Ricky Langley v. Howard Prince, Warden

Case: 16-30486 Document: 00514985887 Page: 1 Date Filed: 06/06/2019

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-30486 FILED
June 6, 2019
Lyle W. Cayce
RICKY LANGLEY, Clerk

Petitioner-Appellant,

v.

HOWARD PRINCE, WARDEN, ELAYN HUNT CORRECTIONAL CENTER,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Louisiana

Before STEWART, Chief Judge, JONES, SMITH, WIENER, DENNIS, OWEN,
ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA,
WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge, joined by JONES, SMITH, OWEN,
SOUTHWICK, WILLETT, HO, DUNCAN, and ENGELHARDT, Circuit
Judges:

A Louisiana jury convicted Ricky Langley of second-degree murder. The
state court overturned that conviction on direct appeal. So the State retried
Langley and re-convicted him. Langley now seeks federal habeas relief. He
argues his prior conviction should be construed as an implicit acquittal that
bars the re-conviction and allows him to walk free. We disagree.
 Case: 16-30486 Document: 00514985887 Page: 2 Date Filed: 06/06/2019

No. 16-30486

I.
While on parole for a prior child-molestation conviction, Ricky Langley
choked a six-year-old boy into unconsciousness and then, to ensure the child
was dead, strangled him with a ligature and shoved a sock into the child’s
mouth. Langley stuffed the boy’s corpse in a bedroom closet and lied to the
child’s mother when she came looking for her son. Langley then waived his
Miranda rights and repeatedly confessed on video to molesting and killing the
boy. Police found the child’s body, wearing a t-shirt soaked in Langley’s semen,
in the closet where Langley left him.
The State of Louisiana thrice tried and thrice convicted Langley for his
heinous crime. The second and third trials lie at the heart of this case. But
we explain all three for the sake of completeness.
Langley I. A Louisiana jury unanimously convicted Langley of first-
degree murder and sentenced him to death. For reasons unrelated to this case,
Langley’s first conviction was remanded on direct appeal in state court. See
State v. Langley (Langley I ), 711 So. 2d 651, 675 (La. 1998) (per curiam)
(granting rehearing in part and remanding); see also State v. Langley, 813 So.
2d 356, 358 (La. 2002) (quashing the indictment due to improper selection of
the grand jury foreperson). So the State retried him for murder.
Langley II. At the second trial, the jury unanimously convicted Langley
of murder once again. This time, however, the jury issued a verdict of second-
degree murder. For reasons again unrelated to the appeal before us today, the
second jury’s verdict was also overturned on direct appeal in state court. See
State v. Langley (Langley II ), 896 So. 2d 200, 201 (La. Ct. App. 2004). So the
State again retried Langley for murder.
Langley III. Before the third trial, however, the Louisiana Supreme
Court held the second-degree murder conviction precluded the State from

2
 Case: 16-30486 Document: 00514985887 Page: 3 Date Filed: 06/06/2019

No. 16-30486

retrying Langley for first-degree murder. See State v. Langley (Langley III ),
958 So. 2d 1160, 1170 (La. 2007). The court based its holding on state law.
Ibid. (citing LA. CONST. art. I, § 17(A); LA. STAT. ANN. § 14:30.1; LA. CODE CRIM.
PROC. ANN. arts. 598(A), 782(A), 841(A)). But its holding accords with
longstanding double jeopardy law because, “[h]istorically, courts have treated
greater and lesser-included offenses as the same offense for double jeopardy
purposes, so a conviction on one normally precludes a later trial on the other.”
Currier v. Virginia, 138 S. Ct. 2144, 2150 (2018).
Therefore, at Langley’s third trial, the State charged him only with
second-degree murder. Having lost before two juries, Langley decided to try
his luck with a bench trial the third time around. Given the facts and his
repeated videotaped confessions, however, the trial judge convicted him of
second-degree murder. The court found as a matter of fact that Langley had
specific intent to kill because, after their “sexual encounter,” Langley thought
death would “do this little boy a favor.” The court again sentenced Langley to
life in prison.
Langley again appealed. This time he argued the Double Jeopardy
Clause should have prohibited the State from retrying him for second-degree
specific-intent murder. That result is compelled, Langley said, by Ashe v.
Swenson, 397 U.S. 436 (1970). Ashe identified a “collateral estoppel”
“ingredient” in the Double Jeopardy Clause and held it precludes a retrial for
any issue necessarily determined by a jury’s general verdict of acquittal. See
id. at 442–45. Of course, Langley was not acquitted of second-degree murder
in Langley II; he was convicted. Langley nonetheless argued Ashe should be
extended to his facts. Langley reasoned the jury—which simply adjudged him
“GUILTY,” without specifying why—logically must have based its verdict on
second-degree felony murder. If so, Langley hypothesized, the Langley II jury

3
 Case: 16-30486 Document: 00514985887 Page: 4 Date Filed: 06/06/2019

No. 16-30486

could’ve determined he lacked specific intent. And if all these hypotheses and
deductions are true, Langley concluded, the State should be barred from
retrying him for any offense that has specific intent as an element—including
second-degree specific-intent murder.
The state courts rejected Langley’s effort to extend Ashe. See State v.
Langley (Langley IV ), 61 So. 3d 747, 756–58 (La. Ct. App. 2011), cert. denied,
78 So. 3d 139 (La. 2012). The state appellate court first evaluated the record
“to discern which facts were ‘necessarily determined’ ” by the jury’s guilty
verdict in Langley II. 61 So. 3d at 757. The only way to determine what the
jury actually and necessarily determined is to evaluate what the jury actually
and necessarily did—namely, convict Langley of second-degree murder.
Although the state court recognized it was “possible that the jury verdict was
based on a jury finding under the felony-murder rule,” the court noted it was
equally likely the jury based its verdict on second-degree specific-intent
murder as an alternative to first-degree murder. Ibid. It was also possible the
jury convicted Langley of second-degree murder as a “compromise verdict”—
that is, a verdict that did not reflect the jury’s actual findings, but instead
represented a compromise punishment of life in prison that was palatable to
all jurors. Ibid. Because the jury could have reached its second-degree murder
conviction without necessarily finding Langley lacked specific intent to kill, the
Louisiana court held Langley “ha[d] not carried his burden of proving that the
element of specific intent was actually decided [in his favor] in the previous
trial” to preclude the relitigation of that issue in the third trial. Id. at 758.
Langley filed a federal habeas petition. The district court denied it. See
Langley v. Prince, No. 2:13-cv-2780, 2016 WL 1383466, at *1 (W.D. La. Apr. 6,
2016). A panel of our Court, however, reversed and concluded not only that
the state court’s opinion was wrong, but that it was “objectively unreasonable.”

4
 Case: 16-30486 Document: 00514985887 Page: 5 Date Filed: 06/06/2019

No. 16-30486

Langley v. Prince, 890 F.3d 504, 521–23 (5th Cir. 2018). That decision would’ve
allowed Langley to walk free. But we vacated it upon granting rehearing en
banc.
II.
This case implicates constitutional law, the equitable doctrine of
estoppel, and statutory text. We address each in turn. We first explain the
common-law and constitutional background of the Double Jeopardy Clause.
Then we explain how Ashe and collateral estoppel fit into that background.
Lastly, we explain how our application of Ashe is affected by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214.
A.
The Double Jeopardy Clause originates in the common-law plea autrefois
acquit, meaning “prior acquittal,” and the related plea autrefois convict. As Sir
Edward Coke described it, “the maxim of the common law is, that the life of a
man shall not be twice . . . put in jeopardy for one and the same offence, and
that is the reason and cause that auterfoits acquitted or convicted of the same
offence is a good plea.” Vaux’s Case (1591), 76 Eng. Rep. 992, 993; 4 Co. Rep.
44a, 45a (K.B.). But as far back as Vaux’s Case, the plea of prior acquittal was
not always a get-out-of-jail-free card. Only some verdicts of acquittal in the
first trial would effectively bar a second. See ibid. (discussing some
qualifications to the plea); EDWARD COKE, THE THIRD PART OF THE INSTITUTES
OF THE LAWS OF ENGLAND 214 (1st ed. 1644) (same); 2 MATTHEW HALE,
HISTORIA PLACITORUM CORONÆ 393–95 (1st ed. 1736) (same).
Our Double Jeopardy Clause was framed against this background.
James Madison’s first draft of that Clause stated: “No person shall be subject,
except in cases of impeachment, to more than one punishment or one trial for

5
 Case: 16-30486 Document: 00514985887 Page: 6 Date Filed: 06/06/2019

No. 16-30486

the same offence.” 1 ANNALS OF CONG. 451–52 (1789) (Joseph Gales ed., 1834).
Representative Egbert Benson objected because the draft varied from “the
right heretofore established” by the common law. Id. at 781. To cure the defect,
Benson suggested striking the phrase regarding “one trial.” Id. at 782.
Representative Roger Sherman agreed. He reasoned, “if [the defendant] was
convicted on the first [trial], and any thing should appear to set the judgment
aside, he was entitled to a second, which was certainly favorable to him.” Ibid.
The House revised it accordingly, and the Senate concurred in the revision.
See S. JOURNAL, 1st Cong., 1st Sess. 71 (1789).
As ratified, the Double Jeopardy Clause provides: “No person shall . . .
be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.
CONST. amend. V. Madison’s initial phrasing (“more than one punishment or
one trial”) was thus replaced with a prohibition on putting a person in
“jeopardy” more than once. Credit for that phrasing belongs to Blackstone. See
United States v. Wilson, 420 U.S. 332, 341–42 (1975) (noting the Fifth
Amendment uses “language that tracked Blackstone’s statement of the
principles of autrefois acquit and autrefois convict”); 4 WILLIAM BLACKSTONE,
COMMENTARIES *335 (“[T]he plea of auterfoits acquit, or a former acquittal, is
grounded on this universal maxim of the common law of England, that no man
is to be brought into jeopardy of his life, more than once, for the same offence.”).
Thus, the historic core of the Double Jeopardy Clause generally bars re-trial of
the “same offense” after a conviction or acquittal. See Currier, 138 S. Ct. at
2150.
The Framers adopted not only Blackstone’s language but also some
English common-law exceptions to the pleas of prior acquittal and prior
conviction. Most relevant here, the plea did not bar all attempts to retry a
criminal defendant. The defendant could be retried, for example:

6
 Case: 16-30486 Document: 00514985887 Page: 7 Date Filed: 06/06/2019

No. 16-30486

if the jury have been discharged without giving any verdict; or, if,
having given a verdict, judgment has been arrested upon it,[1] or a
new trial has been granted in his favour; for, in such a case, his life
or limb cannot judicially be said to have been put in jeopardy.

3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1781 (1st ed. 1833).
Likewise, when an “attainder be reversed in a Court of Error,” 2 the defendant
“may certainly be indicted again for the same offence, and the rule would be
held to apply, that he had never been in jeopardy under the former indictment.”
Regina v. Drury (1849), 175 Eng. Rep. 516, 520; 2 Car. & K. 190, 199 (N.P.).
That is why it has long been true that a defendant can be retried after
he successfully appeals his first conviction. See, e.g., Ball v. United States, 163
U.S. 662, 672 (1896) (citing Drury). As the Supreme Court has explained:
While different theories have been advanced to support the
permissibility of retrial, of greater importance than the conceptual
abstractions employed to explain the Ball principle are the
implications of that principle for the sound administration of
justice. Corresponding to the right of an accused to be given a fair
trial is the societal interest in punishing one whose guilt is clear
after he has obtained such a trial. It would be a high price indeed
for society to pay were every accused granted immunity from
punishment because of any defect sufficient to constitute
reversible error in the proceedings leading to conviction.

United States v. Tateo, 377 U.S. 463, 466 (1964); accord Justices of Boston Mun.
Court v. Lydon, 466 U.S. 294, 308 (1984) (“The general rule is that the [Double

1 “An arrest of judgment was the technical term describing the act of a trial judge refusing
to enter judgment on the verdict because of an error appearing on the face of the record that
rendered the judgment invalid.” United States v. Sisson, 399 U.S. 267, 280–81 (1970)
(plurality opinion). It bore some semblance to a motion for judgment notwithstanding the
verdict, but the analogy is not precise. See Arrest of Judgment, GILES JACOB, A NEW LAW-
DICTIONARY (1st ed. 1729). The important point for present purposes is arrest of judgment
was a post-conviction motion by the defendant challenging his conviction.
2 Attainder “[i]s when a Man hath committed Treason or Felony, and after Conviction[,]

Sentence is passed on him.” Attainder, GILES JACOB, A NEW LAW-DICTIONARY (1st ed. 1729).
7
 Case: 16-30486 Document: 00514985887 Page: 8 Date Filed: 06/06/2019

No. 16-30486

Jeopardy] Clause does not bar reprosecution of a defendant whose conviction
is overturned on appeal.”).
B.
The Supreme Court recently reminded us the line from Vaux’s Case to
Ashe is a crooked one. See Currier, 138 S. Ct. at 2149–50 (noting Ashe
“represented a significant innovation in our jurisprudence” that some say “sits
uneasily with this Court’s double jeopardy precedent and the Constitution’s
original meaning”). One reason why is, for the first 164 years of our Nation’s
history, the prohibition on double jeopardy could not be vindicated in habeas
proceedings by state prisoners.
From the Founding until after the Civil War, there was no such thing as
federal habeas for individuals in state custody (with one limited exception).
See Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 81–82 (providing federal
habeas only for federal prisoners); Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 98–
99 (1807) (suggesting federal courts could issue only writs of habeas corpus ad
testificandum for state prisoners). And although a federal prisoner had greater
federal habeas privileges than a state prisoner, even the former could not use
habeas proceedings to collaterally attack a conviction. During that time, a
judgment in a criminal case was just like a judgment in any other case: It was
res judicata. As Chief Justice Marshall put it:
The judgment of a court of record whose jurisdiction is final, is as
conclusive on all the world as the judgment of this court would be.
It is as conclusive on this court as it is on other courts. It puts an
end to inquiry concerning the fact, by deciding it.

