DODGE v. ROBINSON

• Decision Date: 01 November 2010
• Docket Number: No. 10-1189.,10-1189.
• Citation: 625 F.3d 1014
• Parties: Thomas Christopher DODGE, Appellee, v. Elizabeth ROBINSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

625 F.3d 1014

Thomas Christopher DODGE, Appellee,

v.Elizabeth ROBINSON, Appellant.

No. 10-1189.

United States Court of Appeals,Eighth Circuit.

Submitted: Sept. 21, 2010.

Filed: Nov. 1, 2010.

Thomas William Andrews, AAG, argued, Des Moines, IA, for appellant.

Philip B. Mears, argued, Iowa City, IA, for appellee.

Before GRUENDER, BRIGHT, and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

An Iowa jury found Thomas Dodge guilty of two felony drug offenses, and the trial court imposed consecutive sentences totaling 35 years.After an unsuccessful round of direct and post-conviction review before the Iowa courts, Dodge filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his consecutive sentences violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.The district court granted habeas relief on the ground that Dodge's counsel provided ineffective assistance by failing to raise his double-jeopardy claim at trial.Elizabeth Robinson, Chair of the Iowa Board of Parole (“State”), appeals.We reverse for the reasons that follow.

I.BACKGROUND

In 1999, Dodge was charged with multiple drug offenses.The case went to trial, and Dodge was convicted on two counts: manufacture of less than five grams of methamphetamine, in violation of Iowa Code § 124.401(1)(c)(6), and possession of pseudoephedrine with the intent to unlawfully manufacture methamphetamine, in violation of Iowa Code § 124.401(4).The trial court imposed a 20-year sentence for the manufacturing offense and a 15-year sentence for the possession offense, the sentences to be served consecutively.At the sentencing hearing, Dodge made no objection that the imposition of cumulative punishment for the manufacturing and possession counts violated the Double Jeopardy Clause.

On direct appeal, Dodge urged reversal based, in part, on ineffective assistance of counsel.He argued that his trial counsel made eight alleged mistakes, including failing to object to what Dodge labeled the “merger issue.”Possession of pseudoephedrine with the intent to manufacture methamphetamine, Dodge claimed, is a lesser included offense of the manufacture of methamphetamine.Section 701.9 of the Iowa Code requires the merger of lesser included offenses, making cumulative punishment for each offense illegal.This section of the Iowa Code, Dodge argued, essentially codifies the requirements of the Double Jeopardy Clause.Since he was convicted of both the manufacture and possession offenses and given separate, consecutive sentences for each, Dodge argued that his sentence was illegal under Iowa law and that his attorney's failure to object to the illegal sentence constituted ineffective assistance of counsel.

The Iowa Court of Appeals affirmed, denying Dodge's ineffective-assistance claim on the merits.State v. Dodge,No. 99-1503, 2000 WL 1421759(Iowa Ct.App.Sept. 27, 2000)(unpublished).The court examined the intent of the legislature under “the rule of statutory construction articulated in Blockburger v. United States,” in order to determine whether the Iowa legislature intended cumulative punishment for both offenses.Id. at *4.Since “[e]ach offense of which Dodge was convicted contained an element not found in the other,”the court concluded that the legislature had intended cumulative punishment and that, as a result, the sentence did not violate the Double Jeopardy Clause or Iowa's statutory merger rule.Id.Accordingly, the Iowa Court of Appeals held that trial counsel was not ineffective for failing to object to the cumulative punishment.Id.The Iowa Supreme Court denied further review.

Dodge then initiated state post-conviction proceedings in Iowa district court, raising a freestanding double-jeopardy claim and a related ineffective-assistance claim.The court denied post-conviction relief.Dodge v. State,No. PCLA 5247(Iowa D. Lee Cnty. Mar. 20, 2006).With respect to the freestanding double-jeopardy claim, the district court agreed with the Iowa Court of Appeals's conclusion that the manufacturing and possession offenses have distinct elements.Consequently, the Iowa district court held that neither the Double Jeopardy Clause nor the state merger rule had been violated and that counsel had not been ineffective.Id. at 8.

