*

The Honorable Algenon L. Marbley, United States District Judge for the Southern District of

Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0402p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

THOMAS WHITE,

 Petitioner-Appellee,

v.

CAROL R. HOWES,

 Respondent-Appellant.

X

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-

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,

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N

No. 08-1458

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 06-10707—Marianne O. Battani, District Judge.

Submitted: June 19, 2009

Decided and Filed: November 20, 2009 

Before: McKEAGUE and WHITE, Circuit Judges; MARBLEY, District Judge.*

_________________

COUNSEL

ON BRIEF: Brad H. Beaver, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. C. Mark Pickrell, WALLER LANSDEN DORTCH

& DAVIS, LLP, Nashville, Tennessee, for Appellee. 

_________________

OPINION

_________________

WHITE, Circuit Judge. Respondent Carol Howes, Warden of the correctional

facility at which Petitioner Thomas White is serving Michigan state court sentences,

appeals from the district court’s order granting habeas relief. We reverse.

1
No. 08-1458 White v. Howes Page 2

I

This court reviews de novo a district court’s decision to grant a writ of habeas

corpus, as well as the court’s legal conclusions. Ruimveld v. Birkett, 404 F.3d 1006,

1010 (6th Cir. 2005); Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir. 2004). 

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus unless it finds

that the state court’s decision (1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law. . .” or (2) “was based on an unreasonable

determination of the facts. . . .” Armstrong, 372 F.3d at 781, quoting 28 U.S.C.

§ 2254(d)(1). Only the first clause is at issue here.

II

The district court’s Opinion and Order granting in part Petitioner’s Petition for

Writ of Habeas Corpus sets forth the underlying facts and procedural history:

* * * Petitioner was convicted of (1) felon-in-possession

of a firearm, MICH. COMP. LAWS § 750.224F, (2) carrying

a concealed weapon (“CCW”), MICH. COMP. LAWS

§ 750.227, and (3) possession of a firearm during the

commission of a felony-second offense, MICH. COMP.

LAWS § 750.227B, in the Oakland County, Michigan,

Circuit Court. On February 15, 2005, Petitioner pleaded

guilty to the above-stated charges, in addition to the

charge of driving while license suspended. Petitioner

also pleaded guilty to being a habitual offender–fourth

offense.

* * *

In his pleadings, Petitioner challenges his

convictions for both felon-in-possession of a firearm and

felony-firearm. . . .

II. Statement of Facts

Petitioner’s convictions arise from a traffic stop in

the city of Troy, Michigan. After stopping Petitioner for

speeding, the police officers conducted a LEIN check,

which showed that Petitioner’s driver’s license was

suspended. Petitioner was placed under arrest for driving
No. 08-1458 White v. Howes Page 3

with a suspended license. The police then searched

Petitioner’s car and found a loaded shotgun and a loaded

handgun in the trunk.

* * *

On March 2, 2005, the trial judge sentenced

Petitioner to the five years on the felony-firearm-second

offense, to run consecutive to the convictions of felon-inpossession, CCW, and driving while license suspended.

The trial court then imposed a fourteen-months-to-twenty

year term of imprisonment on the felon-in-possession and

carrying a concealed weapon convictions, with ninetyfive (95) days credit as time served for the remaining

conviction. The felon-in-possession, CCW, and drivingwhile-license-suspended sentences were to run concurrent

to each other and consecutive to the felony-firearmsecond-count sentence. 

Following sentencing, Petitioner filed a delayed

application for leave to appeal with the Michigan Court

of Appeals asserting the following:

I. [Petitioner’s] sentence for carrying

a concealed weapon cannot be

consecutive to the sentence for felonyfirearm.

II. [Petitioner’s] convictions of both

felon-in-possession of a firearm and

felony-firearm violate double jeopardy.

On August 29, 2005, the Michigan Court of

Appeals agreed with Petitioner’s first claim, and

remanded the case for a correction of Petitioner’s

sentences, but denied the application for leave to appeal

in all other respects. . . . People v. Thomas Clifford

White, No. 263988 (Mich. Ct. App. Aug. 29, 2005).

