FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSICA WILLIAMS, 

Petitioner-Appellant, No. 04-15465

v. D.C. No.

WARDEN, for the State of Nevada  CV-03-0874-PMP

Women’s Correctional Facility, OPINION Christine Bodo, et al.,

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

February 15, 2005—San Francisco, California

Filed September 7, 2005

Before: Dorothy W. Nelson, William A. Fletcher, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge D. W. Nelson

12579
COUNSEL

John G. Watkins (argued) and Ellen J. Bezian (on the briefs),

Las Vegas, Nevada, for the petitioner-appellant. 

Brian Sandoval, Attorney General of the State of Nevada, and

Victor-Hugo Schulze, II (argued), Deputy Attorney General

for the State of Nevada, Las Vegas, Nevada, for the

respondent-appellee. 

WILLIAMS v. WARDEN 12581
OPINION

D. W. NELSON, Circuit Judge: 

Jessica Williams appeals the district court’s denial of her

habeas corpus petition. The district court concluded that the

Nevada Supreme Court’s rejection of Williams’ double jeopardy claim neither contravened nor unreasonably applied

clearly established federal law, as determined by the United

States Supreme Court. At issue in this appeal is Williams’

asserted simultaneous conviction and acquittal, under two

separate theories, for violating the single offense of “Driving

Under the Influence of Intoxicating Liquor or Controlled or

Prohibited Substance” (“DUI”), pursuant to Nev. Rev. Stat.

§ 484.3795(1) (hereinafter NRS 484.3795(1)). Williams

argues that because she was charged under two subsections of

the statute and the trial court treated the alternate bases of

criminal liability as separate offenses by having the jury

return verdicts on each theory, her acquittal under one theory

barred conviction under the other. We find this argument

without merit and affirm the district court’s denial of the petition. 

I. Factual and Procedural Background

On March 19, 2000, Williams’ van veered off the road and

onto a highway median, killing six teenagers who had been

assigned to a road cleanup crew by Clark County Juvenile

Services. Williams, who was twenty years old at the time, testified that she had been up all night prior to the tragic incident. She admitted that she had smoked marijuana about two

hours before the accident and that she had used the drug “ecstasy” the previous evening. Williams’ car drifted onto the

median after she had apparently fallen asleep at the wheel. At

the time of the accident, Williams had a pipe with marijuana

residue and a plastic bag with marijuana in her car. Blood

tests confirmed the presence of marijuana metabolites in her

system.

12582 WILLIAMS v. WARDEN
Williams was charged, inter alia, with six counts of violating NRS 484.3795(1) for driving under the influence of a controlled substance and proximately causing the deaths of six

persons. The six counts charged her under two subsections of

NRS 484.3795(1). Under subsection (1)(d), in order to convict Williams, the jury needed to find her “under the influence

of a controlled substance . . . .” NRS 484.3795(1)(d). Under

subsection (1)(f), which creates a per se violation of the statute, in order to convict, the jury needed to find that Williams

had “a prohibited substance in [her] blood or urine in an

amount equal to or greater than” the statutory threshold. NRS

484.3795(1)(f). The jury convicted Williams on all six counts

under the per se theory. 

The verdict forms were organized by victim and provided

for a verdict on each of the charged alternative bases for criminal liability. Specifically, the state district court used a dualverdict form, which provided boxes for the jury to check corresponding to guilty and not guilty verdicts for each theory of

the crime. Thus, on each of the six DUI counts, the jury rendered a verdict for each theory of culpability. The jury found

Williams guilty of violating NRS 484.3795(1) as to each of

the victims under the per se theory of subsection (1)(f) and

not guilty as to each of the victims under the “under the influence” theory (hereinafter “impairment theory”) of subsection(1)(d). 

After exhausting her appeals in state court, Williams filed

a petition for habeas corpus in federal district court, claiming

that her convictions violated the Fifth Amendment’s Double

Jeopardy Clause. See U.S. Const. amend. V. The district court

denied her petition, and Williams timely filed this appeal. 

II. Standard of Review

This court reviews the district court’s denial of a 28 U.S.C.