8
 Case: 16-30486 Document: 00514985887 Page: 9 Date Filed: 06/06/2019

No. 16-30486

Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202–03 (1830). 3
In 1867, Congress extended the scope of federal habeas jurisdiction to
state prisoners. See Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385
(empowering federal courts “to grant writs of habeas corpus in all cases where
any person may be restrained of his or her liberty in violation of the
constitution, or any treaty or law of the United States”). Even then, however,
the Supreme Court continued to interpret the scope of its habeas authority in
a very limited way. If a prisoner was in jail under a state court judgment of
conviction, the Court asked only whether that state court had jurisdiction over
the defendant. See, e.g., Pettibone v. Nichols, 203 U.S. 192, 206, 215–16 (1906);
Harkrader v. Wadley, 172 U.S. 148, 168–70 (1898); see also Wright v. West, 505
U.S. 277, 285 (1992) (plurality opinion) (describing this practice).
For almost a century following the 1867 Act, no prisoner (state or federal)
could collaterally attack his conviction under the Double Jeopardy Clause.
Take for example Ex parte Lange, 85 U.S. 163 (1873). In that case, a federal
court sentenced the prisoner twice for one criminal offense of stealing mail
bags. The government conceded the sentence violated the Double Jeopardy
Clause. And the Court agreed: “For of what avail is the constitutional
protection against more than one trial if there can be any number of sentences
pronounced on the same verdict?” Id. at 173. Still, the Court held, that did

3 That made sense based on how the Great Writ developed at common law. King Charles
I thought he could jail English subjects for any reason, or no reason at all. See Darnell’s Case
(1627) (K.B.), in 3 T.B. HOWELL, A COMPLETE COLLECTION OF STATE TRIALS 1–59 (5th ed.
1816); The Petition of Right, 3 Car. 1 c. 1, § 5 (1628). In response, the habeas writ became a
tool for forcing the jailer to provide a lawful reason for the confinement. See An Act for the
Better Secureing the Liberty of the Subject and for Prevention of Imprisonments Beyond the
Seas, 31 Car. 2 c. 2 (1679). If he could not, the court could force the jailer to provide a trial
or some other kind of process. See Hamdi v. Rumsfeld, 542 U.S. 507, 555 (2004) (Scalia, J.,
dissenting). The habeas remedy (what we call the “privilege”) did not apply to post-trial
confinement because a criminal judgment, pursuant to a full-fledged criminal trial, was
always a lawful basis for jailing a prisoner. See Bushell’s Case (1670), 124 Eng. Rep. 1006,
1009–10; Vaugh. 135, 142–43 (C.P.).
9
 Case: 16-30486 Document: 00514985887 Page: 10 Date Filed: 06/06/2019

No. 16-30486

not justify habeas relief. That’s because “[t]he judgment first rendered, though
erroneous, was not absolutely void. It was rendered by a court which had
jurisdiction of the party and of the offence.” Id. at 174. And that was sufficient
to deny relief.
It was not until 1953 that state prisoners could use federal habeas
proceedings to relitigate free-standing constitutional claims after pressing and
losing them in state court. See Brown v. Allen, 344 U.S. 443, 460–65 (1953);
id. at 506–08 (opinion of Frankfurter, J.); see also Fay v. Noia, 372 U.S. 391,
460 (1963) (Harlan, J., dissenting) (describing Brown v. Allen as a “landmark
decision[ ]” that “substantially expanded the scope of inquiry on an application
for federal habeas corpus”); BRANDON L. GARRETT & LEE KOVARSKY, FEDERAL
HABEAS CORPUS: EXECUTIVE DETENTION AND POST-CONVICTION LITIGATION 3
(Robert C. Clark et al. eds., 2013) (referring to Brown v. Allen as the “big
bang”). And it was not until 1969 that the Supreme Court incorporated the
Double Jeopardy Clause against the States. See Benton v. Maryland, 395 U.S.
784, 794 (1969). On the same day it announced Benton, the Court held for the
first time that state prisoners could raise Double Jeopardy claims in federal
habeas. See North Carolina v. Pearce, 395 U.S. 711, 717–19 (1969).
This is the backdrop for Ashe, which came the very next year. In Ashe,
a group of masked men allegedly robbed six players at a poker game. 397 U.S.
at 437. Under the relevant state law, Ashe was guilty of robbery if he was one
of the masked robbers, even if the State could not prove Ashe robbed any one
particular poker player. Id. at 439. The State tried Ashe for robbing the first
player, but the jury acquitted him. Ibid. On their verdict form, the jury found
Ashe “not guilty due to insufficient evidence.” Ibid. Then the State attempted
to try Ashe for robbing a second player. Ibid. The question was whether the
Double Jeopardy Clause barred the second trial. Id. at 440–41.

10
 Case: 16-30486 Document: 00514985887 Page: 11 Date Filed: 06/06/2019

No. 16-30486

The Supreme Court held yes. Id. at 447. The Court, however, did not
base that holding on autrefois acquit, the common-law qualifications to that
plea, or the original meaning of the Double Jeopardy Clause. Instead, the
Court identified a collateral estoppel “ingredient” in that Clause. Id. at 442–
44. The Court then held the State was collaterally estopped from alleging Ashe
was one of the robbers because the first jury (1) returned an acquittal and
(2) necessarily determined there was insufficient evidence to prove Ashe was
one of the robbers. Id. at 445–47.
The Supreme Court therefore has made clear that Ashe has a different
scope than the traditional protections of the Double Jeopardy Clause.
“While . . . Ashe’s protections apply only to trials following acquittals, as a
general rule, the Double Jeopardy Clause protects against a second prosecution
for the same offense after conviction as well as against a second prosecution
for the same offense after acquittal.” Currier, 138 S. Ct. at 2150 (quotation
omitted). That’s why the Court called Ashe “a significant innovation.” Id. at
2149. Indeed, Ashe itself recognized the distinction between its collateral-
estoppel rule and the rules that applied “at common law.” 397 U.S. at 445 n.10.
C.
In response to Brown v. Allen—along with its progeny such as Ashe—
Congress enacted AEDPA. See Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(noting AEDPA “changed the standards for granting federal habeas relief ”
from those in Brown v. Allen). As relevant here, AEDPA prohibits a prisoner
from raising any claim in federal court unless it was first exhausted in state
court. See 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 839–40
(1999). After the state court adjudicates the claim, the prisoner must overcome
“the relitigation bar imposed by AEDPA.” Greene v. Fisher, 565 U.S. 34, 39
(2011) (citing 28 U.S.C. § 2254(d)(1)). The statute thereby restores the res

11
 Case: 16-30486 Document: 00514985887 Page: 12 Date Filed: 06/06/2019

No. 16-30486

judicata rule Chief Justice Marshall recited in Ex parte Watkins and then
modifies it. See Felker v. Turpin, 518 U.S. 651, 663–64 (1996) (comparing
AEDPA’s “modified res judicata rule” to Watkins).
To overcome AEDPA’s relitigation bar, a state prisoner must shoehorn
his claim into one of its narrow exceptions. As relevant here, he must show
the state court’s adjudication of the claim “resulted in a decision that was
[1] contrary to, or [2] involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).
The first exception to the relitigation bar—the “contrary to” prong—is
generally regarded as the narrower of the two. A state-court decision is
“contrary to” clearly established federal law only if it “arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if” it
resolves “a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Terry Williams v. Taylor, 529 U.S. 362, 413 (2000).
Langley identifies no Supreme Court precedent that is “opposite to” or
“materially indistinguishable” from this case. So here, as in most AEDPA
cases, the “contrary to” prong does not apply.
The only other exception to § 2254(d)(1)’s relitigation bar—the
“unreasonable application” prong—is almost equally unforgiving. The
Supreme Court has repeatedly held that it is not enough to show the state
court was wrong. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010) (“[A] federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” (quotation omitted));
Landrigan, 550 U.S. at 473 (“The question under AEDPA is not whether a
federal court believes the state court’s determination was incorrect but

12
 Case: 16-30486 Document: 00514985887 Page: 13 Date Filed: 06/06/2019

No. 16-30486

whether that determination was unreasonable—a substantially higher
threshold.”). Rather, the relitigation bar forecloses relief unless the prisoner
can show the state court was so wrong that the error was “well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam)
(quotation omitted). In other words, the unreasonable-application exception
asks whether it is “beyond the realm of possibility that a fairminded jurist
could” agree with the state court. Woods v. Etherton, 136 S. Ct. 1149, 1152
(2016) (per curiam); see also Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018)
(per curiam) (asking “whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the holding in a prior
decision of this Court” (quotation omitted)).
Overcoming AEDPA’s relitigation bar is necessary but not sufficient to
win habeas relief. Even after overcoming the bar, the prisoner still must
“show, on de novo review, that [he is] ‘in custody in violation of the Constitution
or laws or treaties of the United States.’ ” Salts v. Epps, 676 F.3d 468, 480 (5th
Cir. 2012) (quoting 28 U.S.C. § 2254(a)); see also Berghuis v. Thompkins, 560
U.S. 370, 390 (2010) (“[A] habeas petitioner will not be entitled to a writ of
habeas corpus if his or her claim is rejected on de novo review [under]
§ 2254(a).”); Oral Argument at 13:30–13:59 (Langley’s acknowledgement that
overcoming AEDPA’s relitigation bar is necessary but not sufficient to obtain
habeas relief ).
III.
Langley’s claim fails under these demanding standards. We first explain
that Langley cannot surmount AEDPA’s relitigation bar. Then we explain that
the most-on-point Supreme Court precedent supports the State, not Langley.
Lastly, even if we set aside AEDPA’s relitigation bar and review the claim de

13
 Case: 16-30486 Document: 00514985887 Page: 14 Date Filed: 06/06/2019

No. 16-30486

novo, Langley still cannot prove his second jury necessarily determined
anything regarding his specific intent.
A.
1.
The first step in any case under AEDPA’s relitigation bar is to determine
the “clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). It is not enough to say, as the panel
did, that the “Ashe doctrine” forms the relevant clearly established law, or that
Ashe established the “governing principles.” Langley, 890 F.3d at 516–18. The
Supreme Court has repeatedly reversed the courts of appeals for identifying
the relevant clearly established law at that level of generality.
Take for example Carey v. Musladin, 549 U.S. 70 (2006). In that case,
the Ninth Circuit held California deprived the defendant of a fair trial by
allowing a murder victim’s family members to sit in the front row of a jury trial
wearing buttons with the victim’s photo. Musladin v. Lamarque, 427 F.3d 653,
654–55 (9th Cir. 2005). The Ninth Circuit identified the clearly established
law as “the Williams test.” Id. at 658. “The Williams test” referred to Estelle
v. Williams, 425 U.S. 501, 503–06 (1976), in which the Supreme Court held it
would violate the defendant’s fair trial rights to compel him to appear at trial
in prison garb. In reversing the Ninth Circuit, the Supreme Court held the
clearly established law relevant under AEDPA’s relitigation bar is only the
Supreme Court’s holdings, not its dicta. Musladin, 549 U.S. at 74. Therefore,
Williams clearly established the law only as applied to prison garb—it could
not be extended under AEDPA to vitiate state judgments for spectators’
buttons. Id. at 75–77. As the Supreme Court put it in a different but related
context:
We have repeatedly told courts . . . not to define clearly established
law at a high level of generality. The dispositive question is

14
 Case: 16-30486 Document: 00514985887 Page: 15 Date Filed: 06/06/2019

No. 16-30486

whether the violative nature of particular conduct is clearly
established. This inquiry must be undertaken in light of the
specific context of the case, not as a broad general proposition.

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quotations and
emphasis omitted).
In this case, our now-vacated panel opinion conflated the Supreme
Court’s holding with its dicta in much the same way the Ninth Circuit did in
Musladin. The Ashe Court had much to say about how or why collateral
estoppel should apply in the criminal context—just as the Williams Court had
much to say about how or why the State should not allow jurors to see unduly
prejudicial things in the courtroom. But the holding in Ashe, like the holding
in Williams, was narrower. The Ashe Court held only that a general verdict of
acquittal for insufficient evidence that “petitioner was . . . one of the robbers”
precluded the State from “hal[ing] him before a new jury to litigate that issue
again.” 397 U.S. at 446; see Yeager v. United States, 557 U.S. 110, 119 (2009)
(stating Ashe “held that the Double Jeopardy Clause precludes the
Government from relitigating any issue that was necessarily decided by a
jury’s acquittal in a prior trial”).
The Supreme Court has found issue preclusion under Ashe only three
other times. See Turner v. Arkansas, 407 U.S. 366, 369–70 (1972) (per curiam);
Harris v. Washington, 404 U.S. 55, 57 (1971) (per curiam); Simpson v. Florida,
403 U.S. 384, 386 (1971) (per curiam). 4 Turner, Harris, Simpson, and Ashe all
involved blanket acquittals. See Turner, 407 U.S. at 367 (noting jury returned
“a general verdict of acquittal”); Harris, 404 U.S. at 55 (noting defendant “was
acquitted by a jury” on a single charge); Simpson, 403 U.S. at 384–85 (noting

4 In Yeager, the Court concluded “that acquittals can preclude retrial on counts on which
the same jury hangs.” 557 U.S. at 125. The Court, however, did not find Ashe issue
preclusion because it remanded the issue of “what the jury necessarily decided in its
acquittals.” Id. at 125–26.
15
 Case: 16-30486 Document: 00514985887 Page: 16 Date Filed: 06/06/2019

No. 16-30486

jury returned a “general” verdict of acquittal); Ashe, 397 U.S. at 439 (noting
jury returned one general verdict of acquittal: “not guilty due to insufficient
evidence”). None of the four juries convicted the defendant of the charged
crime.
Therefore, none of these cases held issue-preclusion principles apply to a
conviction. We asked the parties to identify any case extending Ashe to cases
involving a conviction. The parties could not find a single Supreme Court case
even hinting at that result. That’s unsurprising. As the Supreme Court
recently acknowledged, “Ashe’s protections apply only to trials following
acquittals.” Currier, 138 S. Ct. at 2150 (emphases added). Thus, there is no
“clearly established Federal law, as determined by the Supreme Court,”
explaining whether and to what extent a state court should find issue
preclusion following a conviction.
2.
After identifying the clearly established law, we move to step two—
determining whether the state court decision “involved an unreasonable
application of ” that law. 28 U.S.C. § 2254(d)(1). To make this determination,
we must ask whether any fairminded jurist could believe the “clearly
established rule” does not apply to the “set of facts” at hand. White v. Woodall,
572 U.S. 415, 427 (2014). “If such disagreement is possible, then the
petitioner’s claim must be denied.” Beaudreaux, 138 S. Ct. at 2558.
Langley loses at this step. A fairminded jurist could conclude the rule
clearly established in Ashe does not apply to a conviction rather than a general
acquittal. When a jury issues a general acquittal, it necessarily determines at
least something in the defendant’s favor. It might be possible to identify that
something and preclude the government from submitting it to a second jury.
That task is obviously different—and more difficult—when the jury convicts

16
 Case: 16-30486 Document: 00514985887 Page: 17 Date Filed: 06/06/2019

No. 16-30486

the defendant on at least one count. In the face of a conviction on one count, it
is not clear which issues if any the jury determined in the defendant’s favor on
that same count. 5
We may or may not find this distinction persuasive. That’s irrelevant.
What matters is the last reasoned state court decision found it persuasive. See
Langley IV , 61 So. 3d at 757–58 (last reasoned state court decision); Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018) (requiring deference to that decision if
reasonable). The state court recognized Ashe’s applicability to a “general
acquittal.” Langley IV, 61 So. 3d at 757 (citing Ashe, 397 U.S. at 444). By
contrast, where the jury returns a conviction on “a lesser included offense,” the
state court found it’s “not always possible to determine” which issues if any
should be precluded under Ashe. Ibid. The state court found it “possible” the
jury made one of three determinations: (1) Langley was guilty of specific-intent
murder, (2) Langley was guilty of something less than specific-intent murder,
or (3) the jury avoided the specific-intent issue by rendering a “compromise
verdict.” Ibid. In the state court’s view, Langley’s argument that the jury