Subsequently, Petitioner filed an application for

leave to appeal to the Michigan Supreme Court, raising

claim II from the Michigan Court of Appeals’ direct

appeal, and adding an additional claim regarding the

ineffective assistance of counsel[.]

* * *

The Michigan Supreme Court denied the

application because “we are not persuaded that the

questions presented should be reviewed by this Court.”
No. 08-1458 White v. Howes Page 4

People v. Thomas Clifford White, 474 Mich. 1020, 708

N.W.2d 386 (2006) (Cavanagh and Kelly, JJ., would

grant leave to appeal). Petitioner has not filed a motion

for relief from judgment under M.C.R. 6.500 et. seq. [sic]

Petitioner filed the present habeas petition, on

February 17, 2006, raising the same claims as raised in

the Michigan Supreme Court. (Docket # 1.) . . . . 

A

The district court analyzed the Double Jeopardy issue as follows:

b) Multiple Punishments for an Offense

The doctrine regarding the Double Jeopardy

Clause draws a crucial distinction between multiple

punishments for the same conduct (permissible) and

multiple punishments for the same offense

(impermissible). While the issue can be confusing, it is

clear to this Court that a conviction under both the felon

in possession statute and the felony firearm statute

constitutes multiple punishment for the same offense, and

is therefore in violation of the Double Jeopardy Clause.

It is well established that the Double Jeopardy

Clause does not prohibit a state from defining conduct to

constitute two separate criminal offenses. Missouri v.

Hunter, 459 U.S. 359, 368-69 (1983) (finding that when

“a legislature specifically authorizes cumulative

punishments under two statutes, . . . a court’s task of

statutory construction is at an end and the prosecutor may

seek and the trial court or jury may impose cumulative

punishments under such statutes in a single trial”). . . .

In the case at hand, the Michigan Supreme Court,

applying the expressio unis est exclusio alterius [sic]

canon of construction to the language of the statute, has

concluded that “the Legislature’s intent in drafting the

felony-firearm statute was to provide for an additional

felony charge and sentence whenever a person possessing

a firearm committed a felony other than those four

explicitly enumerated in the felony-firearm statute.”

People v. Mitchell, 575 N.W.2d 283, 285 (1998). . . .

However, a focus on legislative intent is misguided, as

this case does not involve multiple convictions arising out

of the same “conduct,” Hunter, 459 U.S. at 368, but
No. 08-1458 White v. Howes Page 5

instead involves multiple punishments on a single

offense.

The felon in possession statute states, in pertinent part, that:

“(1) Except as provided in subsection

(2), a person convicted of a felony shall

not possess, use, transport, sell, purchase,

carry, ship, receive, or distribute a firearm

in this state [unless certain circumstances

are met].” MICH. COMP. LAWS

§ 750.224f.

The felony-firearm statute states, in pertinent part, that:

“A person who carries or has in his or her

possession a firearm when he or she

commits or attempts to commit a felony,

except a violation of section 223

[unlawful sale of a firearm], section 227

[carrying a concealed weapon], 227a

[unlawful possession by licensee] or 230

[alteration of identifying marks on a

weapon], is guilty of a felony.” MICH.

COMP. LAWS § 750.227b(1).

Under § 750.224f, Petitioner was found guilty

because (1) he was a felon (2) in possession of a firearm.

Under § 750.227b, Petitioner was found guilty because he

was (1) a person in possession of a firearm (2) while

committing a felony (the felony being the same

§ 750.224f). After substituting the elements of

§ 750.224f, we find that Petitioner was convicted under

§ 750.227b for being (1) a person in possession of a

firearm (2) while he was a felon (3) in possession of a

firearm. Considering that (3) is redundant, this is exactly

the same charge as § 750.224f. Therefore, anyone

convicted of “felon in possession” is always guilty of

felony-firearm. This is double punishment at its most

basic, as it constitutes multiple punishments for the same

offense. Pearce, 395 U.S. at 717; Ohio v. Johnson, 467

U.S. 493, 500 (1984) (holding that the double jeopardy

clause protects against “cumulative punishments for

convictions on the same offense”).