Dodge appealed, and the Iowa Court of Appeals affirmed.Dodge v. State,No. 06-0736, 2007 WL 1062863(Iowa Ct.App.Apr. 11, 2007)(unpublished).The court noted that, on direct review, Dodge had presented an ineffective-assistance claim based on trial counsel's failure to object to the alleged double-jeopardy violation.Since it had rejected Dodge's ineffective-assistance claim because there had been no underlying double-jeopardy violation, the court held that it had already addressed the substance of his freestanding double-jeopardy claim and declined to reconsider it in a post-conviction proceeding.The Iowa Supreme Court again denied further review.

Dodge then filed a pro se petition for habeas corpus under 28 U.S.C. § 2254.Dodge again argued that his cumulative punishment for the manufacturing and possession convictions violated the Double Jeopardy Clause.The district court construed this freestanding double-jeopardy argument as having raised an ineffective- assistance claim and granted habeas relief on that basis.Dodge v. Robinson,No. 07-cv-540(S.D. IowaDec. 29, 2009).The district court held that the manufacturing and possession charges did not contain distinct elements, making cumulative punishment for the two offenses a violation of the Double Jeopardy Clause.The court concluded that trial counsel should have objected to the double-jeopardy violation and that the failure to do so constituted ineffective assistance.

II.DISCUSSION

[1] In reviewing a district court's grant of habeas relief in a § 2254 action, we review its conclusions of law de novo and its factual findings for clear error.Colvin v. Taylor,324 F.3d 583, 586(8th Cir.2003).We review the Iowa court decisions under the deferential standards established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and can only grant habeas relief if those decisions were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”28 U.S.C. § 2254(d).

Dodge argues here, as he did before the district court, that the Iowa trial court violated the Double Jeopardy Clause when it imposed cumulative punishment for his manufacturing and possession offenses.The district court construed this freestanding double-jeopardy claim as an ineffective-assistance-of-counsel claim and granted relief on that basis.We conclude that Dodge is not entitled to habeas relief on either basis.¹We begin with the freestanding double-jeopardy claim.

[2][3][4] The Fifth Amendment's Double Jeopardy Clause provides a criminal defendant with three protections.Bally v. Kemna,65 F.3d 104, 106(8th Cir.1995).The first two guard against successive prosecution, either after an acquittal or after a conviction.Brown v. Ohio,432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187(1977).Neither of these protections is at issue here.Instead, Dodge advances his claim under the Double Jeopardy Clause's protection against cumulative punishment.This double-jeopardy protection limits the judicial branch by “assuring that the [sentencing]court does not exceed its legislative authorization by imposing multiple punishments for the same offense.”Id.In multiple-punishment cases, the court's role is strictly cabined.“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.”Missouri v. Hunter,459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535(1983).

[5][6][7] The third double-jeopardy protection, then, turns on legislative intent.

“[T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.”Albernaz v. United States,450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275(1981).In deciding whether cumulative punishment is intended, a court's “starting point must be the language of the statutes.”Id. at 336, 101 S.Ct. 1137.Where “a legislature specifically authorizes cumulative punishment under two statutes ... a court's task of statutory construction is at an end.”Hunter,459 U.S. at 368-69, 103 S.Ct. 673.However, where, as in this case, neither statute specifically authorizes cumulative punishment, courts generally apply the rule of construction announced in Blockburger v. United States,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306(1932).“[W]here 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, is whether each provision requires proof of a fact which the other does not.”Id. at 304, 52 S.Ct. 180.

[8] It is important not to overstate the Blockburger“same-elements” test's role under this third double-jeopardy protection.It does not limit the legislative branch, which has “the substantive power to define crimes and prescribe punishments.”Jones v. Thomas,491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322(1989).“Where [the legislature] intend[s] ... to impose multiple punishments, imposition of such sentences does not violate the Constitution.”Albernaz,450 U.S. at 344, 101 S.Ct. 1137.Rather, Blockburger is simply a rule of statutory construction.This distinction is critical to the disposition of this case, because where, as here, a defendant challenges cumulative punishment imposed for violations of state law,...