badly. It is the 

reason why the panel felt compelled, in its short 

memorandum disposition, to try to escape this dilemma by 

concluding the Nevada Supreme Court was wrong.11

A. Analyzing Trial Counsel’s Actions

Anderson claims, and the federal district court and panel 

agreed, that the state district court’s denial of his pre-plea 

motion to dismiss his felony DUI charge foreshadowed a 

successful double jeopardy claim. See Anderson, 797 F. 

App’x at 294–95. But Anderson’s trial counsel also

recognized that the State was on notice, via all-caps lettering 

in the Nevada district court’s opinion, that “IF THE STATE 

IS UNABLE TO PROVE ANY VIOLATION OF LEGAL 

11 The panel seems to have recognized this problem at oral argument 

when it asked: “Why didn’t you file, in your habeas petition, another 

claim challenging the Nevada Supreme Court’s assertion that double 

jeopardy didn’t apply?” See Anderson v. Neven, No. 18-16502, UNITED 

STATES COURTS FOR THE NINTH CIRCUIT (Nov. 13, 2019), 

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000016

553 (17:33–17:46).
36 ANDERSON V. NEVEN

DUTY AT TRIAL OTHER THAN THE FAILURE TO 

STOP, THEN THIS CASE WILL BE DISMISSED.” 

(emphasis added). Counsel likewise knew, as the State 

alleged in multiple filings, that the State could change (and, 

per the Nevada district court, should change, the specific 

neglect-of-duty element charged before or during trial. See

Nev. Rev. Stat. Ann. § 484C.430(1) (requiring “any act” or 

any other neglected duty). If this had happened, Anderson 

risked a jury conviction for all charged offenses and losing 

the ability to appeal any plausible double jeopardy claim. 

Counsel wisely urged Anderson to plead no-contest to the 

failure-to-yield charge and subsequently plead guilty to the 

DUI felony charge, “locking in” the predicate offense such 

that the State could not change the underlying type of 

violation of legal duty. This gave Anderson his best chance 

at getting his felony DUI charge dismissed on double 

jeopardy grounds. It was a good strategy—probably the best 

available under the circumstances.

Justifiably hoping to benefit from the Nevada district 

court’s explicit warning to the State, Anderson’s trial 

counsel “locked in” the basis for his double jeopardy claim 

and appealed to the Nevada Supreme Court. That court 

directly considered and rejected his double jeopardy 

argument based on its interpretation of the elements of the 

two state criminal offenses charged. Anderson, 129 Nev. 

at 1095. Given the Nevada Supreme Court’s binding 

interpretation of the elements of failure-to-yield and DUI 

causing death, there is no way Anderson could have 

prevailed on his double jeopardy claim. He either would 

have pled, appealed, and lost, or he would have gone to trial, 

perhaps won a dismissal (if the State didn’t change its 

complaint), but lost on appeal anyway. Either way, his 

double jeopardy claim was destined to fail under Nevada 

law.
ANDERSON V. NEVEN 37

Anderson’s trial counsel was only even potentially 

ineffective if the Nevada Supreme Court’s double jeopardy 

decision is wrong and reviewable. Of course, when the 

Nevada Supreme Court addressed the merits of Anderson’s 

double jeopardy claim, it found, as a matter of state law, that 

“[f]ailure to yield [was] not a lesser included offense of DUI 

causing death . . . .” Anderson, 129 Nev. at 1095. But that 

doesn’t mean Anderson’s counsel was ineffective—it just 

means he rolled the dice on Nevada law and didn’t get the 

interpretation of state law he was hoping for. Even if the 

Nevada Supreme Court erred (as a matter of state or federal 

law), he wasn’t ineffective. The Nevada Supreme Court’s 

double jeopardy decision (which Anderson doesn’t 

challenge), not his trial counsel’s strategy, is what deprived 

Anderson of victory. Whether the Nevada Supreme Court 

was right or wrong, the central claim of Anderson’s petition 

fails: his trial counsel made a legitimate and understandable 

litigation decision and there was no prejudice from counsel’s 

actions under either outcome. Richter, 562 U.S. at 104.

B. Applying Strickland

The panel ignored the “strong presumption” that trial 

counsel’s actions reflect “tactics rather than ‘sheer neglect.’” 

Richter, 562 U.S. at 109 (citation omitted). Counsel’s 

actions here, calibrated by both the Nevada district court’s 

ruling and his understanding of the law, were not neglectful. 