Federal court rulings upholding multiple

convictions have involved convictions for felony
No. 08-1458 White v. Howes Page 6

predicate crimes (such as felony murder) and their

underlying felonies. See Hunter, (finding that double

jeopardy does not prohibit a conviction of Missouri’s

“felony with a deadly weapon” statute and the underlying

felony of armed robbery); Brimmage v. Summer, 793 F.2d

1014, 1015 (9th Cir. 1986) (finding that double jeopardy

does not prohibit a conviction of both felony murder and

the underlying felony or robbery). . . . The case at hand,

however, does not involve multiple crimes arising out of

a single act, but rather a double prosecution of the same

offense. That is, the conviction of felon in possession and

felony firearm is not the logical equivalent of a

conviction of robbery and felony murder–it is the logical

equivalent of a conviction of murder and felony murder.

Such a conviction would be entirely circular and would

constitute convicting the defendant of the same crime

twice in violation of the Double Jeopardy Clause. See

United States v. Wilson, 420 U.S. 332, 339 (1975)

(holding that the underlying premise of double jeopardy

was “that a defendant should not be twice tried or

punished for the same offense”). The facts in the case at

hand are distinguishable from the Hunter/Whalen line of

cases, as this case involves multiple punishment of the

same offense, rather than the same conduct. 

B

The issue is clearly drawn. The district court acknowledged the Supreme Court’s

holding in Missouri v. Hunter, 459 U.S. 359, 368-69 (1983), that where “a legislature

specifically authorizes cumulative punishment under two statutes, . . . a court’s task of

statutory construction is at an end and the prosecutor may seek and the trial court or jury

may impose cumulative punishments under such statutes in a single trial.” The Hunter

Court further stated:

With respect to cumulative sentences imposed in a single trial, the

Double Jeopardy Clause does no more than prevent the sentencing court

from prescribing greater punishment than the legislature intended. 

* * *
No. 08-1458 White v. Howes Page 7

1

Blockburger v. United States, 284 U.S. 299 (1932). Under Blockburger, “The test to be applied

to determine whether there are two offenses or only one [and thus whether multiple punishments are

permissible under the double jeopardy clause of the fifth amendment], is whether each provision requires

proof of a fact which the other does not.” Id. at 304.

2

Mitchell addressed the double jeopardy issue in the context of dual convictions of receiving or

concealing a stolen firearm or ammunition and felony-firearm. The court’s analysis focused on what it

determined to be a clear statement of legislature intent to except only the four enumerated felonies from

serving as predicate felonies for the felony-firearm charge. The court’s decision in Mitchell squarely

addresses the controlling issue of legislative intent here. The Michigan Court of Appeals found Mitchell

controlling with respect to the convictions at issue here in People v. Dillard, 631 N.W.2d 755 (2001).

3

Blockburger v. United States, 284 U.S. 299 (1932), and North Carolina v. Pearce, 395 U.S. 711

(1969).

4

Whalen v. United States, 445 U.S. 684 (1980), and Missouri v. Hunter, 459 U.S. 359 (1983).

[] simply because two criminal statutes may be construed to proscribe the

same conduct under the Blockburger[

1

] test does not mean that the

Double Jeopardy Clause precludes the imposition, in a single trial, of

cumulative punishments pursuant to those statutes. . . . 

[Hunter, 459 U.S. at 365-66, 368.] The district court also accurately observed that the

Michigan Supreme Court’s decision in People v. Mitchell, 575 N.W.2d 283 (1998), is

a clear determination by that court that the Michigan Legislature intended to include

felon-in-possession as a predicate felony for purposes of the felony-firearm statute.2

 The

district court further recognized that the Michigan Supreme Court’s determination in

Mitchell is binding on a federal habeas court. See Banner v. Davis, 886 F.2d 777, 780

(noting that “once a state court has determined that the state legislature intended

cumulative punishments, a federal habeas court must defer to that determination”).

