Joseph Anderson v. Dwight Neven

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSEPH D. ANDERSON, No. 18-16502
Petitioner-Appellee,
D.C. No.
v. 2:14 cv-2015
JAD
DWIGHT NEVEN, Warden;
ATTORNEY GENERAL FOR THE STATE
OF NEVADA, ORDER
Respondents-Appellants.

Filed September 11, 2020

Before: Sydney R. Thomas, Chief Judge, and A. Wallace
Tashima, and Kim McLane Wardlaw, Circuit Judges.

Order;
Statement by Judge Tashima;
Concurrence by Judge Wardlaw;
Dissent by Judge VanDyke
2 ANDERSON V. NEVEN

SUMMARY *

Habeas Corpus

The panel denied a petition for panel rehearing and
denied on behalf of the court a petition for rehearing en banc.

In a statement respecting the denial of rehearing en banc,
Judge Tashima wrote that he agrees wholeheartedly with
Judge Wardlaw’s opinion concurring in the denial of
rehearing en banc.

Judge Wardlaw, joined by Chief Judge Thomas,
concurred in the denial of rehearing en banc in this case in
which the panel, in a memorandum disposition, affirmed the
district court’s grant of habeas relief because, as the district
court observed, no reasonable attorney would have advised
his client to plead guilty and ignore the state court’s clear
instructions for getting the charge dismissed. Judge
Wardlaw wrote that the panel’s unpublished decision, which
had no precedential value, could not disturb the “uniformity
of [our] court’s decisions” and did not present a “question of
exceptional purpose.” She added a few words in response to
the dissent’s more egregious mischaracterizations of what
transpired in this case.

Dissenting from the denial of rehearing en banc Judge
VanDyke, joined by Judge Bumatay, wrote that the panel’s
decision goes far beyond Congress’s and the Supreme
Court’s limits on federal habeas review of state court

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 ANDERSON V. NEVEN 3

criminal convictions, is deeply disrespectful to our state
court brethren, usurping their authority and improperly
criticizing their rationale, all mixed with this court’s own
legal errors of both federal and state law that can only add
insult to injury.

COUNSEL

Charles L. Finlayson (argued), Deputy Attorney General;
Heather D. Procter, Chief Deputy Attorney General; Aaron
D. Ford, Attorney General; Office of the Attorney General,
Carson City, Nevada; for Respondents-Appellants.

C.B. Kirschner (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada; for Petitioner-
Appellee.

ORDER

The panel has voted to deny Respondents-Appellants’
petition for panel rehearing. Chief Judge Thomas and Judge
Wardlaw have voted to deny the petition for rehearing en
banc, and Judge Tashima has so recommended.

The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc, and the matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. See Fed. R. App. P. 35(a).
4 ANDERSON V. NEVEN

Respondents-Appellants’ petition for panel rehearing
and rehearing en banc is DENIED.

TASHIMA, Circuit Judge, statement respecting the denial of
rehearing en banc:

Because, as a senior judge, I am prohibited from voting
on whether to hear or rehear a case en banc, I file this
separate statement. For the reasons briefly and succinctly
stated therein, I agree wholeheartedly with Judge Wardlaw’s
opinion concurring in the denial of rehearing en banc.

WARDLAW, Circuit Judge, joined by THOMAS, Chief
Judge, concurring in the denial of rehearing en banc:

This was a straightforward case. Joseph Anderson failed
to yield at an intersection, resulting in a fatal automobile
accident. He was charged in Nevada state court with, and
convicted of, misdemeanor failure to yield. See Nev. Rev.
Stat. § 484B.257. He was also separately charged with
driving under the influence (DUI) causing death, an offense
which requires the State to prove, as an element, that the
defendant “does any act or neglects any duty imposed by
law.” Id. § 484C.430(1). The charging document
specifically relied on Anderson’s failure-to-yield offense to
establish this element.

The obvious motion to dismiss on double jeopardy
grounds was filed, which the Nevada state trial court denied
as premature. However, the court made clear, in ALL-
CAPS, that the criminal charge against Anderson for DUI
causing death would be dismissed at trial on double jeopardy
 ANDERSON V. NEVEN 5

grounds if the State did not come up with a predicate offense
different than the failure to yield conviction. The State failed
to do so, and nothing in the record suggests that the
prosecution could have charged or proved an alternative
theory. Indeed, even before our court, the State offered
nothing more than vague speculation to explain how it could
have charged the case differently. But rather than
proceeding to trial, where the charge was all-but-guaranteed
to be dismissed, Anderson’s attorney advised him to plead
guilty on the incorrect assumption that doing so would better
position him to raise a double jeopardy argument on appeal.
Anderson accepted his attorney’s guidance. And after
pleading guilty to a charge that was primed for dismissal, he
was sentenced to up to twenty years in prison. Anderson’s
trial counsel later wrote to him, admitting that his advice was
incorrect and that he should have recommended taking the
case to trial.