5 The dissenters dispute this by confusing it. Imagine a two-count indictment (X and Y),
where Y is a lesser-included offense of X. It is well settled that a conviction on Y bars retrial
on X. See Price v. Georgia, 398 U.S. 323, 329 (1970) (explaining the petitioner could be retried
“for voluntary manslaughter after his first conviction for that offense had been reversed,” but
the Double Jeopardy Clause precluded retrial on the greater charge of murder regardless of
“whether that acquittal is express or implied by a conviction on a lesser included offense when
the jury was given a full opportunity to return a verdict on the greater charge” (footnote
omitted)); Green v. United States, 355 U.S. 184, 190–91 (1957) (concluding petitioner could
not be retried for first-degree murder after jury convicted him of second-degree murder). The
Supreme Court has held this result is commanded by the Double Jeopardy Clause’s “historic
core” protection, which applies to offenses, not issues. See Currier, 138 S. Ct. at 2150. It is
undisputed the Louisiana Supreme Court correctly applied this principle here by holding the
second jury’s conviction on the lesser-included offense (Y, second-degree murder) barred
Louisiana from retrying Langley for the greater offense (X, first-degree murder). See Langley
III, 958 So. 2d at 1170 (so holding). The dispute in this case is whether a conviction on Y can
create issue preclusion on Y. The dissenters’ steadfast focus on X—which no one disputes
and which has never been a part of this federal habeas proceeding—is tantamount to tilting
at a windmill. See post at 61 (Higginson, J., dissenting) (arguing it’s “dangerous[ ]” to suggest
Langley could be retried on X, even though everyone agrees Langley cannot be retried on X).
17
 Case: 16-30486 Document: 00514985887 Page: 18 Date Filed: 06/06/2019

No. 16-30486

found (2) to the exclusion of (1) and (3) was “clearly . . . unsupported.” Id. at
758.
Even if we thought the state court committed “clear error” by so holding,
we still could not grant relief. Woodall, 572 U.S. at 419. After all, neither Ashe
nor any other Supreme Court precedent mandates that a lesser-included-
offense conviction—or to use the dissent’s preferred terminology, an “implicit
acquittal”—be given issue-preclusive effect. And Supreme Court precedent
does mandate caution in finding Ashe issue preclusion where the jury could
have rendered a “compromise” or “lenity” verdict. See United States v. Powell,
469 U.S. 57, 65–66 (1984); Standefer v. United States, 447 U.S. 10, 22–23
(1980); accord Bravo-Fernandez v. United States, 137 S. Ct. 352, 363–64 (2016)
(noting “the jurors in this case might not have acquitted on [certain] counts
absent their belief that the . . . convictions [on other counts] would stand”).
Therefore, a fairminded jurist could find that Ashe’s rule regarding general
acquittals does not require issue preclusion for Langley’s conviction. Under
AEDPA, that’s the end of the matter. See Woodall, 572 U.S. at 419–20.
In the past, some federal courts mistakenly thought it was only the
beginning. The Sixth Circuit, for example, faulted a state court for
“ unreasonably refus[ing] to extend” a Supreme Court precedent “ to a new
context where [the Sixth Circuit thought] it should apply.” Woodall v.
Simpson, 685 F.3d 574, 579 (6th Cir. 2012) (quoting Terry Williams, 529 U.S.
at 407). The Supreme Court emphatically reversed. The Court emphasized it
“has never adopted the unreasonable-refusal-to-extend rule . . . . It has not
been so much as endorsed in a majority opinion, let alone relied on as a basis
for granting habeas relief.” Woodall, 572 U.S. at 426; see also ibid. (holding
“we reject it”). That result is compelled by the text of the relitigation bar itself:
“Section 2254(d)(1) provides a remedy for instances in which a state court

18
 Case: 16-30486 Document: 00514985887 Page: 19 Date Filed: 06/06/2019

No. 16-30486

unreasonably applies [the Supreme] Court’s precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to
do so as error.” Ibid. To the contrary:
“[I]f a habeas court must extend a rationale before it can apply to
the facts at hand,” then by definition the rationale was not “clearly
established at the time of the state-court decision.” AEDPA’s
carefully constructed framework “would be undermined if habeas
courts introduced rules not clearly established under the guise of
extensions to existing law.”
Ibid. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).
Because a fairminded jurist could decide the clearly established rule does
not cover this case, we’d have to extend Ashe to grant relief here. That is
something AEDPA says we cannot do. See, e.g., Woods v. Donald, 135 S. Ct.
1372, 1377 (2015) (per curiam) (“Because none of our cases confront the specific
question presented by this case, the state court’s decision could not be ‘contrary
to’ any holding from this Court,” nor an “unreasonable application” thereof.
(quotation omitted)); Woodall, 572 U.S. at 427 (“Perhaps the logical next step
from [three previous Supreme Court cases] would be to hold that the Fifth
Amendment requires a penalty-phase no-adverse-inference instruction in a
case like this one; perhaps not. Either way, we have not yet taken that step,
and there are reasonable arguments on both sides—which is all Kentucky
needs to prevail in this AEDPA case.”); Knowles v. Mirzayance, 556 U.S. 111,
122 (2009) (“[T]his Court has held on numerous occasions that it is not ‘an
unreasonable application of ’ ‘clearly established Federal law’ for a state court
to decline to apply a specific legal rule that has not been squarely established
by this Court.”); accord Teague v. Lane, 489 U.S. 288, 299–310 (1989) (plurality
opinion) (holding federal courts may not develop—and habeas petitioners may
not seek—new legal rules on collateral review). As far as we can tell, the only
other court of appeals to address this question agrees with us. See Owens v.

19
 Case: 16-30486 Document: 00514985887 Page: 20 Date Filed: 06/06/2019

No. 16-30486

Trammell, 792 F.3d 1234, 1246–50 (10th Cir. 2015) (holding AEDPA precluded
awarding habeas relief based on Ashe following a conviction). 6
B.
1.
Extending Ashe in these circumstances would also conflict with other
clearly established law. That’s because the Supreme Court has confronted
similar facts before and rejected the prisoner’s Double Jeopardy claim. See
Schiro v. Farley, 510 U.S. 222 (1994). If anything, Schiro was a harder case.
The jury convicted Schiro of felony murder (count II) but did not return
a verdict on intentional murder (count I). Id. at 225–26. “Thereafter, in a
separate sentencing hearing, the same jury unanimously concluded that Schiro
did not deserve the death penalty, presumably because he had not intended to
kill.” Id. at 239 (Stevens, J., dissenting) (footnote omitted). And that
presumption appeared well grounded because “[t]he principal issue at trial was
Schiro’s mental condition.” Id. at 240; see also ibid. (“No one disputed that he
had caused his victim’s death, but intent remained at issue in other ways. Five
expert witnesses—two employed by the State, one selected by the court, and
two called by the defense—testified at length about Schiro’s unusual
personality, his drug and alcohol addiction, and his history of mental illness.”
(citations omitted)). Moreover, both the jury instructions and Indiana state
law permitted the jurors to return a guilty verdict on every count on which

6 The dissenters appear to recognize that Louisiana’s courts have no obligation to extend
Supreme Court precedent but paradoxically fault the state court for following that precedent.
See post at 63–64 (Costa, J., dissenting). They suggest Louisiana violated the Constitution
by allowing Langley to waive his right to a third jury trial after losing the first two. That is
obviously wrong: The Supreme Court “hold[s] no constitutional doubts about the practice[ ],
common in both federal and state courts, of accepting waivers of jury trial[s].” Duncan v.
Louisiana, 391 U.S. 145, 158 (1968). But even if arguendo the dissenters were right about
the jury-trial right, AEDPA still would foreclose relief. If AEDPA protects a state court
decision refusing to extend Supreme Court precedent, it certainly protects a state court
decision refusing to contradict that precedent.
20
 Case: 16-30486 Document: 00514985887 Page: 21 Date Filed: 06/06/2019

No. 16-30486

they had unanimity—which could imply the jury intended to acquit the
defendant on each count they failed to return (like count I, intentional murder).
See id. at 233–34 (majority opinion); id. at 246–47 (Stevens, J., dissenting)
(arguing jury’s failure to return a verdict on intentional murder implicitly
acquitted on that count). Nonetheless, the State argued Schiro’s intent was an
aggravating factor that justified the court in sentencing him to death. The
Supreme Court held the jurors’ failure to return a verdict on intentional
murder did not collaterally estop the State from so arguing. Id. at 232–36
(majority opinion); see also Sattazahn v. Pennsylvania, 537 U.S. 101, 113–15
(2003) (holding the Double Jeopardy Clause does not bar reprosecution for
capital murder after prisoner successfully appeals judgment for life sentence). 7
Louisiana law makes this case easier than Schiro. Under Louisiana law,
“the jury must be given the option to convict the defendant of the lesser offense,
even though the evidence clearly and overwhelmingly supported a conviction
of the charged offense.” State v. Porter, 639 So. 2d 1137, 1140 (La. 1994). And
the jury was given that option. The Langley II jury was repeatedly told—orally
and in writing—that “[t]he responsive lesser offenses to the charge of First
Degree Murder are Second Degree Murder and Manslaughter.” Neither the
dissenters nor Langley’s able appellate attorney has ever disputed that the
evidence supported every element of the first-degree murder count against
Langley, including specific intent. And a rational jury could have credited that
overwhelming evidence and still—in accordance with the instructions and the
law—returned a verdict for the lesser-included offense of second-degree
specific-intent murder.

7 The principal dissent says Schiro is distinguishable because it involved a single (albeit
bifurcated) trial as opposed to two successive trials. Post at 58 (Higginson, J., dissenting).
That’s irrelevant. The Supreme Court assumed Ashe applied identically in both
circumstances and then held Schiro’s Ashe claim failed. See Schiro, 510 U.S. at 232. The
Schiro Court’s pure Ashe holding is fully applicable here.
21
 Case: 16-30486 Document: 00514985887 Page: 22 Date Filed: 06/06/2019

No. 16-30486

As far as the Schiro opinion reveals, the jury in that case received no
such option. To the contrary, Indiana law at least arguably required Schiro’s
jury to return a verdict on count I (intentional murder) if they agreed the State
proved it. See 510 U.S. at 240–42 (Stevens, J., dissenting). And to the extent
Schiro’s jury instructions were ambiguous on that score, Langley’s were even
more so. See infra at 35–36. If the jury’s failure to return a verdict on
intentional murder did not trigger collateral estoppel in Schiro, it certainly
does not do so here.
Finally, it bears emphasis that Schiro was a pre-AEDPA death-penalty
case. Even after Schiro’s jury potentially acquitted him of intentional murder
by returning only a verdict of felony murder, the trial judge rejected the jury’s
recommended sentence and held the State proved intent beyond a reasonable
doubt for purposes of sentencing the defendant to death. Id. at 226–27
(majority opinion). The Supreme Court upheld that result even without
AEDPA’s relitigation bar.
In contrast, Langley’s jury did not return a verdict of felony murder. It
returned a verdict of “second-degree murder,” which could mean Langley was
convicted of specific-intent murder or felony murder. Langley also faces the
additional burden of AEDPA. If Indiana could prevail in Schiro, then
Louisiana must prevail on easier facts and a much more favorable legal
standard. See Alvarado, 541 U.S. at 664.
2.
At the en banc argument, Langley suggested it matters whether the state
court (or the state’s lawyer at the panel stage) cited Schiro. It doesn’t. Federal
courts must apply § 2254(d) in light of controlling Supreme Court holdings
regardless of whether the state court or the state’s lawyer cites them.

22
 Case: 16-30486 Document: 00514985887 Page: 23 Date Filed: 06/06/2019

No. 16-30486

First, it doesn’t matter whether the state court cited Schiro. The Ninth
Circuit once refused to apply AEDPA’s relitigation bar because “the state court
‘failed to cite . . . any federal law, much less the controlling Supreme Court
precedents.’ ” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (alteration in
original) (quoting Packer v. Hill, 291 F.3d 569, 578 (9th Cir. 2002)). The
Supreme Court unanimously and summarily reversed: “Avoiding [vitiation of
a state judgment in federal court] does not require citation of our cases—
indeed, it does not even require awareness of our cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.” Ibid.;
see also Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam).
Second, it also doesn’t matter whether the State’s panel-stage appellate
lawyer cited Schiro. The relitigation bar constrains our ability to award
habeas relief regardless of what counsel cites or does not cite. See 28 U.S.C.
§ 2254(d) (“An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court [unless
statutory exceptions are satisfied].” (emphasis added)). Every court of appeals
to consider the question—including ours—has held a State’s lawyers cannot

23
 Case: 16-30486 Document: 00514985887 Page: 24 Date Filed: 06/06/2019

No. 16-30486

waive or forfeit § 2254(d)’s standard. 8 That likewise means a State’s lawyers
cannot waive or forfeit the applicable “clearly established law.” See, e.g.,
Thompson v. Runnels, 705 F.3d 1089, 1097–1100 (9th Cir. 2013); BRYAN R.
MEANS, FEDERAL HABEAS MANUAL § 3:97 (2019). Schiro rejected a stronger
Double Jeopardy claim under harder facts and without the added hurdle of
§ 2254(d)’s relitigation bar. Schiro thus provides an independent basis for
denying Langley’s claim.
Wilson v. Sellers is not to the contrary. Wilson requires us to “look
through” to the last reasoned state court decision and apply AEDPA’s
relitigation bar to it. 138 S. Ct. at 1192; see supra Part III.A.2 (doing so). But
Wilson does not purport to overrule Packer or Esparza. Nor does Wilson say
the state court must cite a Supreme Court decision to trigger AEDPA’s
strictures. See Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1350
(11th Cir. 2019) (explaining Wilson “was not about the specificity or
thoroughness with which state courts must spell out their reasoning to be
entitled to AEDPA deference”); Hebert v. Rogers, 890 F.3d 213, 221 (5th Cir.