The district court continued its inquiry beyond this point, concluding that because

the two statutes do not simply punish the same conduct, but the same exact offense, a

“focus on legislative intent is misguided,” and the Michigan court’s denial of relief

constituted an unreasonable application of federal law. In support of the district court’s

conclusion, White argues that this court must reconcile two different lines of Supreme

Court cases – the Blockburger/Pearce3 line of cases that recognize that a person may not

receive multiple punishments for the same offense, and the Whalen/Hunter4

 line of cases

that appear “on the surface to limit Blockburger and Pearce by transmogrifying the

Blockburger test into a rule of mere statutory construction.” [Appellee Br. p. 9.] White
No. 08-1458 White v. Howes Page 8

5

Most similar situations end with a judicial determination that the legislature did not intend to

authorize multiple punishment. For example, in Ball v. United States, 470 U.S. 856 (1985), the Supreme

Court determined that Congress did not intend that a felon possessing a firearm be convicted under

18 U.S.C. § 922(h)(1), for receiving that firearm, and also under 18 U.S.C. § 1202(a)(1) for possessing the

same weapon. Similarly, in Whalen, 445 U.S. 684 (1980), the Supreme Court held that Congress did not

intend to authorize multiple punishments for killing in the course of a rape and rape. 

6

The cases cited by the district court do not address the issue either. See North Carolina v.

Pearce, 395 U.S. 711, 723 (1969) (holding that neither the Double Jeopardy Clause nor the Equal

Protection Clause imposes an absolute bar to a more severe sentence upon reconviction, thus affirming

defendant’s higher sentence on being reconvicted, after he had been tried and convicted, appealed, and

won a new trial); Ohio v. Johnson, 467 U.S. 493, 499, 500-502 (1984) (where multiple charges were

brought in a single indictment, holding that permitting the State to pursue the greater charges of murder

and aggravated robbery, even after defendant pleaded guilty to the lesser charges of manslaughter and

theft, did not implicate the Double Jeopardy Clause, and noting “[b]ecause the substantive power to

prescribe crimes and determine punishments is vested with the legislature, the question under the Double

Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent,” citing

Missouri v. Hunter); Schiro v. Farley, 510 U.S. 222, 229-30 (1994) (holding that an initial sentencing

proceeding is not a successive prosecution and does not violate the Double Jeopardy Clause where

defendant argued he could not be sentenced to death based on the intentional murder aggravating

circumstance, because the sentencing proceeding amounted to a successive prosecution for intentional

murder); and United States v. Wilson, 420 U.S. 332 (1975) (discussing “the policies underlying the

[Double Jeopardy] Clause in order to determine more precisely the boundaries of the Government’s appeal

rights in criminal cases” and holding that the Clause does not bar a government appeal from a ruling in the

defendant’s favor after a guilty verdict). 

7

Relying on Banner, this court has previously determined, in a Rule 34 case decided by

unpublished opinion without argument, that a defendant’s convictions of felon in possession of a firearm

and felony-firearm did not violate the prohibition against double jeopardy. Rodgers v. Bock, 49 F. App’x

596 (2002).

argues that “the Supreme Court’s decisional language in Whalen and Hunter is

[in]applicable in a situation in which two separate statutes, with separate penalties, each

define the same criminal offense.” [Appellee Br. p. 10.]

The question then is whether the Michigan Legislature can constitutionally

provide that a felon who possesses a firearm shall be convicted of and punished for

violating two criminal statutes: felon in possession of a firearm, and possession of a

firearm while being a felon in possession of a firearm. We have no quarrel with the

district court’s determination that this case presents a rather unusual circumstance in that

the two offenses are really the same offense (one cannot commit felon in possession of

a firearm without simultaneously violating the felony-firearm statute), but the highest

state court has found a legislative intent to punish under both statutes.5 Nevertheless,

White has cited no cases, and we have found none,6 where a state legislature was found

to have violated the double jeopardy bar against multiple punishment by imposing

multiple punishment for the same offense.7

 
No. 08-1458 White v. Howes Page 9

In Banner, 886 F.2d at 780-81, this court addressed the question whether the

Tennessee offenses of aggravated assault, in violation of Tenn. Code § 39-2-101, and

shooting into an occupied dwelling, in violation of Tenn. Code § 39-2-115, are the same

offense for double jeopardy purposes. Like the district court in the instant case, we

recognized that: 

Whether punishments are multiple under the double jeopardy clause is

essentially a question of legislative intent. Id. [Ohio v Johnson, 467 U.S.