The only claim presented by Anderson’s habeas petition,
and consequently, the only claim before our panel, was
whether the attorney’s advice constituted ineffective
assistance of counsel. The answer is obvious: Yes. As the
district court correctly observed in granting the habeas
petition, no reasonable attorney would have advised his
client to ignore the state court’s clear instructions for getting
the charge dismissed. We therefore affirmed the district
court’s grant of habeas relief.

Our panel’s unpublished memorandum disposition had
no precedential effect. It therefore could not disturb the
“uniformity of [our] court’s decisions.” Fed. R. App. P.
35(a) (criteria for en banc rehearing). Nor did this appeal
present a “question of exceptional importance.” Id. While
undoubtedly important to the parties, there was nothing to
distinguish this case from the hundreds of habeas petitions
6 ANDERSON V. NEVEN

our court adjudicates every year. Thus, it is little surprise
that a majority of active judges concluded this was not the
rare case worthy of en banc review.

Yet to read the dissent from denial of rehearing en banc,
one would think that we mounted a full-on federal takeover
of the Nevada state courts. In the dissent’s eyes, our “results-
driven” decision, through its “layers of irony,” “menaces
federalism” and was “deeply disrespectful” to our colleagues
on the state bench. Dissent at 12, 28, 39, 40. Indeed, the
dissent claims that the reasoning behind our unpublished 10-
paragraph disposition leaves readers lucky to escape
“disaster” or even death by “dysentery.” Dissent at 13.

I will not attempt to refute these histrionics point by
point. Instead, for the benefit of those who have managed to
survive their exposure to the panel disposition, I add only a
few words in response to the dissent’s more egregious
mischaracterizations of what transpired in this case.

I.

First, the dissent accuses the panel of reaching out to
decide a double jeopardy claim that Anderson never raised.
Dissent at 22–26. Not so. It was the State that injected
double jeopardy into this ineffective assistance of counsel
case through its argument that Anderson could not show
prejudice from his attorney’s bad advice because it would
have been error for the trial court to dismiss the DUI charge
on double jeopardy grounds. Indeed, the State devoted
14 pages of its 33-page opening brief to the subject. To
address this argument, our panel had to determine whether
the State was correct that the Double Jeopardy Clause did
not apply on the facts presented. And because the Nevada
Supreme Court held on direct appeal that Anderson had no
 ANDERSON V. NEVEN 7

viable double jeopardy claim, we necessarily had to
determine whether that conclusion was proper.

In the panel disposition, we explained that the Nevada
Supreme Court incorrectly decided a federal constitutional
question: whether it would violate the Fifth Amendment’s
Double Jeopardy Clause to try Anderson on the charge of
DUI causing death after he had already been convicted of
failure to yield. Our conclusion was a function of the unique
nature of the offense with which Anderson was charged.
Under Nevada law, the crime of DUI causing death has as
an element that the defendant “d[id] any act or neglect[ed]
any duty imposed by law.” Nev. Rev. Stat. § 484C.430(1).
To satisfy that element in this case, the criminal information
alleged that Anderson “did neglect his duty imposed by law
to yield from a stop sign to oncoming traffic.” In other
words, to establish a necessary element of the crime, the
prosecution intended to prove that Anderson had committed
the Nevada offense of failure to yield—the very same
offense for which Anderson had already been prosecuted and
convicted.

By requiring the commission of a predicate offense as an
element of the crime, the Nevada offense of DUI causing
death operated in the same manner as a charge of felony
murder. Under the Double Jeopardy Clause, a defendant
who has been convicted of, for example, felony murder
based on robbery cannot be separately charged with the same
underlying robbery, and vice versa. Harris v. Oklahoma,
433 U.S. 682, 682 (1977) (per curiam) (“When, as here,
conviction of a greater crime, murder, cannot be had without
conviction of the lesser crime, robbery with firearms, the
Double Jeopardy Clause bars prosecution for the lesser
crime, after conviction of the greater one.”). So too here.
Having convicted Anderson of failure to yield, the Double
8 ANDERSON V. NEVEN

Jeopardy Clause barred the State from turning around and
trying him on a charge of DUI causing death that relied on
that same failure-to-yield offense to satisfy a necessary
element of the crime.