8 See Winfield v. Dorethy, 871 F.3d 555, 560–63 (7th Cir. 2017) (holding State’s lawyer
cannot waive applicability of AEDPA and emphasizing “the general principle that waiver
does not apply to arguments regarding the applicable standard of review”), cert. denied, 138
S. Ct. 2003 (2018); Wilson v. Mazzuca, 570 F.3d 490, 500 (2d Cir. 2009) (“The standard of
review set forth in AEDPA is not conditional. It is stated in mandatory terms—habeas relief
‘shall not be granted with respect to any claim that was adjudicated on the merits in State
court proceedings.’ ” (emphases omitted) (quoting 28 U.S.C. § 2254(d))); Gardner v. Galetka,
568 F.3d 862, 879 (10th Cir. 2009) (“[T]he correct standard of review under AEDPA is not
waivable. It is, unlike exhaustion, an unavoidable legal question we must ask, and answer,
in every case.”); Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008) (holding “a party
cannot ‘waive’ the proper standard of review [under AEDPA] by failing to argue it”),
abrogated on other grounds, Cullen v. Pinholster, 563 U.S. 170 (2011); Valdez v. Cockrell, 274
F.3d 941, 950 (5th Cir. 2001) (“The word ‘shall’ is mandatory in meaning. Thus, we lack
discretion as to the operation of this section.” (citation omitted)). One court—the Ninth
Circuit—stepped out of line, and it was GVR’d by the Supreme Court. See James v. Ryan,
679 F.3d 780, 802 (9th Cir. 2012) (finding waiver of argument that state courts adjudicated
the ineffective assistance of counsel claims on the merits and that AEDPA’s relitigation bar
thus applied to them), cert. granted, judgment vacated, and remanded by Ryan v. James, 568
U.S. 1224 (2013).
24
 Case: 16-30486 Document: 00514985887 Page: 25 Date Filed: 06/06/2019

No. 16-30486

2018) (explaining “the brevity of a state court’s opinion is immaterial” and
noting “a state court’s decision does not need to be thorough or directly address
[the] Supreme Court’s cases”).
Here, as in Schiro, the last-reasoned state court decision held the
prisoner failed to prove the jury necessarily determined the specific-intent
issue in his favor. Compare Schiro, 510 U.S. at 232–36, with Langley IV , 61
So. 3d at 757–58. Schiro thus illustrates that the last-reasoned state court
decision was a reasonable application of Supreme Court precedent, including
some holdings the state court did not cite. Nothing in AEDPA, Wilson, or any
other relevant authority requires the state court to cite Schiro—or any other
specific Supreme Court case—to insulate its decision from vitiation in federal
court. Wilson likewise does not prohibit this Court from considering Supreme
Court cases not cited when evaluating the reasonableness of the state court’s
reasoning. Indeed, we are often compelled to do so to determine “clearly
established Federal law.” 28 U.S.C. § 2254(d)(1).
C.
The principal dissent takes issue with our application of AEDPA. Even
if the dissent’s arguments were well taken and AEDPA’s relitigation bar did
not apply, Langley would not automatically be entitled to habeas relief.
Instead, he would still need to show—under a de novo review standard—“that
he is in custody in violation of the Constitution . . . of the United States.” 28
U.S.C. § 2254(a); see Thompkins, 560 U.S. at 390; Salts, 676 F.3d at 480.
Langley cannot do so because he cannot prove the Langley II judgment
triggered collateral estoppel of the specific-intent issue.
1.
Collateral estoppel—or, as we call it today, issue preclusion—originates
in the law of civil judgments. See, e.g., Cromwell v. County of Sac, 94 U.S. 351,

25
 Case: 16-30486 Document: 00514985887 Page: 26 Date Filed: 06/06/2019

No. 16-30486

354 (1876). As with other preclusion doctrines (like res judicata), the idea is
that an issue definitively settled once is “forever settled as between the
parties.” Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525
(1931); see also DAVID L. SHAPIRO, CIVIL PROCEDURE: PRECLUSION IN CIVIL
ACTIONS 48 (2001) (“[A]n issue once decided is settled, at least as between the
parties.”).
In civil cases, the Supreme Court “regularly turns to the Restatement
(Second) of Judgments for a statement of the ordinary elements of issue
preclusion.” B&B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1303
(2015). Under the Restatement, in turn, a civil judgment can generate issue
preclusion if and only if it meets certain essential prerequisites. See
RESTATEMENT (SECOND) OF JUDGMENTS § 27 (Am. Law Inst. 1982). Three of
those prerequisites are relevant here: (a) The issue must be “actually . . .
determined” by the judgment, (b) the issue must be “essential to the judgment,”
and (c) the judgment must be “valid and final.” Ibid.
In civil cases, the availability of appellate review of the judgment in the
first case is particularly important to its issue-preclusive effect in a second
case. See id. § 28. That’s because, as noted above, a civil judgment generates
issue preclusion only when it’s “valid and final.” And the “valid[ity]” of a
judgment is suspect if it cannot be reviewed. Therefore, the Restatement
concludes, “the availability of review for the correction of errors has become
critical to the application of preclusion doctrine.” Id. § 28 cmt. a; see also
Bravo-Fernandez, 137 S. Ct. at 358 (“In civil litigation, where issue preclusion
and its ramifications first developed, the availability of appellate review is a
key factor.”). Correlatively, once a civil judgment is reversed on appeal, it’s
obviously no longer “valid” and retains zero preclusive effect. See
RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. o; 18A CHARLES ALAN

26
 Case: 16-30486 Document: 00514985887 Page: 27 Date Filed: 06/06/2019

No. 16-30486

WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4432 (3d ed. 2018)
[hereinafter WRIGHT & MILLER] (“Reversal and remand for further proceedings
on the entire case defeats preclusion entirely until a new final judgment is
entered by the trial court or the initial judgment is restored by further
appellate proceedings.”).
The principal reason issue preclusion is narrower in criminal cases than
in civil ones is the limited availability of appellate review for the former.
Criminal issue preclusion attaches to a general verdict of acquittal, and “the
Government is precluded from appealing or otherwise upsetting such an
acquittal by the Constitution’s Double Jeopardy Clause.” Powell, 469 U.S. at
65. This “absence of appellate review of acquittals . . . calls for guarded
application of preclusion doctrine in criminal cases.” Bravo-Fernandez, 137 S.
Ct. at 358; see also Currier, 138 S. Ct. at 2152 (plurality opinion) (“We think
that caution remains sound.”).
Take for example Standefer. In that case, the defendant was indicted for
bribing an IRS official. 447 U.S. at 11. While that indictment was pending,
the IRS official was acquitted of accepting three bribes from Standefer. Id. at
12–13. Standefer argued the IRS official’s acquittal should trigger nonmutual
collateral estoppel against the government’s prosecution of Standefer. Id. at
13–14, 21–22. The Supreme Court rejected that argument because the
government did not have a full and fair opportunity to litigate the acquittal of
the IRS agent. Id. at 22. For example, the government could not seek a new
trial because the acquittal is contrary to the evidence, nor could it appeal the
acquittal. The Supreme Court explained:

The absence of these remedial procedures in criminal cases
permits juries to acquit out of compassion or compromise or
because of their assumption of a power which they had no right to
exercise, but to which they were disposed through lenity. It is of
course true that verdicts induced by passion and prejudice are not
27
 Case: 16-30486 Document: 00514985887 Page: 28 Date Filed: 06/06/2019

No. 16-30486

unknown in civil suits. But in civil cases, post-trial motions and
appellate review provide an aggrieved litigant a remedy; in a
criminal case the Government has no similar avenue to correct
errors. Under contemporary principles of collateral estoppel, this
factor strongly militates against giving an acquittal preclusive
effect.

Id. at 22–23 (quotations and citations omitted). Time and again—from Powell
and Standefer to Currier and Bravo-Fernandez—the Supreme Court has
repeatedly admonished lower courts to carefully apply issue preclusion in
criminal cases.
2.
Our now-vacated panel opinion misapplied these principles. It ignored
the Supreme Court’s admonition regarding “guarded application of preclusion
doctrine in criminal cases.” Bravo-Fernandez, 137 S. Ct. at 358. In its place,
the panel substituted a rigid logic game, complete with numbered “conditions”
that could be “fulfilled” or negated according to “the rules of logic.” 890 F.3d
at 519–20. That not only contravenes the Supreme Court’s warnings in cases
like Currier, Bravo-Fernandez, Standefer, and Powell, but it also contravenes
Ashe itself. Ashe emphasized “the rule of collateral estoppel in criminal cases
is not to be applied with the hypertechnical and archaic approach of a 19th
century pleading book, but with realism and rationality.” 397 U.S. at 444.
Under a proper understanding of collateral estoppel principles, Langley
cannot demonstrate Langley II precluded the specific-intent issue. That’s for
three reasons.
First, Langley cannot prove the jury “actually determined” the issue of
specific intent even under the (broader) rules of civil judgments. See
RESTATEMENT (SECOND) OF JUDGMENTS § 27 (one prerequisite of preclusion is
the issue was “actually . . . determined” in the first civil action); SHAPIRO,
supra, at 48 (“[T]he first precondition for the application of issue preclusion [is]

28
 Case: 16-30486 Document: 00514985887 Page: 29 Date Filed: 06/06/2019

No. 16-30486

that the issue have been ‘actually litigated and determined’ . . . in the prior
action.”). Here is what the Langley II jury actually determined:

We presume the jury followed its instructions in rendering this verdict. See,
e.g., Turner, 407 U.S. at 369.
We turn then to the jury instructions. The judge orally instructed the
jury it could premise its second-degree murder conviction on a finding of
specific intent. During its deliberations, the jury sent a note asking for “the
instruction sheet” on “specific intent” (among other things). The judge
provided the jury with written instructions that again told the jury it could
convict Langley of second-degree murder based on specific intent. Langley
never objected to any of this at trial. To the contrary, counsel for the State and
the defense had a colloquy with the trial judge over this exact instruction. And
everyone agreed the jury should be instructed on second-degree specific-intent
murder. Then at oral argument before our en banc Court, Langley’s counsel
conceded the jury was given the option of returning a legally valid conviction
of second-degree specific-intent murder. See Oral Argument at 9:08–9:29.
We are aware of no case from any court that would allow us to infer a
jury “irrationally” chose a concededly valid option offered in the instructions.
It was therefore wrong to hold, as the panel did, that no “rational jury could
have convicted Langley of specific intent second degree murder.” Langley, 890
F.3d at 521 (quotation and alteration omitted). Under de novo review, we hold

29
 Case: 16-30486 Document: 00514985887 Page: 30 Date Filed: 06/06/2019

No. 16-30486

the state court was objectively correct to find “[i]t is possible that the jury
convicted the defendant of specific intent second degree murder.” Langley IV,
61 So. 3d at 757. Langley therefore cannot prove the jury “actually
determined” the issue of specific intent in his favor.
Second, and for similar reasons, Langley cannot prove the issue of
specific intent was “necessary” or “essential to the judgment” even under the
(broader) civil preclusion rules. See RESTATEMENT (SECOND) OF JUDGMENTS
§ 27 (one prerequisite of preclusion is the issue was “essential to the
judgment”); SHAPIRO, supra, at 50 (same). Under Louisiana law, a jury can
find a defendant overwhelmingly guilty of first-degree murder and still choose
to convict of second-degree murder. See Porter, 639 So. 2d at 1140; LA. CODE
CRIM. PROC. ANN. art. 814(A)(1) (responsive verdicts to “First Degree Murder”
include “Guilty of second degree murder”). In accordance with this law, the
jury was repeatedly instructed it could find every element of first-degree
murder—including specific intent—and still choose to return a verdict of
second-degree murder. The jury also was instructed it could convict of second-
degree murder without finding specific intent. That means the jury could
return its lawful second-degree murder conviction after (a) finding specific
intent, (b) finding no specific intent, or (c) declining to consider the question of
specific intent. To infer why the Langley II jury convicted him only on second-
degree murder “would require speculation into what transpired in the jury
room,” and would require us to “scrutinize” the jury’s “failures to decide” rather
than its actual decision. Yeager, 557 U.S. at 122. We cannot do that. The
existence of three possibilities for the actual verdict means the issue of specific
intent was not essential to the judgment. And since there could be no
preclusion even under the broader civil preclusion rules, there certainly can be

30
 Case: 16-30486 Document: 00514985887 Page: 31 Date Filed: 06/06/2019

No. 16-30486

no issue preclusion under Ashe. Again, the state court’s judgment would
survive de novo review. See Langley IV, 61 So. 3d at 758.
Moreover, the instructions gave the jury a rational reason not to decide
the issue. If the jury wanted to reconvene for a punishment hearing to
sentence Langley to death, it would have to confront the specific-intent issue,
find it, and convict him of first-degree murder. But if the jury chose second-
degree murder, it could convict without deciding the specific-intent issue, avoid
a separate sentencing hearing, and ensure Langley would spend the rest of his
life behind bars. The jury instructions were explicit to that effect: “Whoever
commits the crime of Second Degree Murder shall be punished by life
imprisonment at hard labor without the benefit of probation, parole, or
suspension of sentence.” And Langley’s lawyer used these instructions to plead
for the jury’s mercy. The record suggests the jury might’ve chosen second-
degree murder for precisely this reason. See Langley II Sentencing Tr. at 15–
16 (May 22, 2003). The state court therefore was objectively correct to conclude
the jury could have avoided deciding the specific-intent issue by reaching a
“compromise verdict” that sentenced Langley to life in prison. Langley IV, 61
So. 3d at 757. 9
Third and finally, Langley cannot prove the issue of specific intent was
decided in a “valid and final” judgment even under the (broader) civil
preclusion rules. See RESTATEMENT (SECOND) OF JUDGMENTS § 27 (one

9 This possibility makes the panel’s grant of habeas relief all the more untenable. The
point of the preclusion doctrines is to protect verdicts against collateral attacks by “multiple
lawsuits” and to enforce “repose.” Montana v. United States, 440 U.S. 147, 153–54, 163
(1979). That means “a losing litigant deserves no rematch after a defeat fairly suffered.”
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991). It would be the height
of irony for Langley to convince the jury to choose second-degree murder so he could spend
the rest of his life in jail—only to demand a rematch on the basis of issue preclusion,
collaterally attack the conviction, and walk free. And whatever else might be said about
treating the jury like a pawn in this way, it hardly respects “the fundamental role of juries.”
Post at 63 (Costa, J., dissenting).
31
 Case: 16-30486 Document: 00514985887 Page: 32 Date Filed: 06/06/2019

No. 16-30486

prerequisite of preclusion is the issue was decided in a “valid and final” civil
judgment); SHAPIRO, supra, at 29 (“In addition to the requirement of ‘validity,’
a judgment must be ‘final’ to be entitled to recognition.”). When a judgment is
partially reversed on appeal, “[t]here is no preclusion as to the matters vacated
or reversed.” 18A WRIGHT & MILLER, supra, § 4432; cf. Aguillard v. McGowen,
207 F.3d 226, 229 (5th Cir. 2000) (“A conviction overturned on appeal cannot
constitute a final judgment for purposes of collateral estoppel.”). And the
preclusive effect of the remainder of the judgment “is controlled by the actual
appellate disposition.” 18A WRIGHT & MILLER, supra, § 4432.
Here, the Louisiana intermediate appellate court reversed the Langley
II judgment and remanded for retrial on everything. See Langley II, 896 So.
2d at 212. The Louisiana Supreme Court agreed the “trial error require[d] a
reversal of Langley’s conviction and sentence,” but held, under Louisiana law,
the jury’s conviction for the lesser-included offense of second-degree murder
precluded retrying Langley for the greater offense of first-degree murder. See
Langley III, 958 So. 2d at 1170 (citing LA. CODE CRIM. PROC. ANN. art. 598(A)).
That was the entirety of its preclusion decision; it remanded everything else
for retrial. See id. at 1171. This “actual appellate disposition” means, even
under the ordinary rules applicable to civil judgments, the State would not be
issue-precluded from retrying Langley for second-degree specific-intent
murder. 18A WRIGHT & MILLER, supra, § 4432. And we know one thing with
confidence: The Double Jeopardy Clause’s issue-preclusion ingredient cannot

32
 Case: 16-30486 Document: 00514985887 Page: 33 Date Filed: 06/06/2019

No. 16-30486

sweep more broadly than the equitable doctrine that has governed civil cases
for centuries. See Bravo-Fernandez, 137 S. Ct. at 357–58. 10
3.
The dissenters offer four responses to our de novo rejection of Langley’s
claim. The first is confusing. The second is imaginary. The third is irrelevant.
And the fourth is unfortunate.
First, the confusion: The dissenters excoriate our reliance on the
Restatement (Second) of Judgments as somehow constituting a “doctrinal
innovation” in issue-preclusion law. See, e.g., post at 45, 59 (Higginson, J.,
dissenting). But as noted above, the Supreme Court itself “regularly turns to
the Restatement (Second) of Judgments for a statement of the ordinary
elements of issue preclusion.” B&B Hardware, 135 S. Ct. at 1303; see also, e.g.,
Herrera v. Wyoming, --- S. Ct. ---, 2019 WL 2166394, at *7 (May 20, 2019); id.
at *16–20 (Alito, J., dissenting); Kircher v. Putnam Funds Tr., 547 U.S. 633,
646–47 (2006); New Hampshire v. Maine, 532 U.S. 742, 748–49 (2001); Arizona
v. California, 530 U.S. 392, 414 (2000); Baker v. Gen. Motors Corp., 522 U.S.
222, 233 n.5 (1998); United States v. Stauffer Chem. Co., 464 U.S. 165, 171
(1984); Montana v. United States, 440 U.S. 147, 153–54 (1979).
Unsurprisingly, the Supreme Court also relies on the Restatement to