493] at 499, 104 S. Ct. at 2540; Missouri v. Hunter, 459 U.S. 359, 366-

68, 103 S. Ct. 673, 678-79, 74 L. Ed. 2d 535 (1983).

When assessing the intent of a state legislature, a federal court is

bound by a state court’s construction of that state’s own statutes. See

Missouri v. Hunter, 459 U.S. at 368, 103 S. Ct. at 679; O’Brien v.

Skinner, 414 U.S. 524, 531, 94 S. Ct. 740, 744, 38 L. Ed. 2d 702 (1974).

Under the double jeopardy clause, when evaluating whether a state

legislature intended to prescribe cumulative punishments for a single

criminal incident, a federal court is bound by a state court’s

determination of the legislature’s intent. See Ohio v. Johnson, 467 U.S.

at 499, 104 S. Ct. at 2541. . . . .

Thus, for purposes of double jeopardy analysis, once a state court

has determined that the state legislature intended cumulative

punishments, a federal habeas court must defer to that determination. See

Smith v. Sowders, [848 F.2d 735 (6th Cir. 1988)], (Kentucky Court of

Appeals determination binding); Hall v. Wainwright, [493 F.2d 37 (5th

Cir. 1974)].

[Banner, 886 F.2d at 780.] Banner had urged this court to apply the Blockburger test to

determine whether the two offenses are one for double jeopardy purposes. The court

declined to do so, noting the Supreme Court’s statement in Ohio v Johnson, 467 U.S. at

493, n.8:

It should be evident from our decision in Missouri v. Hunter,

however, the Blockburger test does not necessarily control the inquiry

into the intent of a state legislature. Even if the crimes are the same

under Blockburger, if it is evident that a state legislature intended to

authorize cumulative punishments, a court’s inquiry is at an end.
No. 08-1458 White v. Howes Page 10

[Banner, 886 F.2d at 780-81.] Nevertheless, the Banner panel continued its inquiry in

light of this court’s en banc decision in Pryor v. Rose, 724 F.2d 525 (6th Cir. 1984),

explaining:

In Pryor, a habeas case involving the question of multiple punishments,

our en banc court independently interpreted the scope of Tennessee

criminal statutes for purposes of double jeopardy analysis. While

indicating that the views of the Tennessee Supreme Court on the double

jeopardy issue were entitled to consideration, id. at 530, relying upon

Whalen v. United States, 445 U.S. 684, 692, 100 S. Ct. 1432, 1438, 63 L.

Ed. 2d 715 (1980), and its application of Blockburger, we held that

multiple punishment was forbidden under the double jeopardy clause. In

evaluating Pryor’s claim and holding that the Tennessee legislature did

not intend cumulative punishments, we stated: “We therefore hold that

the Tennessee legislature has not clearly indicated that consecutive

sentences are proper in the situation presented by this case.” 724 F.2d

at 531 (emphasis supplied). Analysis in prior Tennessee cases, we held,

was “wholly unacceptable under Whalen, which requires that the

legislature ‘clearly indicate’ that consecutive sentences are permissible

for offenses which are the same under the Blockburger test.” Id.

Thus, in evaluating Banner’s claim in light of Blockburger, there

is a tension between: (1) adherence to the multiple punishment

determination made by the Tennessee Court of Criminal Appeals and

Tennessee Supreme Court and (2) application of the Blockburger test

(which is used as a gauge for determining legislative intent) as it was

interpreted in Whalen and applied in Pryor. This ambiguity is underlined

by the Supreme Court’s statement in Ohio v. Johnson that “The

Blockburger test does not necessarily control the inquiry into the intent

of a state legislature.” 467 U.S. at 493 n.8, 104 S. Ct. at 2541 n.8

(emphasis supplied). To resolve this tension, we must determine whether

a state court judgment must establish that the state legislature clearly

intended cumulative punishment before a federal court is bound by that

determination for purposes of double jeopardy analysis, as is apparently

indicated by Pryor.

