Anderson v. Neven

• Citation: 974 F.3d 1119 (Mem)
• Decision Date: 11 September 2020
• Docket Number: No. 18-16502,18-16502
• Parties: Joseph D. ANDERSON, Petitioner-Appellee, v. Dwight NEVEN, Warden; Attorney General for the State of Nevada, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

974 F.3d 1119 (Mem)

Joseph D. ANDERSON, Petitioner-Appellee,

v.Dwight NEVEN, Warden; Attorney General for the State of Nevada, Respondents-Appellants.

No. 18-16502

United States Court of Appeals, Ninth Circuit.

Filed September 11, 2020

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).

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 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 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 "results-driven" decision, through its "layers of irony," "menaces federalism" and was "deeply disrespectful" to our colleagues on the state bench. Dissent at ––––, ––––, ––––, ––––. 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 ––––.

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 –––– – ––––. 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 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, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (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 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 –––– – ––––. 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 ––––, 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 novo review on appeal." Davidson v. State , 124 Nev. 892, 896, 192 P.3d 1185, 1189 (2008). Failure 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." Brown v. Ohio , 432 U.S. 161, 166 [97 S.Ct. 2221, 53 L.Ed.2d 187] (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 [52 S.Ct. 180, 76 L.Ed. 306] (1932) (establishing an elements test for double jeopardy purposes); Jackson v. State , 128 Nev. –––– [598], ––––, 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

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