10 This is not to say the Langley II judgment “could have no preclusive effect on the
[Langley III trial].” Post at 61 (Higginson, J., dissenting); see also id. at 46 (arguing our
“Restatement-based analysis sows doubt that any part of the [Langley II ] verdict was a valid
final judgment”); post at 64–65 (Costa, J., dissenting) (similar). The Louisiana Supreme
Court held the Langley II conviction for second-degree murder barred retrial for the greater
offense of first-degree murder. See Langley III, 958 So. 2d at 1169–70 (citing, inter alia,
Green, 355 U.S. at 188, 193). We sow no doubt about that, as we’ve already explained. See
supra n.5. The U.S. Supreme Court has repeatedly reminded us, however, that offense
preclusion under Green and issue preclusion under Ashe are different. See, e.g., Currier, 138
S. Ct. at 2150. We agree with the state court that Langley II does not trigger Ashe issue
preclusion. This case no more threatens the “unassailable” finality of Langley II than do
other cases to which Ashe does not apply. See, e.g., Sattazahn, 537 U.S. at 113–15 (holding
finality concerns do not bar second prosecution for capital murder even after first trial yielded
judgment of life imprisonment).
33
 Case: 16-30486 Document: 00514985887 Page: 34 Date Filed: 06/06/2019

No. 16-30486

determine the bounds of Ashe issue preclusion. See, e.g., Bravo-Fernandez, 137
S. Ct. at 357–58; Bobby v. Bies, 556 U.S. 825, 834, 837 (2009). There is nothing
remotely “innovati[ve]” about our reliance on the Restatement here. Post at 59
(Higginson, J., dissenting). 11
Equally baffling is the dissenters’ concern over whether the state courts
relied on the Restatement. E.g., post at 45 (Higginson, J., dissenting). Under
AEDPA’s relitigation bar, the state court’s reasoning can matter. See, e.g.,
Wilson, 138 S. Ct. at 1191–92. But we’re not discussing the Restatement to
determine whether the relitigation bar protects the state court’s judgment.
We’re discussing it to hold that—even without the bar—the state court was
correct under de novo review to find no issue preclusion. Supreme Court
precedents (and our own) specifically authorize us to deny a state prisoner’s
habeas claim under either the relitigation bar or de novo review. See
Thompkins, 560 U.S. at 390; Mirzayance, 556 U.S. at 123–24; Salts, 676 F.3d
at 480. We previously discussed the former; here we’re discussing the latter.
The dissenters appear confused over which standard applies where.
Their second response is imaginary. The dissenters posit a hypothetical
jury trial with instructions that were never actually given. It’s simply not true
the judge instructed the jurors “to begin with the single charge of first degree
murder and . . . work their way down through the list of responsive verdicts.”
Post at 58 (Higginson, J., dissenting). Nor did the court instruct the Langley
II jury that it could consider second-degree murder “only if it were not . . .

11 The dissenters say these cases are irrelevant because they rejected Ashe claims by
deciding Ashe did not “apply in a given situation” rather than “actually adjudicating” the
claims. Post at 59 n.19 (Higginson, J., dissenting); see also id. at 55. This purported
distinction—between Ashe’s applicability and Ashe’s application—has no substance. If a
doctrine does not “apply in a given situation,” then a claim based on that doctrine fails. And
a court so holding has “actually adjudicat[ed]” the claim. Whatever the dissent means, it
cannot dispute that in both cases the Court considered an Ashe claim, relied on the
Restatement to analyze that claim, and then rejected the claim on the merits.
34
 Case: 16-30486 Document: 00514985887 Page: 35 Date Filed: 06/06/2019

No. 16-30486

convinced” of specific intent. Id. at 48. The actual jury instructions said the
exact opposite: The court instructed the jury it could find Langley guilty of
“SECOND DEGREE MURDER” based on a finding “THAT THE
DEFENDANT ACTED WITH SPECIFIC INTENT TO KILL.” The dissenters
cannot find issue preclusion by ignoring the instructions given to the jury and
imagining others that were not.
Their third response is irrelevant. The dissenters make much of the jury
instruction that said, “[i]f you are convinced beyond a reasonable doubt that
[Langley] is guilty of first degree murder, your verdict should be ‘guilty.’ ” Post
at 48 (Higginson, J., dissenting) (second alteration in original). The dissenters
say this instruction prohibited the jury from returning a verdict for second-
degree specific-intent murder. Of course, that ignores the other instructions
that empowered the jury to return a “SECOND DEGREE MURDER” verdict
based on a finding “THAT THE DEFENDANT ACTED WITH SPECIFIC
INTENT TO KILL.” It ignores Langley’s agreement—at trial and here—that
the jury could return a verdict for second-degree specific-intent murder. See
supra at 29. And it would require holding the jury instructions violated
Louisiana law. See supra at 30–31 (noting, under Porter and Article 814(A)(1),
the jury could find specific intent and choose second-degree murder). “We do
not think that a federal court can presume so lightly that a state court failed
to apply its own law.” Bell v. Cone, 543 U.S. 447, 455 (2005) (per curiam).
But even if Langley could misconstrue the instructions as violating state
law, it would still be irrelevant. Schiro holds that issue preclusion does not
attach where “[t]he jury instructions on the issue of intent to kill were . . .
ambiguous.” 510 U.S. at 234. If we agree with the dissenters on anything, it’s
that one instruction very clearly told the Langley II jury it could convict of
second-degree specific-intent murder. And if we spot the dissenters all of their

35
 Case: 16-30486 Document: 00514985887 Page: 36 Date Filed: 06/06/2019

No. 16-30486

points arguendo, the absolute most they can prove is that a second jury
instruction told the jury it could not convict of second-degree specific-intent
murder. That ambiguity would put the case on all fours with Schiro. And it
would compel the denial of habeas relief—with AEDPA or without it.
Fourth and finally, the unfortunate: The dissenters accuse us of
“dangerously disregard[ing] Supreme Court precedent,” “eras[ing]
constitutional protections,” and tearing “many pages . . . from the United
States and Federal Reporters.” Post at 47, 61 (Higginson, J., dissenting).
Worse, they question whether our real motivation is to underrule Ashe because
we “disagree strongly with [its] foundations.” Id. at 46 n.5. Worse still, they
say we have bartered away our legal principles “wholesale” to reach a preferred
policy result. Id. at 45–46. This sort of rhetoric is regrettable.
We will not respond in kind. But we will make our motivation patently
clear: It is the law. Ashe, Turner, and every other Supreme Court case finding
issue-preclusion under the Double Jeopardy Clause involved a general
acquittal. This one does not. If we were state judges, we’d obviously still
disagree with the dissenters about whether issue preclusion attaches to
Langley’s conviction. That much is obvious from our de novo review of the
issue-preclusion question and the dissenters’ very different approach to it.
But of course, we are not state judges. And we are bound by AEDPA.
Under AEDPA’s relitigation bar, the very existence of reasonable
disagreement forecloses relief. See, e.g., Musladin, 549 U.S. at 76–77. Yet the
dissenters do not acknowledge this standard, let alone explain how their
analysis would be any different with or without it. See Harrington v. Richter,
562 U.S. 86, 101 (2011) (reversing the Ninth Circuit because “it is not apparent
how the Court of Appeals’ analysis would have been any different without
AEDPA”).

36
 Case: 16-30486 Document: 00514985887 Page: 37 Date Filed: 06/06/2019

No. 16-30486

* * *
The principal Founding-era concern regarding the scope of Article III
was that it could empower federal judges to run roughshod over state courts.
See, e.g., Brutus, Essay I (Oct. 18, 1787), in 2 THE COMPLETE ANTI-FEDERALIST
363, 366–67 (Herbert J. Storing ed. 1981). Few things bring this concern into
sharper relief than using logic games in federal habeas to set free from state
custody a thrice-convicted child-murderer. 12
Judgment AFFIRMED. Habeas DENIED.

12 The dissenters suggest we should not care about the Anti-Federalists because they
“lost.” Post at 63 (Costa, J., dissenting). But Judge Costa’s “winners” cared about the Anti-
Federalists—so much so they wrote an entire book to respond to the Anti-Federalists’ views.
See generally THE FEDERALIST (Clinton Rossiter ed. 1961); see specifically id. NO. 81, at 486
(responding to Brutus I); see also THE ESSENTIAL ANTIFEDERALIST xiv (W.B. Allen & G. Lloyd
eds., 2d ed. 2002) (“The Federalist should be read in light of the Antifederalist critique and
not the other way around. As [George] Washington himself implied, if it were not for the
Antifederalists, The Federalist would not be as good as it is.”). And many of the reasons that
compelled Madison, Jay, and Hamilton to care about the Anti-Federalists are still valid
today. See Andrew S. Oldham, The Anti-Federalists: Past as Prologue, 12 N.Y.U. J. L. &
LIBERTY (forthcoming 2019).
37
 Case: 16-30486 Document: 00514985887 Page: 38 Date Filed: 06/06/2019

No. 16-30486

JENNIFER WALKER ELROD and CATHARINA HAYNES, Circuit Judges,
joined by CARL E. STEWART, Chief Judge, concurring:

We concur in the judgment of the en banc court in this case. We write
separately because we conclude that this case is resolvable based solely on the
limitations on federal court habeas review as a result of AEDPA and the
narrowness of Ashe v. Swenson, 397 U.S. 436 (1970), as well as the nuances of
Louisiana law.
As is well established, and as the majority opinion explains, our review
of legal decisions by state courts in this context is limited to decisions “contrary
to” or involving “an unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United States.” Majority Op.
at 12 (emphasis added) (quoting 28 U.S.C. § 2254(d)(1)). The Supreme Court,
as recently as a few months ago, emphasized these limitations in Shoop v. Hill,
where it vacated a Sixth Circuit decision that relied on Supreme Court
precedent to conclude that habeas relief was warranted. 139 S. Ct. 504, 507,
509 (2019) (per curiam). The problem was that the Supreme Court authority
on which the Sixth Circuit relied postdated the state court’s decision. Id. at
507. The Supreme Court rejected the Sixth Circuit’s reasoning that the
subsequent precedent was “merely an application of what was clearly
established” by earlier Supreme Court case law. Id. at 508. So, even an
extension the Supreme Court itself has made is out of bounds if that extension
came after the state court decision.
As the majority opinion points out, the original panel opinion in this case
did and would have to extend Ashe, something we cannot do. Majority Op. at
14–16. Ashe involved different facts—namely, an explicit acquittal instead of
an implied acquittal based on a conviction for a lesser offense. See Ashe, 397
U.S. at 439, 445–46. Thus, the AEDPA analysis ends there. The principal
dissenting opinion’s suggestion that the state court cited the right cases and
38
 Case: 16-30486 Document: 00514985887 Page: 39 Date Filed: 06/06/2019

No. 16-30486

perhaps reached a debatable result but applied the wrong reasoning is contrary
to our limited AEDPA review particularly where, as here, the state court was
examining state law and ruling on whether the jury’s determinations in
Langley II precluded Langley’s conviction in Langley III. See Majority Op. at
24–25.
Although the above is enough, another straightforward basis supports
affirmance: Even if, as the dissenting opinions argue, we were to accept that
applying Ashe to an implied acquittal when there was an actual conviction is
somehow not an extension of precedent, the Louisiana court’s conclusion under
Ashe was objectively correct. See State v. Langley, 61 So. 3d 747, 757–58 (La.
Ct. App. 2011) (holding that Langley had “not carried his burden of proving
that the element of specific intent was actually decided” because “[i]t is possible
that the jury convicted [Langley] of specific intent second degree murder”).
Under Louisiana law, it is not only possible but also entirely permissible that
the Langley II jury convicted Langley of second degree specific intent murder.
After all, in a Louisiana criminal trial, “the jury must be given the option to
convict the defendant of the lesser offense, even though the evidence clearly
and overwhelmingly supported a conviction of the charged offense.” State v.
Porter, 639 So. 2d 1137, 1140 (La. 1994). While perhaps unique, this statutory
“responsive verdict” right has existed in Louisiana law “[s]ince before the turn
of the century[.]” Id.
The principal dissenting opinion overlooks this critical anomaly in
Louisiana law when it concludes that the jury necessarily decided the issue of
specific intent in Langley’s favor. See Principal Dissenting Op. at 53. As the
majority opinion observes, the trial court explicitly instructed the Langley II
jury that it could convict Langley of second degree murder based on a finding
of “SPECIFIC INTENT TO KILL.” Majority Op. at 35. The jury was further

39
 Case: 16-30486 Document: 00514985887 Page: 40 Date Filed: 06/06/2019

No. 16-30486

instructed, in line with Louisiana’s responsive verdict rule, that second degree
murder was a “responsive lesser offense[]” to first degree murder. Majority Op.
at 21. Thus, under Louisiana law as explained in the jury instructions, even if
the jury found that the evidence supported a conviction for first degree murder,
it could nonetheless vote to convict Langley of second degree specific intent
murder. This, then, is the logical flaw in the principal dissenting opinion: it
assumes that, in returning a verdict of second degree murder, the jury must
have determined that the evidence was insufficient for a first degree murder
conviction. But Louisiana law tells us that is simply not so. 1
In sum, while the principal dissenting opinion emphasizes that we must
“focus on ‘the actual instructions given the jury’ and assume the jury ‘would
have been obligated’ to follow [them,]” it fails to assess the totality of those
instructions, particularly the instruction that the jury was not required to
answer Question 1 on the verdict form before proceeding to Question 2.
Principal Dissenting Op. at 42 (quoting Turner v. Arkansas, 407 U.S. 366, 369
(1972)). The dissenting opinion’s conclusion that the jury failed to find specific
intent was based on the trial judge’s oral instruction that the jury’s “verdict
should be ‘guilty’” if it was “convinced beyond a reasonable doubt that [Langley
was] guilty of first degree murder[.]” Principal Dissent at 48. But this ignores
the written jury instructions stating that second degree murder was a proper
responsive verdict as well. The dissenting opinion’s failure to consider the jury

1 This is not the same thing as jury nullification. True, both concepts involve a jury
declining to convict the defendant of an offense that the evidence supports, which is perhaps
the reason for the Louisiana Supreme Court’s observation that they are “similar.” Porter,
639 So. 2d at 1140. But similarity is not “equivalence.” Principal Dissent at 60 n.21. While
a nullifying jury acts outside the bounds of the law, a jury convicting of a lesser offense under
the Louisiana rule provides a lawful responsive verdict. Compare id. (noting that responsive
verdicts are a “statutory right”), with 75A Am. Jur. 2d Trial § 667 (2019 update) (“Jury
nullification refers to the jury’s power to disregard the rules of law and evidence in order to
acquit the defendant[.]”).
40
 Case: 16-30486 Document: 00514985887 Page: 41 Date Filed: 06/06/2019

No. 16-30486

instructions as a whole leads it to draw inferences about the jury’s verdict that
do not logically follow from the totality of the circumstances. Taken as a whole,
the jury instructions actually undercut those inferences.
The principal dissenting opinion construes the Louisiana court’s jury
instructions like ordinary federal jury instructions and in doing so disregards
a significant nuance in Louisiana law. This runs counter to AEDPA’s goal of
advancing “comity, finality, and federalism” and threatens the “mutual respect
and common purpose existing between the States and the federal courts.”
Williams v. Taylor, 529 U.S. 420, 436 (2000). To preserve that careful balance,
we should adhere to Louisiana’s long-established responsive verdict rule and
afford the Langley II jury’s verdict the high level of respect that it is due.
Simply put, Louisiana’s Third Circuit Court of Appeal did not
unreasonably apply clearly established federal law and, based on its superior
understanding of the way responsive verdicts work in Louisiana, its conclusion
was objectively correct. Accordingly, the district court correctly denied relief.
We therefore join in the judgment of affirmance of the district court’s denial of
habeas relief.