[Banner, 886 F.2d at 781.] The Banner panel discussed its uncertainty over the scope

of Blockburger, id. at 782, distinguished Pryor as “limited to a narrow situation in which

the state courts below had failed to give a clear expression on the issue of cumulative

punishment,” id., and ultimately concluded that because the Tennessee courts had
No. 08-1458 White v. Howes Page 11

8

The court concluded:

Contrary to Banner’s assertion, then, we may not use the Blockburger test-a rule of

statutory construction for federal statutes-to independently evaluate the scope of the

Tennessee statutes here, the Tennessee Court of Criminal Appeals and Supreme Court

having already held that the legislature intended cumulative punishments. Accordingly,

Banner has not been assessed cumulative punishments in violation of the double

jeopardy clause.

9

In Jones v Thomas, 491 U.S. 376 (1989), the Supreme Court explained:

Our cases establish that in the multiple punishments context, that interest is “limited to

ensuring that the total punishment did not exceed that authorized by the legislature.” United

States v. Halper, 490 U.S. 435, 450, 109 S. Ct. 1892, 1903, 104 L. Ed.2d 487 (1989); see

Johnson, supra, 467 U.S. at 499, 104 S. Ct., at 2540; Missouri v. Hunter, 459 U.S. 359, 366-

367, 103 S. Ct. 673, 678-679, 74 L. Ed.2d 535 (1983). The purpose is to ensure that

sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed

by the legislative branch of government, in which lies the substantive power to define crimes

and prescribe punishments. See, e.g., Johnson, supra, 467 U.S. at 499, 104 S. Ct., at 2540.

In this case, respondent's conviction of both felony murder and attempted robbery gave rise

to a double jeopardy claim only because the Missouri Legislature did not intend to allow

conviction and punishment for both felony murder and the underlying felony. E.g., Hunter,

supra, 459 U.S. at 368, 103 S. Ct., at 679; see also Morgan, supra, 612 S.W.2d, at 1; Olds,

supra, 603 S.W.2d, at 510 (construing Missouri statute).

Given that, in its application to the case before us, “the Double Jeopardy Clause does

no more than prevent the sentencing court from prescribing greater punishment than the

legislature intended,” Hunter, supra, 459 U.S. at 366, 103 S. Ct., at 678, the state-court

remedy [vacating the attempted-robbery conviction and sentence and giving credit against the

felony-murder sentence] fully vindicated respondent’s double jeopardy rights.

already held that the Tennessee Legislature intended cumulative punishments, further

analysis under Blockburger would be improper.8

 In the instant case, although we agree with the district court that the two statutes

at issue here punish the same offense under Blockburger, we can find no basis upon

which to make the distinction drawn by the court in granting the habeas petition. While

this may be the case that prompts the Supreme Court to refine its analysis, the Court has

never held or intimated that the constitutional bar against double jeopardy circumscribes

the legislative prerogative to define crimes and prescribe punishment in the context of

a single prosecution. While no case is directly on point in upholding multiple

punishments under two statutes that define the same offense as these do here, the

Supreme Court has repeatedly described the third aspect of the Double Jeopardy Clause

– the protection against multiple punishments for the same offense imposed in a single

proceeding – as protecting only against the imposition of punishment in excess of that

authorized by the legislature.9

 
No. 08-1458 White v. Howes Page 12

10In Missouri v. Hunter, the Missouri Supreme Court had repeatedly interpreted the Blockburger

test as precluding convictions of armed criminal action and armed robbery based on the same conduct,

notwithstanding that the Missouri legislature had expressed its clear intent that a defendant should be

subject to conviction and sentence under both statutes. The Missouri Supreme Court had stated:

“Until such time as the Supreme Court of the United States declares

clearly and unequivocally that the Double Jeopardy Clause of the

Fifth Amendment of the United States Constitution does not apply to

the legislative branch of government, we cannot do other than what

we perceive to be our duty to refuse to enforce multiple punishments

for the same offense arising out of a single transaction.” 619 S.W.2d,

at 51.