Strickland, 466 U.S. at 687. The only way Anderson could 

have been prejudiced by trial counsel’s plead-then-appeal 

strategy would be if counsel had waived the right to appeal 

on double jeopardy grounds or the Nevada Supreme Court 

had denied the double jeopardy claim because jeopardy had 

not yet attached. But the record is clear: trial counsel 

preserved the right to appeal, the Nevada Supreme Court 

believed jeopardy had attached, and addressed his claim on 
38 ANDERSON V. NEVEN

the merits (just not the way Anderson would have liked). 

Anderson, 129 Nev. at 1095. To hold that “no reasonable 

attorney would have advised Anderson in this manner,” 

Anderson, 797 F. App’x at 294, is based on at least two false 

assumptions.

The first is that the ultimate result would have been 

different if Anderson had gone to trial, notwithstanding the 

Nevada Supreme Court’s categorical denial of Anderson’s 

double jeopardy claim. The panel’s and federal district 

court’s fixation on how the state trial court would have 

handled the double jeopardy claim absent the plea is 

inexplicably myopic. Anderson’s double jeopardy claim 

ultimately rose or fell based on how the Nevada Supreme 

Court interpreted the elements of Nevada law, not the state 

trial court.

The panel decision’s second false assumption is that the 

prosecution would have ignored the pointed, emphatic 

rhetoric from the Nevada district court and blithely pursued 

a course destined to fail in the lower court (but, as we all now 

know, destined to prevail on appeal). Again, the only bases 

for that assumption are a lack of imagination and a 

misreading of the DUI causing death statute. To his credit, 

Anderson’s trial counsel did not lack imagination, and took 

swift action to “lock in” failure-to-yield as the element, thus 

ensuring the best double jeopardy case possible for 

Anderson on appeal to the Nevada Supreme Court. As the 

Supreme Court has repeated, our “adversary system requires 

deference to counsel’s informed decisions [and] strategic 

choices must be respected.” Strickland, 466 U.S. at 681; see 

also Richter, 562 U.S. at 109 (“The Court of Appeals erred 

in dismissing strategic considerations like these as an 

inaccurate account of counsel’s actual thinking.”).
ANDERSON V. NEVEN 39

CONCLUSION

Sometimes tension exists between justice for criminal 

defendants and adherence to the strict limits of federal 

habeas review of state court convictions. This is not one of 

those cases. Joseph Anderson killed someone after running 

a stop sign while driving under the influence of marijuana. 

He got very effective assistance from his trial counsel, the 

Nevada Supreme Court made its ruling on the elements of 

Nevada criminal law, and the federal courts granted federal 

habeas relief. Only the latter is clearly wrong, and this court 

should have taken this case en banc to fix it.

The panel’s concurrence in denial of rehearing en banc 

essentially asks why I’m making such a big deal since its 

decision was just an “unpublished memorandum 

disposition” and doesn’t “present a ‘question of exceptional 

importance.’” Respectfully, federalism is exceptionally 

important. So too is strict adherence to our limited review 

of state court convictions. Our court ventured out to decide 

a claim Anderson never raised, casually rejected the state 

court’s binding interpretation of state law, and now has 

doggedly refused to fix its own mistakes. That should be 

quite troubling to everyone—not least to our court. If, as the 

panel claims, this case is no different than “the hundreds of 

habeas petitions our court adjudicates every year,” then yes, 

we have, in fact, “mounted a full-on federal takeover of the” 

state criminal justice systems in our circuit, and we need to 

stop.

* * *

This case has layers of irony. The panel accused the 

Nevada Supreme Court of muddling its double jeopardy 

analysis, but in doing so it muddled its own ineffective 

assistance of counsel analysis. The panel sought to correct 
40 ANDERSON V. NEVEN

the Nevada Supreme Court’s misguided interpretation of the 

elements of Nevada criminal law, and in doing so incorrectly 

read Nevada’s criminal statutes and incorrectly ignored 

well-established federal authority recognizing state courts as 

the final arbiters of state law. And the panel concluded that 

“no reasonable attorney would have advised Anderson” to 

plead guilty and appeal his double jeopardy claim, Anderson, 

797 F. App’x at 294, when arguably no fully informed, 

reasonable attorney would have advised otherwise.

Ironies notwithstanding, “I doubt the Supreme Court will 

be amused.” Tarango v. McDaniel, 837 F.3d 936, 954 n.3 

(9th Cir. 2016) (Rawlinson, J., dissenting). At least I hope 

not. This court menaces federalism when it cavalierly 

vacates state court convictions that aren’t even close calls 

under AEDPA. This case is a particularly glaring example 

of that. The Supreme Court has provided us “many rebukes” 

for such behavior. Id. Because this deeply flawed decision 

presented an easy opportunity to fix our most egregious 

habeas overreaching, and we failed to do so, I respectfully 

dissent.