41
 Case: 16-30486 Document: 00514985887 Page: 42 Date Filed: 06/06/2019

No. 16-30486

STEPHEN A. HIGGINSON, Circuit Judge, joined by WIENER, DENNIS,
GRAVES, and COSTA, Circuit Judges, dissenting:

The majority concludes that the Louisiana Third Circuit Court of Appeal
reasonably rejected Ricky Langley’s argument that Ashe v. Swenson, 397 U.S.
436 (1970), precluded the State of Louisiana retrying the issue of Langley’s
specific intent to kill. The majority says that the panel, in its now-vacated
decision granting relief, enforced an unduly rigid conception of Ashe and
impermissibly faulted the state court for not extending Ashe. But the majority’s
opinion, ostensibly an effort to set Supreme Court precedent straight, never
explains that precedent. It does not, because it cannot. To say what the
governing law actually requires is to pull a thread that unravels the majority’s
analysis.
Ashe preclusion operates at the level of issues––that is, elements of an
offense, rather than offenses in toto. Ashe requires reviewing courts to decide
“whether a rational jury could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from consideration.” 397 U.S.
at 444. We are to decide that question by “examin[ing] the record of a prior
proceeding, taking into account the pleadings, evidence, charge, and other
relevant matter.” Id. In identifying what the jury “necessarily determined,” we
are to assume a rational jury, not to speculate about “what transpired in the
jury room.” Yeager v. United States, 557 U.S. 110, 122 (2009). We are to focus
on “the actual instructions given the jury” and assume the jury “would have
been obligated” to follow those instructions where they lead. Turner v.
Arkansas, 407 U.S. 366, 369 (1972). When the “only logical conclusion” is that
the jury necessarily decided the issue in the defendant’s favor, the Double
Jeopardy Clause precludes retrying the defendant on that issue. Id. at 369–70.
What the majority derides as “logic games” is thus no more, and no less, than
the test that the Supreme Court has directed us to apply.
42
 Case: 16-30486 Document: 00514985887 Page: 43 Date Filed: 06/06/2019

No. 16-30486

Langley faced three possible offenses of conviction at his 2003 trial that
are relevant here: the charged offense, first degree specific-intent murder; and
two responsive verdicts, second degree specific-intent murder and second
degree felony murder. 1 The jury’s verdict, in accordance with state law, 2 was
“guilty of second degree murder,” not specifying the type. 3
The Louisiana Court of Appeal suggested three explanations for the
jury’s verdict, concluding that it could not say whether the jury had necessarily
decided the issue of Langley’s specific intent. State v. Langley, 61 So. 3d 747,
757–58 (La. Ct. App. 2011). Properly applied, Ashe’s principles foreclose two of
the three explanations, just as they compel the remaining one: Langley’s
specific intent to kill was the only element of murder disputed in 2003; his
lawyers successfully disputed it; the jury acquitted him of first degree specific-
intent murder; hence the jury convicted him of second degree felony murder.
The Louisiana Court of Appeal’s other explanations, avoiding Ashe
protection, were that the jury may have chosen second degree specific-intent
murder or may simply have reached a “compromise verdict” regardless of
specific intent. Langley, 61 So. 3d at 757–58. Both contravene Ashe and
Turner’s directions to assume a rational jury that follows the facts where its
instructions lead. If the State had proved Langley’s specific intent, a rational
jury following the instructions given here would have convicted him of first
degree specific-intent murder.
Thus, to say what Ashe requires is to see that it leaves just one
explanation for Langley’s 2003 conviction: acquittal on the issue of specific

1 Second degree felony murder is the offense that the majority obscures with the
paraphrase “something less than specific intent murder” in its explanation of the Louisiana
Court of Appeal’s decision.
2 See La. Code Crim. Proc. Ann. art. 814(A)(1).
3 The majority uses a stylized X & Y illustration in describing the issue, but it erases the

difficulty by cutting the number of possible offenses from three to two.
43
 Case: 16-30486 Document: 00514985887 Page: 44 Date Filed: 06/06/2019

No. 16-30486

intent. In 2007, the Louisiana Supreme Court, relying on both state and federal
law, ruled that Langley’s 2003 verdict acquitted him of first degree murder,
barring retrial on that charge. State v. Langley, 958 So. 2d 1160, 1170 (La.
2007). The Louisiana Code of Criminal Procedure operated to make the jury’s
verdict of second degree murder an acquittal of first degree murder. Id. (citing
La. Code Crim. Proc. Ann. art. 598(A)). As the Louisiana Supreme Court
recognized, this was also in keeping with long-standing United States Supreme
Court precedent recognizing implied acquittals. Id. at 1169 (citing Green v.
United States, 355 U.S. 184, 193 (1957)).
It is this acquittal to which Ashe issue preclusion attaches. Langley’s
argument is straightforward and grounded in Supreme Court precedent: Ashe,
which is a half-century old, and Green, which is even older. This Supreme
Court precedent entitles Langley to habeas relief. 4
If the majority dealt squarely with Langley’s argument, we could
perhaps have avoided much length and complication in our combined opinions.
The majority does acknowledge that Langley was acquitted of first degree
specific-intent murder in 2003. But the majority is unable to explain why that
acquittal can bar retrial on the charge, yet not on the charge’s elements. And
so the majority attempts to rationalize the state court’s decision in other ways.
In Part III(A)(2), the majority suggests that the Louisiana Court of
Appeal refused to extend Ashe to implied acquittals on the theory that the law
did not clearly establish that it was required to do so. But no extension was
required, and the state court plainly believed that Ashe applied. It explained
that the “Double Jeopardy Clause protects against successive prosecutions

4As the panel stated, the State may re-prosecute Langley for second degree murder under
La. R.S. 14:30.1—or for any other crime—on a theory that does not have as an essential
element proof of Langley’s specific intent to kill or harm.
44
 Case: 16-30486 Document: 00514985887 Page: 45 Date Filed: 06/06/2019

No. 16-30486

following acquittal or conviction” and stated the correct Ashe standard. 61 So.
3d at 757.
Next, in Part III(B)(1), the majority rationalizes the Louisiana Court of
Appeal’s decision with reference to Schiro v. Farley, 510 U.S. 222 (1994). But
Schiro simply had different facts than this case. Moreover, Schiro never
appeared in the state court’s decision, in name or in substance, and it has never
played a part in the State’s opposition to Langley’s habeas petition.
By relying on post hoc rationalizations that cannot be squared with what
the state court actually said, the majority departs from the Supreme Court’s
recent direction on review of reasoned state-court decisions: “a federal habeas
court simply reviews the specific reasons given by the state court and defers to
those reasons if they are reasonable.” Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018) (emphasis added). The obligation to search for supportive reasoning
obtains only when a state court issues a decision unaccompanied by any
reasoning from itself or a lower state court. Id. at 1195; see Harrington v.
Richter, 562 U.S. 86 (2011). Richter’s “could have supported” framework does
not apply otherwise. Wilson, 138 S. Ct. at 1195.
The majority also departs from the Supreme Court’s constitutional
command in Ashe. The majority imports extended discussion, far more than of
Ashe itself, from the Second Restatement of Judgments, which the Supreme
Court has never used to adjudicate an Ashe claim. In place of the
straightforward Ashe inquiry explained above, the majority develops a novel
set of “essential prerequisites,” analyzing Langley’s claim under a framework
that played no part in the Louisiana Court of Appeal’s decision or in the State’s
arguments at any stage in this litigation.
In turn, the majority’s wholesale substitution of principles, embraced
without either district court or adversary treatment, broadly threatens double

45
 Case: 16-30486 Document: 00514985887 Page: 46 Date Filed: 06/06/2019

No. 16-30486

jeopardy doctrine. Rather than dealing squarely with Langley’s argument that
Ashe preclusion flows from Langley’s acquittal of first degree murder in 2003,
the majority’s Restatement-based analysis sows doubt that any part of the
2003 verdict was a valid final judgment. In the process, the majority threatens
a double jeopardy pillar: the “unassailable” finality of acquittals, even when
“based upon an egregiously erroneous foundation.” Yeager, 557 U.S. at 122–23
(quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)). Perhaps the
majority’s clash with basic doctrine is inadvertent, but the risk of such clashes
is why we follow precedent, rather than developing novel bodies of law without
adversary treatment, in the face of contrary Supreme Court commands.
Why this avoidance of Supreme Court precedent, both old and new?
Perhaps because its correct application yields an unthinkable result due to the
horror of Langley’s crime. 5 The majority accurately describes the gruesome
details, which shock and disgust. As it happens, Langley’s 2003 jury had been
instructed on predicate offenses for felony murder that were not enumerated
in the felony murder statute at the time of Langley’s offense. The State
discovered this error on the eve of the 2009 trial, which appeared to close off
the felony murder route to a new second degree murder conviction. That left
the State in a bind: charge lesser offenses or retry the specific intent issue
decided in Langley’s favor in 2003. The State chose the latter, and here we are.
Though rejecting the State’s choice may seem unthinkable, the
monstrosity of Langley’s crime does not put him beyond constitutional
protection. The Constitution protects all, including the least and worst among
us. Indeed, its safeguards against the profound deficiencies that marred

5 Or perhaps because several Justices have recently intimated doubts about Ashe. See
Currier v. Virginia, 138 S. Ct. 2144, 2149–50 (2018). But it remains the Supreme Court’s
“prerogative alone to overrule one of its precedents,” even when circuit judges disagree
strongly with their foundations. State Oil Co. v. Khan, 552 U.S. 3, 20 (2001).
46
 Case: 16-30486 Document: 00514985887 Page: 47 Date Filed: 06/06/2019

No. 16-30486

Langley’s first two trials are the reason that the majority is able to call Langley
“thrice-convicted.” If commission of serious crime suffices to erase
constitutional protections, many pages must be torn from the United States
and Federal Reporters. But it is not in our power to abrogate constitutional
law announced by the Supreme Court, nor should we do so indirectly.

I
The vacated panel opinion recounts this case’s long history in detail,
Langley v. Prince, 890 F.3d 504, 508–14 (5th Cir. 2018), and the majority’s
opinion notes the relevant points. A brief review is sufficient here. Committing
the offense in 1992, Langley first stood trial in 1994, and his conviction of first
degree murder was then set aside due to a flaw that, while substantial, is not
significant here. See State v. Langley, 813 So. 2d 356 (La. 2002).
In 2003, the trial relevant to our Ashe inquiry took place. The State
charged Langley again with first degree murder, and Langley pleaded not
guilty as well as not guilty by reason of insanity. His counsel conceded that
Langley had killed the victim, a boy six years old. The defense focused instead
on Langley’s state of mind. Contrary to the majority’s assertion that evidence
of Langley’s specific intent was overwhelming, defense counsel argued that
Langley could not form the specific intent to kill because his mental illness,
history of trauma, and exposure to a toxic prenatal environment had rendered
him unable to understand or intend the consequences of his actions. 6

6 For example, the jury heard testimony regarding Langley’s history of mental
breakdowns; his family trauma; his significant pre-natal exposure to medical drugs, alcohol,
and x-rays (because months of his early gestation occurred while his mother was hospitalized
after a car accident, put in a body cast, and treated intensively by doctors who did not know
of the pregnancy); expert opinion on the permanent brain damage Langley may have incurred
from his toxic pre-natal environment; and expert opinion on Langley’s mental illness and
state of mind at the time of the killing.
47
 Case: 16-30486 Document: 00514985887 Page: 48 Date Filed: 06/06/2019

No. 16-30486

The trial judge––whose misconduct would cause this conviction to be set
aside 7––instructed the jury on first degree murder, which consisted of (1)
killing a human being (2) with specific intent to kill or to inflict great bodily
harm (3) with one or more aggravating factors. See La. R.S. 14:30(A). The State
pursued two possible aggravators––either that Langley was committing
second degree kidnapping or that the victim was under the age of twelve. See
id. 14:30(A)(5). Because the fact of the killing and the age of the victim were
not contested, the State needed only to prove that Langley had the requisite
specific intent.
Crucially for our Ashe inquiry, the trial judge instructed the jury to begin
with first degree murder, the charged offense: “[I]f you are convinced beyond a
reasonable doubt that [Langley] is guilty of first degree murder, your verdict
should be ‘guilty.’” The jury could then proceed to considering a lesser offense
only if it were not so convinced. The judge then instructed the jury on the lesser
offenses that Louisiana has deemed responsive to a charge of murder. The
judge explained that second degree murder consists of either: (1) killing a
human being (2) with specific intent to kill or inflict great bodily harm
(“specific-intent second degree murder”), see La. R.S. 14:30.1(A)(1), or (1)
killing a human being (2) while committing or attempting certain enumerated
felonies (“second degree felony murder”), see id. 14:30.1(A)(2). 8 As to second
degree felony murder, the judge instructed the jury that the relevant felonies
were second degree kidnapping, see id. 14:44.1, and cruelty to juveniles, see id.

7 The judge left the courtroom for significant portions of the proceedings, cut off the
defense’s closing argument, refused to entertain certain objections, and generally “failed to
maintain order and decorum” in the courtroom. See State v. Langley, 896 So. 2d 200, 203–07
(La. Ct. App. 2004).
8 The judge’s oral instructions erroneously defined specific-intent second degree murder

as the killing of a human being “with or without specific intent to kill or to inflict great bodily
harm.” (emphasis added). During deliberations, the jury received a written corrected
instruction, with the consent of both parties.
48
 Case: 16-30486 Document: 00514985887 Page: 49 Date Filed: 06/06/2019

No. 16-30486

14:93. The judge then told the jury: “If you are not convinced that [Langley] is
guilty of first degree murder, but you are convinced beyond a reasonable doubt
that [he] is guilty of second degree murder, the form of your verdict should be
‘guilty of second degree murder.’” Thus, under these instructions, and as the
Louisiana Supreme Court would later determine, 9 a second degree murder
verdict was an acquittal of first degree murder.
Consistent with state law, 10 the verdict form listed the possible
responsive verdicts—“guilty,” “guilty of second degree murder,” “guilty of
manslaughter,” “not guilty by reason of insanity,” and “not guilty”—and
instructed the jury to return one and only one of them. The jury returned a
verdict finding Langley guilty of second degree murder and, by operation of
state law, 11 acquitting him of first degree murder.
The Louisiana Court of Appeal then reversed and remanded for a new
trial due to the trial judge’s misconduct. See State v. Langley, 896 So. 2d 200,
212 (La. Ct. App. 2004). Significantly, the court believed that the judge’s
misconduct was structural error, rendering the verdict “an absolute nullity”
and permitting the State to re-try Langley for first degree murder. Id. at 210–
12. The State attempted to do just that, and Langley’s motion to quash the new
indictment brought the issue to the Louisiana Supreme Court, which ruled:
The instructions admonished jurors that if they were not convinced
beyond a reasonable doubt “that the defendant is guilty of First
Degree Murder, but you are convinced beyond a reasonable doubt
that the defendant is guilty of second degree murder the form of
your verdict should be guilty of Second Degree Murder.” Jurors
then returned a lawful, unanimous verdict convicting Langley of
second degree murder. Second degree murder is a crime under the

9 The just-quoted instruction was the basis for the Louisiana Supreme Court’s conclusion
that the jury acquitted Langley of first degree specific-intent murder. Langley, 958 So. 2d at
1170.
10 See La. Code Crim. Proc. Ann. art. 814(A)(1).
11 See La. Code Crim. Proc. Ann. art. 598(A).