[Hunter, 459 U.S. at 364-65.] The Hunter majority responded:

This view manifests a misreading of our cases on the meaning of the Double Jeopardy

Clause of the Fifth Amendment; we need hardly go so far as suggested to decide that a

legislature constitutionally can prescribe cumulative punishments for violation of its

first-degree robbery statute and its armed criminal action statute.

III

* * * Particularly in light of recent precedents of this Court, it is clear that the Missouri

Supreme Court has misperceived the nature of the Double Jeopardy Clause’s protection

against multiple punishments. With respect to cumulative sentences imposed in a single

trial, the Double Jeopardy Clause does no more than prevent the sentencing court from

prescribing greater punishment than the legislature intended.

In Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed.2d 715

(1980), we addressed the question whether cumulative punishments for the offenses of

rape and of killing the same victim in the perpetration of the crime of rape was contrary

to federal statutory and constitutional law. A divided Court relied on Blockburger v.

United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), in holding that the two

statutes in controversy proscribed the “same” offense. . . . .

In Whalen we also noted that Blockburger established a rule of statutory

construction in these terms:

The assumption underlying the rule is that Congress ordinarily does

not intend to punish the same offense under two different statutes.

Accordingly, where two statutory provisions proscribe the ‘same

offense,’ they are construed not to authorize cumulative punishments

in the absence of a clear indication of contrary legislative intent.” 445 U.S., at 691-692, 100 S. Ct., at 1437-1438 (emphasis added).

We went on to emphasize the qualification on that rule:

“[W]here the offenses are the same ... cumulative sentences are not

permitted, unless elsewhere specially authorized by Congress.” Id.,

at 693, 100 S. Ct., at 1438 (emphasis added).

Indeed, in the face of repeated assertions of this principle in majority opinions

of the Supreme Court, only Justice Marshall (joined by Justice Stevens, in Missouri v.

Hunter, 459 U.S. at 369-71), and Justice Stewart (joined by Justices Marshall and

Stevens, in Albernaz, 450 U.S. at 344), have expressed the view that the

multiple-punishment aspect of the Double Jeopardy Clause limits a

legislature’s power to define offenses and prescribe punishment.10
No. 08-1458 White v. Howes Page 13

It is clear, therefore, that the result in Whalen turned on the fact that the Court

saw no “clear indication of contrary legislative intent.” . . . .

In Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed.2d 275

(1981), we addressed the issue whether a defendant could be cumulatively punished in

a single trial for conspiracy to import marihuana and conspiracy to distribute marihuana.

There, in contrast to Whalen, we concluded that the two statutes did not proscribe the

“same” offense in the sense that “‘each provision requires proof of a fact [that] the other

does not.’” 450 U.S. 339, 101 S. Ct. at 1142, quoting Blockburger, supra, 284 U.S., at

304, 52 S. Ct., at 182. We might well have stopped at that point and upheld the

petitioners' cumulative punishments under the challenged statutes since cumulative

punishment can presumptively be assessed after conviction for two offenses that are not

the “same” under Blockburger. See, e.g., American Tobacco Co. v. United States, 328

U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946). However, we went on to state that

because:

“[t]he Blockburger test is a ‘rule of statutory construction,’ and

because it serves as a means of discerning congressional purpose the

rule should not be controlling where, for example, there is a clear

indication of contrary legislative intent.” Albernaz v. United States,

supra, 450 U.S., at 340, 101 S. Ct., at 1143 (emphasis added).

We found “[n]othing ... in the legislative history which ... discloses an intent contrary

to the presumption which should be accorded to these statutes after application of the

Blockburger test.” Ibid. We concluded our discussion of the impact of clear legislative

intent on the Whalen rule of statutory construction with this language:

[T]he question of what punishments are constitutionally permissible

is no different from the question of what punishment the Legislative

Branch intended to be imposed. Where Congress intended, as it did

here, to impose multiple punishments, imposition of such sentences

does not violate the Constitution.” Id., at 344, 101 S. Ct., at 1145

(emphasis added) (footnote omitted).