§ 2254 habeas petition de novo. Insyxiengmay v. Morgan, 403

F.3d 657, 665 (9th Cir. 2005). Under the Antiterrorism and

WILLIAMS v. WARDEN 12583
Effective Death Penalty Act of 1996 (“AEDPA”), a habeas

petition stemming from a state court conviction will not be

granted unless the decision is “contrary to” or “an unreasonable application of” established Supreme Court precedent. 28

U.S.C. § 2254(d).1 The federal court must look to the decision

of the highest state court to address the merits of the petitioner’s claim in a reasoned decision. LaJoie v. Thompson, 217

F.3d 663, 669 n.7 (9th Cir. 2000).

III. Discussion

A. The Nevada Supreme Court’s Construction of the Statute

of Conviction

The Nevada Supreme Court concluded that the DUI statute

under which Williams was charged defines alternative means

of committing a single offense and not separate offenses. Williams v. Nevada, 50 P.3d 1116, 1125 (Nev. 2002) (“We conclude that NRS 484.3795(1)(d) and (f) constitute alternative

means of committing an offense . . . .” ).2 While the court

made a legal determination that the two subsections define

alternate bases of a single form of criminal liability, it also

made a factual determination that Williams was acquitted

under one subsection of the statute and convicted under

another because, as Williams argued to the Nevada Supreme

Court, “the [state] district court treated the alternative theories

as separate offenses by asking the jury to return verdicts as to

each theory . . . .” Id. at 1124; see also id. at 1119 (“Williams

was convicted by a jury of six counts of driving with a prohibited substance in the blood or urine . . . . The jury returned not

1AEDPA applies in this case because Williams filed her petition after

the effective date of the act. 

2The Nevada Supreme Court similarly concluded in another case

involving a related DUI statute “ ‘that the [L]egislature intended the subsections of [the DUI] statute to define alternative means of committing a

single offense, not separable offenses permitting a conviction of multiple

counts based on a single act.’ ” Williams, 50 P.3d at 1125 (alterations in

original) (quoting Dossey v. State, 964 P.2d 782, 785 (Nev. 1998)). 

12584 WILLIAMS v. WARDEN
guilty verdicts on the six counts of driving while under the

influence . . . .”). 

We note that it would have been perfectly reasonable for

the Nevada Supreme Court simply to read the “acquittals” on

the impairment theory of DUI from the alternative verdict

forms as either themselves special verdicts or as answers to a

general verdict form with interrogatories. Cf. Nev. R. Civ. P.

49 (explaining the propriety of the use of special verdicts and

general verdicts accompanied by answers to interrogatories in

the context of civil trials); see also Zhang v. Am. Gem Seafoods, Inc. 339 F.3d 1020, 1031 (9th Cir. 2003) (explaining

that “[i]f the jury announces only its ultimate conclusions, it

returns an ordinary general verdict; if it makes factual findings in addition to the ultimate legal conclusions, it returns a

general verdict with interrogatories. If it returns only factual

findings, leaving the court to determine the ultimate legal

result, it returns a special verdict.”). Read this way, the forms

simply ask the jury to explain which theory of culpability

underlies its single verdict. Under such a reading, there would

be no cognizable double jeopardy violation because there

would be only one finding of guilt or innocence.3 Williams

concedes as much. 

We may not, however, substitute our judgment that the

alternative verdict forms are better viewed as akin to special

verdict forms or a general verdict form requesting answers to

3Williams cites a Hawaii Supreme Court case for its holding that a DUI

statute specifying both a per se theory and an impairment theory of criminal liability for DUI “provides two alternative means of proving a single

offense.” 50 P.3d at 1124 n.48 (quoting State v. Dow, 806 P.2d 402, 405

(Haw. 1991)). In that case, the Hawaii Supreme Court treated the trial

court’s prior “acquittal” on the impairment theory alone as a factual finding akin to a jury’s special verdict. Dow, 806 P.2d at 406. The Hawaii

Supreme Court thus did not consider the trial court’s entry of judgment of

acquittal on that theory as a jeopardy terminating event and held that the

defendant’s subsequent conviction for the offense under a per se theory of

DUI did not constitute double jeopardy. Id. at 406-07. 

WILLIAMS v. WARDEN 12585
interrogatories. How to view these forms is a question of fact

for the state courts to resolve in the first instance. Under

AEDPA, this court owes a state court’s findings of fact great

deference. 28 U.S.C. § 2254(e)(1). We must presume the correctness of the state court’s factual findings absent clear and

convincing evidence to the contrary. Id.; see also Davis v.

Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004) (applying the

standards of 28 U.S.C. § 2254). We thus proceed, as the

Nevada Supreme Court did, under the assumption that Williams was convicted under NRS 484.3795(1)(f) (the per se

subsection) and acquitted under NRS 484.3795(1)(d) (the

impairment subsection) for purposes of our analysis of the

double jeopardy question. See Williams, 50 P.3d at 1125 (“We

conclude that . . . appellant’s acquittal under the one subsection and her conviction under the other does not violate the

Double Jeopardy Clause.”) (emphasis added). 

The Nevada Supreme Court indicated that even if the two

subsections had created two offenses under Nevada law, there

would still be no double jeopardy violation. The court

explained that “[u]nder the Blockburger test, each of these

subsections defines a separate offense for purposes of double

jeopardy analysis.” Id. at 1124 (citing Blockburger v. United

States, 284 U.S. 299 (1932)). Under Blockburger, “where the

same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine

whether there are two offenses or only one [for double jeopardy purposes] is whether each provision requires proof of an

additional fact which the other does not.” 284 U.S. at 304.

With its application of Blockburger, the Nevada Supreme

Court made clear that even if the two subsections of Nevada’s

DUI statute are treated as creating facially distinct offenses,

they are separate offenses for double jeopardy purposes

because they fail Blockburger’s “same evidence” test. See

Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978) (characterizing the Blockburger test as the “same evidence” test).

Williams thus faces the following dilemma. Either the two

subsections create two distinct offenses under Nevada law or

12586 WILLIAMS v. WARDEN
they do not. If the two subsections create two offenses, then

there is no double jeopardy violation because the two offenses

fail the same evidence test of Blockburger and thus are not the

same offense for purposes of double jeopardy. See Williams,

50 P.3d at 1124. If, on the other hand, the trial court mistakenly allowed, whether wittingly or not, Williams to be

simultaneously acquitted and convicted of the same offense

under two subsections of the statute, then, as we explain infra,

there is still no double jeopardy violation. Either way, Williams’ double jeopardy challenge fails. Because the Nevada

Supreme Court specifically held that the two subsections of

the DUI statute do not create separate offenses, we turn our

attention away from the court’s Blockburger analysis to the

second horn of the dilemma. 

We pause to note, however, that even if, as Williams

claims, the Nevada Supreme Court erred in finding that

Blockburger was “the appropriate tool” for its double jeopardy analysis, Williams, 50 P.3d at 1124, this error would not

be enough to grant her habeas petition. The application of federal law must be “objectively unreasonable,” not just “incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75

(2003). And it is the state court’s decision, not its reasoning,

that is judged under the “unreasonable application” standard.

See, e.g., Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.

2002) (observing that in habeas proceedings, “we are determining the reasonableness of the state courts’ ‘decision,’ not

grading their papers”) (citing Cruz v. Miller, 255 F.3d 77, 86

(2d Cir. 2001)); id. (“the intricacies of the state court’s analysis need not concern us; what matters is whether the decision

the court reached was contrary to controlling federal law”).

Because the Nevada Supreme Court reached the correct result

on other grounds that neither contravened nor unreasonably

applied established federal law, this court, under AEDPA,

must uphold the Nevada Supreme Court’s decision. 

WILLIAMS v. WARDEN 12587
B. Williams’ Reliance on Supreme Court Precedent in

Defining the Scope of Double Jeopardy’s Protections

[1] The Nevada Supreme Court correctly relied upon

United States v. Halper, 490 U.S. 435, 440 (1989), abrogated

on other grounds by Hudson v. United States, 522 U.S. 93, 96

(1997), when it noted, “the Double Jeopardy Clause protects

against three distinct abuses: a second prosecution for the

same offense after acquittal; a second prosecution for the

same offense after conviction; and multiple punishments for

the same offense.” Williams, 50 P.3d at 1124 (internal citation

and quotation marks omitted). Williams would like to carve

out a fourth abuse against which double jeopardy ostensibly

protects: the simultaneous conviction and acquittal of the

same offense, under different theories, in the same trial by a

single jury. Such an extension would not comport with the

primary purpose of the Double Jeopardy Clause. See Green v.

United States, 355 U.S. 184, 187 (1957) (“The underlying

idea [behind the constitutional prohibition against double

jeopardy] . . . is that the State with all its resources and power

should not be allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting him to

embarrassment, expense and ordeal and compelling him to

live in a continuing state of anxiety and insecurity . . . .”). 