49
 Case: 16-30486 Document: 00514985887 Page: 50 Date Filed: 06/06/2019

No. 16-30486

laws of Louisiana and is a responsive verdict to a charge of first
degree murder.
[…]
Under these circumstance[s], and by operation of longstanding
double jeopardy law, we hold that the unanimous verdict of guilty
of second degree murder returned by Langley’s jury in [Langley’s
second trial] implicitly acquitted him of first degree murder.
State v. Langley, 958 So. 2d 1160, 1170 (La. 2007) (citations omitted). This
ruling relied on both state and federal law. The Louisiana Supreme Court read
the jury instructions as requiring the jury to acquit on first degree murder
before considering second, and Louisiana law provides that “[w]hen a person
is found guilty of a lesser degree of the offense charged, the verdict . . . is an
acquittal of all greater offenses charged in the indictment.” Id. at 1169–70
(quoting La. Code Crim. Proc. Ann. art. 598(A)). The court also cited United
States Supreme Court precedent that, “when a defendant is convicted of a
lesser included offense and that conviction is overturned on appeal, the
conviction operates as an implied acquittal of the charged crime, prohibiting
the State from retrying the defendant on the original charge.” Id. at 1169
(citing Green, 355 U.S. at 193).
A bench trial followed in 2009, with first degree murder removed from
the indictment. Raising the Ashe issue, Langley’s counsel argued that specific-
intent second degree murder should also be removed, because the 2003 verdict
could be rationally explained only as an acquittal on the issue of Langley’s
specific intent. Second degree felony murder would be left as the most serious
charge. But the trial judge rejected Langley’s argument, so the indictment
contained both varieties of second degree murder. The next day, however, the
State orally withdrew the felony murder charge, having realized that its
preferred predicate offenses, second degree kidnapping and cruelty to
juveniles, were not enumerated in the felony murder statute at the time of

50
 Case: 16-30486 Document: 00514985887 Page: 51 Date Filed: 06/06/2019

No. 16-30486

Langley’s offense. Specific-intent second degree murder, already under the
cloud of Ashe, became the State’s only route to a murder conviction.
The judge ultimately found Langley guilty of second degree murder. The
ruling explicitly stated that “[t]he issue of specific intent . . . is necessary for
the determination of guilt,” and found that the requisite specific intent was
present. Langley’s counsel renewed the Ashe objection in a post-trial motion,
but the judge stood by his earlier ruling. The judge then imposed the
mandatory sentence of life imprisonment without parole.
On appeal, the Louisiana Third Circuit Court of Appeal issued the ruling
in question here. It recognized that the Double Jeopardy Clause applied
“following acquittal or conviction.” Langley, 61 So. 3d at 757 (quotation
omitted). It acknowledged Ashe “prohibits the state from relitigating an issue
of ultimate fact that has been determined by a valid and final judgment.” Id.
(citing Ashe, 397 U.S. at 443). It then correctly quoted the Ashe standard. Id.
(“[T]o determine which facts were ‘necessarily decided’ by the general acquittal
in the first trial, it is necessary to examine the record of the prior proceeding
in order to determine ‘whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to foreclose from
consideration.’”) (quoting Ashe, 397 U.S. at 444). The court’s Ashe analysis, in
full, is as follows:
When a lesser included offense to the crime charged is returned by
a jury it is not always possible to determine why that verdict was
reached. It is possible that the jury convicted the defendant of
specific intent second degree murder. It is possible that the jury
verdict was based on a jury finding under the felony-murder rule,
and the jury determined there was no specific intent to kill. It is
equally plausible that, given the nature of the case, the verdict
was, in fact, a compromise verdict. Regardless of the jury’s thought
process in this particular case, clearly the argument that the issue
of specific intent was “necessarily determined” is unsupported. The

51
 Case: 16-30486 Document: 00514985887 Page: 52 Date Filed: 06/06/2019

No. 16-30486

defendant has not carried his burden of proving that the element
of specific intent was actually decided in the previous trial.
Id. at 757–58. The Louisiana Supreme Court then declined discretionary
review, 78 So. 3d 139 (La. 2012), leading Langley to federal habeas and
ultimately to our court.

II
Ashe tells courts how to identify the issues that a jury necessarily
determined, and its method is directed squarely at deciphering general
verdicts:
Where a previous judgment of acquittal was based upon a general
verdict, as is usually the case, this approach requires a court to
examine the record of a prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.
397 U.S. at 444. We are to assume a rational jury, not to speculate about “what
transpired in the jury room.” Yeager, 557 U.S. at 122. Indeed, relief under Ashe
depends on the assumption that the jury acted rationally. When the jury’s
verdict is “irreconcilably inconsistent”––for instance, convicting on a compound
offense but acquitting on one of its predicates––the verdict has no preclusive
effect. See Bravo-Fernandez v. United States, 137 S. Ct. 352, 356–57 (2016). A
court applying Ashe also assumes that the jury believed any “substantial and
uncontradicted evidence of the prosecution on a point the defendant did not
contest.” Ashe, 397 U.S. at 444 n.9 (quotation omitted). Finally, a court
applying Ashe assumes that the jury followed its instructions. This principle is
implicit in Ashe’s concept of a rational jury, and it is explicit in Turner v.
Arkansas, 407 U.S. 366 (1972). There, the Supreme Court focused on “the

52
 Case: 16-30486 Document: 00514985887 Page: 53 Date Filed: 06/06/2019

No. 16-30486

actual instructions given to the jury” and assumed that the jury “would have
been obligated” to follow them where the facts in evidence led. Id. at 369.
When there is just a “single rationally conceivable issue in dispute before
the jury,” Ashe, 397 U.S. at 444, as there is here, this can be a straightforward
inquiry. At trial in 2003, the jury was instructed on three offenses relevant
here: first degree specific-intent murder; second degree specific-intent murder;
and second degree felony murder. The two degrees of specific-intent murder
shared two elements: the killing of a human being and the specific intent to
kill or inflict great bodily harm. First degree differed from second only by
specifying the age of the victim––under twelve––an element not in dispute.
The fact of the killing was not disputed either. Specific intent was thus the
single rationally conceivable issue in dispute before the jury. If specific intent
had been proven, a rational jury following the instructions given here would
have been obligated to choose first degree murder. 12 The jury did not,
indicating that it had necessarily decided the issue of specific intent in
Langley’s favor. As such, the jury’s choice of second degree murder can be
rationally explained only as a felony murder verdict.
As noted at the outset, the Ashe analysis forecloses the two other
possibilities suggested by the Louisiana Court of Appeal: that the jury
convicted Langley of specific-intent second degree murder, or that the jury
reached a compromise verdict. 61 So. 3d at 757–58. The jury instructions, if
rationally followed, rule out both. The jury was told to start with first degree

12 As noted, the Louisiana Code of Criminal Procedure undergirds these instructions. A
responsive verdict of “guilty of second degree murder” operates to acquit a defendant charged
with first degree murder of that offense while also convicting him of second degree murder.
See La. Code Crim. Proc. Ann. arts. 598(A), 814(A)(1). That verdict is also the only mechanism
by which a jury can achieve that result. If the jury had returned a verdict of “not guilty of
first degree murder,” the judge would have been required to reject it. Id. art. 813. By following
this state law in interpreting the 2003 verdict, I do only what the Louisiana Supreme Court
did in 2007. I thus cannot agree with the concurring opinion’s view of the jury instructions.
53
 Case: 16-30486 Document: 00514985887 Page: 54 Date Filed: 06/06/2019

No. 16-30486

murder, two elements of which were uncontested. If the State had proved
specific intent, the remaining element, the jury would have been obligated to
convict Langley of first degree murder, not second degree murder. Likewise,
the jury instructions did not suggest or permit a compromise verdict on a lesser
offense despite convincing evidence of a greater offense. The Louisiana Court
of Appeal’s speculation about a compromise cannot be squared with Turner’s
teaching to treat juries as “obligated” to follow their instructions.
Consequently, the Louisiana Court of Appeal’s alternative explanations were
objectively unreasonable applications of Ashe and its progeny.
There is thus only one rational explanation of the jury verdict’s acquittal
of first degree murder and conviction of second degree murder: the jury
acquitted on the issue of specific intent, hence convicted Langley of felony
murder. Langley’s retrial in 2009 should not have been allowed to proceed on
the charge of second degree specific-intent murder. The resulting conviction
therefore violates the Double Jeopardy Clause, entitling Langley to habeas
relief.

III
The majority’s reasons for not disturbing the Louisiana Court of Appeal’s
decision depend either on new rationales not employed by the state court or on
avoidance of what Ashe requires. Each move the majority makes is therefore a
wrong step on the landscape of Supreme Court precedent.
A
The majority begins by framing the panel’s ruling as requiring an
extension of Ashe: “A fairminded jurist could conclude the rule clearly
established in Ashe does not apply to a conviction rather than a general
acquittal.” Supra, Part III(A)(2). This statement is puzzling at first glance,

54
 Case: 16-30486 Document: 00514985887 Page: 55 Date Filed: 06/06/2019

No. 16-30486

because the Louisiana Supreme Court ruled that Langley was acquitted of first
degree specific-intent murder. Langley, 958 So. 2d at 1170. The 2009 trial
proceeded on that ruling, and any possible preclusion would attach to that
acquittal. The majority means to say that Langley received an implied
acquittal of first degree murder alongside his conviction of second degree
murder, and the law is not clearly established that Ashe preclusion may arise
from such a verdict.
The majority is quite right to hedge that “[w]e may or may not find this
distinction persuasive.” But it is quite wrong to say that “the last reasoned
state court decision found it persuasive.” On the contrary, the Louisiana Court
of Appeal plainly believed that Ashe applied. 61 So. 3d at 757. It cited Ashe,
quoted the standard, and asked the right question––albeit a question it
answered unreasonably. If the state court had any doubt that Ashe applied, it
did not say so. Consequently, the majority has contrived a rationale for the
state court’s decision that is incompatible with the reasoning that the state
court actually gave.
The Supreme Court’s decisions give us no license to conduct AEDPA
review this way. Following Wilson v. Sellers, the mode of our analysis under
the “unreasonable application” prong of 28 U.S.C. § 2254(d)(1) depends on
whether the state-court decision is accompanied by any reasoning. 138 S. Ct.
at 1191–92. If no reasoning accompanies the decision, we are to “determine
what arguments or theories . . . could have supported[] the state court’s
decision.” Richter, 562 U.S. at 102. But if any reasoning does, whether from
the issuing court or a lower state court, the “federal habeas court simply

55
 Case: 16-30486 Document: 00514985887 Page: 56 Date Filed: 06/06/2019

No. 16-30486

reviews the specific reasons given by the state court and defers to those reasons
if they are reasonable.” Wilson, 138 S. Ct. at 1192 (emphasis added). 13
Wilson bears on two issues that had divided the circuits. The first issue
is the proper object of a federal habeas court’s focus when the last state court
to adjudicate the merits of a post-conviction claim did not explain its reasoning
but a lower state court did. Wilson squarely answers the question: “the federal
court should ‘look through’ the unexplained decision to the last related state-
court decision that does provide a relevant rationale.” 138 S. Ct. at 1192. The
second issue is the method of reviewing reasoned state-court decisions under
the “unreasonable application” prong of AEDPA. 14 Wilson brought clarity to
this second issue. 15 As noted, Wilson tells us that AEDPA review of reasoned
decisions is a “straightforward inquiry when the last state court to decide a
prisoner’s federal claim”––as here––“explains its decision on the merits in a
reasoned opinion.” Id. “[The] federal habeas court simply reviews the specific

13 A nuance not relevant here is the possibility that an unexplained merits decision by a
higher state court rested on reasoning different from that expressed by a lower state court.
Wilson addresses this possibility through a rebuttable-presumption framework. 138 S. Ct. at
1196–97. That nuance does not arise in this case. The Louisiana Supreme Court’s decision
was a discretionary denial of review, so the Louisiana Court of Appeal’s decision was the last
decision on the merits in the state system.
14 Compare, e.g., Dennis v. Sec., Pa. Dept. of Corr., 834 F.3d 263, 281–82 (3rd Cir. 2016)

(en banc) (“[F]ederal habeas review does not entail speculating as to what other theories could
have supported the state court ruling when reasoning has been provided, or buttressing a
state court’s scant analysis with arguments not fairly presented to it.”), with, e.g., Evans v.
Davis, 875 F.3d 210, 216 (5th Cir. 2017) (“[We consider] not only the arguments and theories
the state habeas court actually relied upon to reach its ultimate decision but also all the
arguments and theories it could have relied upon.”).
15 The Supreme Court issued Wilson in April 2018, after the panel heard oral argument

in this case but before publishing its opinion. The panel acknowledged Wilson’s likely impact
on AEDPA review but applied Richter’s “could have supported” framework in an abundance
of caution. Langley, 890 F.3d at 515 & n.15. The full court subsequently requested and
received supplemental briefing on Wilson.
56
 Case: 16-30486 Document: 00514985887 Page: 57 Date Filed: 06/06/2019

No. 16-30486

reasons given by the state court and defers to those reasons if they are
reasonable.” Id. (emphasis added). 16
That direction governs us here. The Louisiana Court of Appeal explained
its reasoning for denying relief. That reasoning unreasonably applied Ashe and
its progeny. Our analysis should then proceed to de novo review of the
petitioner’s claim. See Salts v. Epps, 676 F.3d 468, 480 (5th Cir. 2012). By
instead interposing a new rationale not given by the state court and not
compatible with the reasons it did give, the majority runs afoul of Wilson’s
direction.
B
The majority’s lengthy discussion of Schiro v. Farley, 510 U.S. 222
(1994), is likewise out of place. The Louisiana Court of Appeal never employed
any reasoning that could be said to flow from Schiro. The State did not brief
Schiro below or to the panel, and at oral argument before the panel, counsel
for the State made no use of Schiro when given the chance. 17 The majority’s

16 Another panel of this court has also recognized Wilson’s significance. See Thomas v.
Vannoy, 898 F.3d 561, 568 (5th Cir. 2018) (acknowledging that the “continued viability” of
the Fifth Circuit’s approach was “uncertain” after Wilson). See also Meders v. Warden, Ga.
Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (“What [Wilson] means is we are to
focus not merely on the bottom line ruling of the decision but on the reasons, if any, given for
it.”) (emphasis added). Commentators have recognized its significance as well. See BRIAN R.
MEANS, FEDERAL HABEAS MANUAL § 3:70 (2018) (“[T]he Supreme Court [has] apparently
settled the matter: the ‘fill the gaps’ aspect of Richter—considering grounds that could
have supported the state court’s decision—does not extend beyond unexplained rulings to
reasoned state court decisions.”); Leading Case, Antiterrorism and Effective Death Penalty
Act—Habeas Corpus—Scope of Review of State Proceedings—Wilson v. Sellers, 132 HARV. L.
REV. 407, 412–13 (2018) (“[T]he Wilson Court limited one of the harshest pieces of Richter’s
legacy––the practice of courts imagining all possible bases for denying relief––to Richter’s
specific procedural posture, thus sparing habeas petitioners from a burden that AEDPA need
never have imposed on them.”).
17 See Oral Argument at 30:54, Langley v. Prince, 890 F.3d 504 (5th Cir. 2018) (No. 16-