Here, the Missouri Supreme Court has construed the two statutes at issue as

defining the same crime. In addition, the Missouri Supreme Court has recognized that

the legislature intended that punishment for violations of the statutes be cumulative. We

are bound to accept the Missouri court's construction of that State’s statutes. See

O’Brien v. Skinner, 414 U.S. 524, 531, 94 S. Ct. 740, 743, 38 L. Ed.2d 702 (1974).

However, we are not bound by the Missouri Supreme Court's legal conclusion that these

two statutes violate the Double Jeopardy Clause, and we reject its legal conclusion.

Our analysis and reasoning in Whalen and Albernaz lead inescapably to the

conclusion that simply because two criminal statutes may be construed to proscribe the

same conduct under the Blockburger test does not mean that the Double Jeopardy

Clause precludes the imposition, in a single trial, of cumulative punishments pursuant

to those statutes. The rule of statutory construction noted in Whalen is not a

constitutional rule requiring courts to negate clearly expressed legislative intent. Thus

far, we have utilized that rule only to limit a federal court's power to impose convictions

and punishments when the will of Congress is not clear. Here, the Missouri Legislature

has made its intent crystal clear. Legislatures, not courts, prescribe the scope of

punishments.

[Hunter, 459 U.S. at 365-68.] Justice Marshall, in dissent, responded:

* * * For the reasons stated below, I do not believe that the phrase “the same offence”

should be interpreted to mean one thing for purposes of the prohibition against multiple

prosecutions and something else for purposes of the prohibition against multiple

punishment.

First-degree robbery and armed criminal action constitute the same offense

under the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
No. 08-1458 White v. Howes Page 14

180, 182, 76 L. Ed. 306 (1932). To punish respondent for first-degree robbery, the State

was not required to prove a single fact in addition to what it had to prove to punish him

for armed criminal action. The punishment imposed for first-degree robbery was not

predicated upon proof of any act, state of mind, or result different from that required to

establish armed criminal action. Respondent was thus punished twice for the elements

of first-degree robbery: once when he was convicted and sentenced for that crime, and

again when he was convicted and sentenced for armed criminal action.

A State has wide latitude to define crimes and to prescribe the punishment for

a given crime. For example, a State is free to prescribe two different punishments (e.g.,

a fine and a prison term) for a single offense. But the Constitution does not permit a

State to punish as two crimes conduct that constitutes only one “offence” within the

meaning of the Double Jeopardy Clause. For whenever a person is subjected to the risk

that he will be convicted of a crime under state law, he is “put in jeopardy of life or

limb.” If the prohibition against being “twice put in jeopardy for “the same offence is

to have any real meaning, a State cannot be allowed to convict a defendant two, three,

or more times simply by enacting separate statutory provisions defining nominally

distinct crimes. If the Double Jeopardy Clause imposed no restrictions on a legislature’s

power to authorize multiple punishment, there would be no limit to the number of

convictions that a State could obtain on the basis of the same act, state of mind, and

result. A State would be free to create substantively identical crimes differing only in

name, or to create a series of greater and lesser-included offenses, with the first crime

a lesser-included offense of the second, the second a lesser-included offense of the third,

and so on.

[Missouri v. Hunter, 459 U.S. at 369-71 (Marshall, J., dissenting, joined by Stevens, J.) footnotes omitted.]

More recently, Justice Scalia has expressed the view that the prohibition against multiple

punishment is not “a free-standing constitutional prohibition implicit in the Double

Jeopardy Clause,” but rather, “an aspect of the Due Process Clause requirement of

legislative authorization.” Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767,

798 (1994) (Scalia, J., dissenting, joined by Thomas, J.); Hudson v. United States, 522

U.S. 93, 106 (1997) (Scalia, J., concurring, joined by Thomas, J.). Neither Justice

Marshall’s nor Justice Scalia’s view has been adopted by a majority of the Court. The

current jurisprudence allows for multiple punishment for the same offense provided the

legislature has clearly indicated its intent to so provide, and recognizes no exception for

necessarily included, or overlapping offenses. 

We therefore REVERSE.