[2] Furthermore, because the acquittal took place at the

same time as the conviction, Williams never had a legitimate

expectation of finality in the verdict of acquittal. See United

States v. DiFrancesco, 449 U.S. 117, 129 (1980) (“An acquittal is accorded special weight. The constitutional protection

against double jeopardy unequivocally prohibits a second trial

following an acquittal, for the public interest in the finality of

criminal judgments is so strong that an acquitted defendant

may not be retried even though the acquittal was based upon

an egregiously erroneous foundation.”) (emphasis added)

(internal quotation marks omitted) (citing Fong Foo v. United

States, 369 U.S. 141, 143 (1962)). 

12588 WILLIAMS v. WARDEN
Williams relies heavily on Sanabria for the proposition that

a single offense cannot be divided into “discrete bases of liability” under different theories and counted as separate

offenses for purposes of double jeopardy. See Sanabria, 437

U.S. at 72. Williams claims that the Nevada Supreme Court

has done what Sanabria has expressly forbidden by treating

NRS 484.3795 subsections (1)(d) and (1)(f) as separate

offenses for purposes of its double jeopardy analysis. 

The Sanabria Court held that Sanabria’s acquittal of the

charge of being connected with an illegal gambling business

on one theory “stands as an absolute bar to any further prosecution for participation in that business” on any other theory.

Sanabria, 437 U.S. at 72-3 (emphasis added). Sanabria thus

protects Williams from further prosecution on the same

offense under a different theory, but it does not apply in this

case, where the two theories of culpability were presented to

the same jury simultaneously. 

[3] Williams also claims that the protections of collateral

estoppel embodied in the Double Jeopardy Clause demand

that her “acquittals” under subsection (1)(d) prevent the government from “relitigating . . . a second time under an alternative theory.” See Ashe v. Swenson, 397 U.S. 436, 445 (1970)

(holding that collateral estoppel is part of the Fifth Amendment’s guarantee against double jeopardy). Williams is correct. This is in fact what Sanabria proscribes. See 437 U.S. at

69. But that is not what happened here. There was one trial

at which the jury rendered its verdicts simultaneously. The

government litigated the case once — not twice — under

alternative theories, as is its right. See Schad v. Arizona, 501

U.S. 624, 631 (1991) (“It may be alleged in a single count that

. . . the defendant committed the offense . . . by one or more

specified means.”) (internal citation and quotations omitted).

Williams’ simultaneous acquittals and convictions thus did

not violate the principle of collateral estoppel embodied in the

Double Jeopardy Clause. See Ashe, 397 U.S. at 442 (defining

collateral estoppel as “the principle that bars relitigation

WILLIAMS v. WARDEN 12589
between the same parties of issues actually determined at a

previous trial”) (emphasis added). 

Williams does not provide any authority for the proposition

that a simultaneous conviction and acquittal on the self-same

offense violates the Double Jeopardy Clause. United States

Supreme Court precedent in fact supports the opposite contention. In Green, the Court held that Green’s conviction on the

lesser included offense of second degree murder constituted

an “implicit acquittal” of the greater murder charge. Green,

355 U.S. at 190 & n.10. The Court held that for double jeopardy purposes the jury should be understood to have “returned

a verdict which expressly read: ‘We find the defendant not

guilty of murder in the first degree but guilty of murder in the

second degree.’ ” Id. at 191. In so doing, the Court sanctioned

a simultaneous acquittal and conviction on the “same

offense.” See Brown v. Ohio, 432 U.S. 161, 166 & n.6 (1977)

(holding that greater and lesser included offenses were the

“same offense” for purposes of double jeopardy). 

[4] The Nevada Supreme Court neither contravened nor

unreasonably applied established federal law when it refused

to expand the protections of double jeopardy to Williams’

case. Moreover, doing so would have thwarted the obvious

intent of the jury, and “no possible unfairness can be found in

a judgment that reflects the jury’s true intent.” United States

v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990) (holding that the

trial court’s correction of verdict from acquittal to guilty in

order to correct a clerical error made by the jury did not violate Double Jeopardy Clause).

IV. Conclusion

Because the Nevada Supreme Court’s decision was consistent with clearly established federal law in holding that Williams has not twice been put in jeopardy for the same offense,

we affirm the district court’s denial of Williams’ petition for

habeas corpus. 

AFFIRMED.

12590 WILLIAMS v. WARDEN