30486), http://www.ca5.uscourts.gov/OralArgRecordings/16/16-30486_10-4-2017.mp3.
57
 Case: 16-30486 Document: 00514985887 Page: 58 Date Filed: 06/06/2019

No. 16-30486

discussion is thus another effort to supply novel reasoning, contra Wilson, in
support of the state court’s decision. 18
Under de novo review of Langley’s claim, the majority’s reliance on
Schiro also fails to provide meaningful support to the state court’s decision. In
part, this is because Schiro’s facts simply differ in determinative ways. For one,
this case concerns issue preclusion between successive trials; Schiro concerned
issue preclusion between the guilt and sentencing phases of a single trial. 510
U.S. at 225–26. For another, the jury instructions in this case directed jurors
to begin with the single charge of first degree murder and, as described above,
work their way down through the list of responsive verdicts. In Schiro, three
counts of murder were charged, and the instructions did not clearly direct
jurors to proceed from greater to lesser offenses as the instructions did here.
Id. at 233–34. Finally, the jury instructions in this case were clear that the
jury could convict Langley for second degree murder without finding specific
intent, via the felony murder option. The jury instructions in Schiro were
ambiguous on that very point. Id. at 234.
Schiro also creates trouble for the majority’s other post hoc
rationalization of the state court’s decision. As noted, the majority rests its
holding on the idea, never espoused by the state court, that Ashe’s application
to implied acquittals accompanying convictions is not clearly established. But
Schiro suggests that Ashe does apply. In its discussion, the Court first cited
long-standing precedent on implied acquittals. 510 U.S. at 236 (“We have in
some circumstances considered jury silence as tantamount to an acquittal for
double jeopardy purposes.”) (citing Green, 355 U.S. at 190–91; Price v. Georgia,
398 U.S. 323, 329 (1970)). It then added that “[t]he failure to return a verdict

18 The majority says its use of Schiro to uphold the state court’s decision does not
contravene Wilson because state courts are not required to cite the correct case names. That
is hardly the issue here.
58
 Case: 16-30486 Document: 00514985887 Page: 59 Date Filed: 06/06/2019

No. 16-30486

does not have collateral estoppel effect, however, unless the record establishes
that the issue was actually and necessarily decided in the defendant’s favor.”
Id. Indeed, the Court conducted an Ashe analysis in Schiro. Id. at 234–36. It
simply ruled that Schiro had failed to carry his burden. Id. at 236.
Consequently, if Schiro adds anything here, its weight belongs on Langley’s
side of the scale.
C
Finally, there is the majority’s issue-preclusion analysis. Supra, Part
III(C). It is here that the majority’s refusal to explain the Ashe analysis
required by Supreme Court precedent is most glaring. Rather than look to
Ashe, Yeager, or other Supreme Court law, the majority instead imports the
Second Restatement of Judgments. From the Restatement, the majority
derives new “essential prerequisites” for issue preclusion to obtain, which
debut in the majority’s opinion without any adversarial treatment at any stage
in this litigation. While the Supreme Court has cited the Restatement’s issue-
preclusion principles in various contexts, it has never employed the novel
framework advanced by the majority to adjudicate an Ashe claim. 19 The
majority’s misbegotten doctrinal innovation cloaks the majority’s departure
from governing law, disrupts settled double jeopardy doctrine, and is likely to
confuse the state and federal judges of this circuit as they adjudicate Ashe
claims in the future.

19 To justify its creation of a novel Restatement-based framework, the majority cites
Bravo-Fernandez v. United States, 137 S. Ct. 352 (2016). There, the Restatement appeared
in the Court’s discussion of general principles, but the Court concluded Ashe did not apply,
so there was no Ashe claim to adjudicate. Id. at 357–58, 362–33. The majority also cites Bobby
v. Bies, 556 U.S. 825 (2009). That case concerned the effect of a change in the law on a single,
concluded proceeding; double jeopardy protection did not arise. Id. The majority is blurring
the distinction between Supreme Court decisions about whether Ashe should apply in a given
situation and its decisions actually adjudicating an Ashe claim. The majority uses the former
decisions to obscure what the latter decisions require us to do in this case.
59
 Case: 16-30486 Document: 00514985887 Page: 60 Date Filed: 06/06/2019

No. 16-30486

To start, the majority misstates the fundamental question as being what
the jury “actually determined,” citing the Restatement, rather than as what it
“necessarily decided.” See Yeager, 557 U.S. at 119–20. This difference is subtle
but significant, because the latter formulation trains the reviewing court’s
attention on a rational jury adhering to its instructions, and not on speculation
about “what transpired in the jury room.” Id. at 122. The majority makes the
very error condemned by the Supreme Court in Yeager when it speculates that
Langley’s jury chose second degree murder because it heard defense counsel’s
plea for mercy and because it wanted to avoid a capital punishment hearing.
Similarly, choosing novel Restatement-based standards permits the
majority to deploy a misrepresentation of Louisiana responsive verdict law
without acknowledging the Supreme Court precedent that would rule it out.
The majority describes the specific-intent second degree murder instruction as
a “concededly valid option.” Indeed, like many states, 20 Louisiana recognizes
“that a defendant, when charged with a crime for which the Legislature has
provided a responsive verdict, has the statutory right to have the jury
characterize his conduct as the lesser crime.” State v. Porter, 639 So. 2d 1137,
1140 (La. 1994). Louisiana treats “the jury’s prerogative to return a responsive
verdict similar to the jury’s power of nullification,” available to the jury “even
though the evidence clearly and overwhelmingly supported a conviction of the
charged offense.” Id. 21
But the existence of responsive verdicts does not affect the Ashe analysis,
which assumes a rational jury that follows its instructions. Given the secrecy
of the jury room, the possibility of a nullification verdict is ever-present.

20 See, e.g., Tex. Code Crim. Proc. § 37.09 (lesser included offenses); Wortham v. State, 412
S.W.3d 552, 557–58 (Tex. Crim. App. 2013) (holding that “[a]nything more than a scintilla of
[relevant] evidence entitles the defendant to [a jury instruction on] the lesser charge”).
21 This equivalence drawn by Porter between a jury’s choice of a responsive verdict and

jury nullification rebuts the concurring opinion’s attempt to distinguish the two.
60
 Case: 16-30486 Document: 00514985887 Page: 61 Date Filed: 06/06/2019

No. 16-30486

Accounting for it in the Ashe analysis would make it impossible to say what a
jury “necessarily determined,” and so would effectively eliminate Ashe, as our
court has long recognized. See United States v. Tran, 433 F. App’x 227, 231 (5th
Cir. 2011) (“[I]f we consider jury nullification as a basis on which the jury might
have acquitted . . . we would in effect be eliminating the entire doctrine of
collateral estoppel and greatly weakening the protection against double
jeopardy.”) (quoting United States v. Leach, 632 F.2d 1337, 1341 n.12 (5th Cir.
1980)). The majority’s indulgence of that possibility runs counter to Ashe’s
rational-jury assumption, Turner’s assumption that juries adhere to
instructions, and Yeager’s direction to avoid speculation about what transpired
in the jury room.
The majority’s use of the Restatement causes still more mischief.
Avoiding Langley’s argument that his first degree murder acquittal is the
source of his relief under Ashe, the majority suggests that the reversal of
Langley’s 2003 second degree murder conviction, due to trial judge misconduct,
rendered the result of the 2003 trial not a “valid and final” judgment. It is of
course true that a conviction vacated due to trial error does not preclude retrial
on the same offense. But the majority dangerously disregards Supreme Court
precedent, old and new, by suggesting that the 2003 verdict could have no
preclusive effect on the 2009 trial. It is a pillar of double jeopardy doctrine that
the finality of an acquittal is “unassailable” even if it is “based upon an
egregiously erroneous foundation.” Yeager, 557 U.S. at 122–23 (quoting Fong
Foo, 369 U.S. at 143). The Court’s recent decision in Bravo-Fernandez drives
the point home. 137 S. Ct. 352 (2016). Defendants Bravo and Martinez were
convicted of a bribery offense but acquitted of conspiring to commit and
traveling to commit that bribery, a classic “irreconcilably inconsistent” verdict.
Id. at 362–64. Instructional error infected the conviction, so it was reversed.

61
 Case: 16-30486 Document: 00514985887 Page: 62 Date Filed: 06/06/2019

No. 16-30486

Due to the inconsistency in the verdict, the Court rejected Bravo and
Martinez’s argument that their conspiracy and travel acquittals should
preclude retrial for bribery. But the Court was clear that the Double Jeopardy
Clause “forever bars” retrial on the acquitted charges, no matter the trial error.
Id. at 365–66. The majority’s doubts about the finality of the 2003 verdict
cannot be reconciled with Bravo-Fernandez and the well-established law to
which it adhered.
The majority does acknowledge what it cannot avoid: the Louisiana
Supreme Court’s ruling that the 2003 verdict impliedly acquitted Langley of
first degree murder, barring retrial on that charge. But the majority is unable
to explain why the implied acquittal can bar retrial on that charge but not the
charge’s elements. Langley’s specific intent was the “single rationally
conceivable issue in dispute before the jury,” Ashe, 397 U.S. at 444, and so the
jury’s acquittal of first degree murder barred retrial on that element of the
charge, just as it barred retrial on the charge itself. The majority cannot or will
not say this, and the price of the majority’s avoidance is a blow dealt to the
edifice of Supreme Court law.
***
Under the Double Jeopardy Clause, the verdict rendered by the jury in
2003 prohibited the State of Louisiana retrying the issue of Langley’s specific
intent to kill or inflict great bodily harm. Langley’s 2009 conviction for specific-
intent second degree murder therefore should not stand. Accordingly, I would
reverse the district court’s judgment and remand this case with instructions to
grant Langley’s petition for a writ of habeas corpus, leaving the State free to
retry Langley on charges that do not require proof of his specific intent.
Because the majority sidesteps numerous Supreme Court precedents and
clashes with others in order to avoid that result, I dissent.

62
 Case: 16-30486 Document: 00514985887 Page: 63 Date Filed: 06/06/2019

No. 16-30486

GREGG COSTA, Circuit Judge, joined by WIENER and HIGGINSON,
Circuit Judges, dissenting:

I had thought the Anti-Federalists lost. But see Maj. Op. at 37. What is
more, it is ironic to invoke their rejected constitutional vision in defense of a
decision that undermines one of the Anti-Federalists’ most fervent beliefs: the
fundamental role of juries. MICHAEL J. KLARMAN, THE FRAMERS’ COUP 350
(2016); HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 18–19
(1981). As a leading Anti-Federalist inveighed, “jury trials, which have so long
been considered the surest barrier against arbitrary power, and the palladium
of liberty, with the loss of which the loss of our freedom may be dated, are taken
away by the proposed form of government.” The Antifederalist No. 83 (Luther
Martin), in THE ANTIFEDERALIST PAPERS 241, 241 (Morton Borden ed., 1965 ).
One took it even further: “O! my fellow citizens, think of this while it is yet
time, and never consent to part with the glorious privilege of trial by jury, but
with your lives.” Essay of A Democratic Federalist (Oct. 17, 1787), in 5 THE
FOUNDERS’ CONSTITUTION 354, 355 (Philip B. Kurland & Ralph Lerner eds.,
1987). And in contrast to the Anti-Federalists’ unsuccessful criticisms of the
independence of federal judges and their power to review state court rulings,
see Maj. Op. at 37 (citing Brutus Essay I), the Anti-Federalists’ campaign for
jury rights was a success: not in defeating the Constitution, but in amending
it. See U.S. CONST. amends. VI, VII.
So important was the jury right the Anti-Federalists fought for that,
until the early twentieth century, a defendant charged with serious crimes
could not be “tried in any other manner than by a jury of twelve men.” Home
Ins. Co. of New York v. Morse, 87 U.S. 445, 451 (1874) (citing Cancemi v. People,
18 N.Y. 128 (1858)); see also Patton v. United States, 281 U.S. 276, 298 (1930)
(reversing course and allowing a defendant to waive the jury). As the first
Justice Harlan explained in rejecting the view that a defendant could agree to

63
 Case: 16-30486 Document: 00514985887 Page: 64 Date Filed: 06/06/2019

No. 16-30486

waive the requirement of a full jury, “the wise men who framed the constitution
of the United States and the people who approved it were of the opinion that
life and liberty, when involved in criminal prosecutions, would not be
adequately secured except through the unanimous verdict of twelve jurors.”
Thompson v. Utah, 170 U.S. 343, 353 (1898). A leading modern scholar reaches
the same conclusion about the original understanding: A jury had to decide
felony trials; bench trials were not allowed. See AKHIL AMAR, THE BILL OF
RIGHTS 104–08 & nn. 97, 102 (1998) (emphasizing the mandatory Article III
language that “trial of all crimes . . . shall be by jury” as well as the writings of
both Federalist and Anti-Federalists who viewed the jury guarantee as a
structural provision and not just an individual right); see also Cancemi, 18 N.Y.
at 138 (rejecting defendant’s ability to waive 12-member jury because that
would also allow a defendant to agree to “trial committed to the court alone,”
which the common law did not permit); Recent Development, Accused in
Multiple Prosecution Held to Have Absolute Right to Waive Jury Trial, 59
COLUM. L. REV. 813, 814 (1959) (“Until shortly after the turn of the century,
federal courts and most state courts applied the common law rule that a jury
trial can not be waived in a felony case in which the defendant enters a plea of
not guilty.”); Note, Waiver of Constitutional Right to Twelve Jurors, 9 HARV. L.
REV. 353 (1895) (similar).
Yet the majority opinion lets a judge’s finding of specific intent override
a jury’s earlier determination that this required mens rea was not proven.
That undermines both the right to a jury and the protection against double
jeopardy. As the Anti-Federalists recognized, the latter is essential to the
former. See Brutus Essay XIV (Feb. 28, 1788), in THE ANTIFEDERALIST
PAPERS, supra, at 234, 235 (lamenting the possibility of “a second hearing” on
appeal after acquittal by a jury); see also AMAR, supra, at 96 (explaining that

64
 Case: 16-30486 Document: 00514985887 Page: 65 Date Filed: 06/06/2019

No. 16-30486

the Double Jeopardy Clause “dovetails with the Sixth Amendment jury right”
because it protects “the integrity of the initial petit jury’s judgment”). If the
state can keep retrying someone until it achieves its desired result, then the
jury right that both the Federalists and Anti-Federalists cherished, see U.S.
CONST. art. III (guaranteeing jury in criminal cases); Federalist No. 83, at 467
(Alexander Hamilton) (Clinton Rossiter ed., 1999) (“The friends and
adversaries of the plan of the convention, if they agree in nothing else, concur
at least in the value they set upon trial by jury . . . .”), is no right at all.

65