Anderson therefore had a viable double jeopardy claim,
and the state court would have been correct to dismiss the
charge. Yet by heeding his attorney’s erroneous advice and
pleading guilty, Anderson was instead sentenced to up to
twenty years in prison. This was textbook ineffective
assistance of counsel. 1

II.

Next, the dissent asserts that the panel failed to defer to
the Nevada Supreme Court on a question of state law.
Dissent at 26–28. This is not true for the simple reason that
the Nevada Supreme Court never decided a state law
question. The Nevada Supreme Court’s brief double
jeopardy discussion, which relied primarily on United States
Supreme Court cases, did not adjudicate any questions of
state law but instead (mis)applied federal double jeopardy
doctrine. One need only read the relevant passage to see if,
as the dissent posits, Dissent at 28, the Nevada Supreme
Court was “interpret[ing] . . . the elements of Nevada
criminal law”:

A claim that a conviction violates the Double
Jeopardy Clause generally is subject to de

1
Again, I emphasize that the panel analyzed the double jeopardy
issue only to respond to the State’s argument that Anderson suffered no
prejudice from his attorney’s bad advice. It is not clear how the dissent
thinks the panel could have addressed this argument—to which the State
devoted almost half of its opening brief—without determining how the
Double Jeopardy Clause applied in the context of this case.
 ANDERSON V. NEVEN 9

novo review on appeal.” Davidson v. State,
124 Nev. 892, 896, 192 P.3d 1185, 1189
(2008). Failure to yield is not a lesser-
included offense of DUI causing death
because each requires proof of an element the
other does not “notwithstanding a substantial
overlap in the proof offered to establish the
crimes.” Brown v. Ohio, 432 U.S. 161, 166
(1977) (internal quotation omitted).
Therefore, convictions for both do not violate
the proscriptions against double jeopardy.
See Blockburger v. United States, 284 U.S.
299, 304 (1932) (establishing an elements
test for double jeopardy purposes); Jackson
v. State, 128 Nev. —, —, 291 P.3d 1274,
1278 (2012), petition for cert. filed,
81 U.S.L.W. (U.S. Mar. 5, 2013) (No. 12-
9118); see also State of Nevada v. Eighth
Judicial Dist. Court, 116 Nev. 127, 135 &
136 n. 7, 994 P.2d 692, 697 & n. 7 (2000)
(DUI and “traffic code infractions occurring
during the same driving episode” each
require proof of an element the other does not
and are not the same offenses under
Blockburger). We conclude that the district
court did not err by rejecting Anderson’s
claim or abuse its discretion by denying his
motion to dismiss. See Hill v. State, 124 Nev.
546, 550, 188 P.3d 51, 54 (2008) (we review
a district court’s denial of a motion to dismiss
for an abuse of discretion).

Anderson v. State, 129 Nev. 1095, 2013 WL 5338521, at *1
(2013) (table).
10 ANDERSON V. NEVEN

It is plain from this short paragraph that the Nevada
Supreme Court was not holding forth on the elements of the
state failure-to-yield and DUI-causing-death offenses.
Instead, it opined that the fact that each offense “require[d]
proof of an element the other does not,” was enough, on its
own, to establish that there was no double jeopardy
violation. Id. As the Supreme Court’s decision in Harris
illustrates, however, it was this analysis of federal law that
was incorrect. The felony murder and robbery with firearms
charges in Harris also each required proof of an element the
other does not; felony murder does not require a showing
that the defendant committed robbery—it can be predicated
on any number of felonies—and robbery does not require a
killing. See Harris, 433 U.S. at 682. But the Court
nevertheless concluded that because, in that case, the
defendant had been convicted of felony murder predicated
on robbery with firearms, the Double Jeopardy Clause
barred a successive prosecution for the same robbery with
firearms offense. Id.

The Nevada Supreme Court failed to appreciate that the
same principle applied in this case, because, as charged here,
the DUI causing death charge had, as an element, that
Anderson committed the offense of failure to yield (for
which he had already been separately convicted). This was
an error of federal law, not state law, and thus the panel
disposition correctly concluded that our court was not
required to defer to the state court’s decision.

III.

Finally, the dissent argues that the DUI causing death
charge did not actually require proof of a predicate criminal
offense, and that the neglect of legal duty element could—at
least “possibly”—be satisfied by a showing of simple
negligence. Dissent at 30. And it advances its own novel
 ANDERSON V. NEVEN 11

theory that because the failure-to-yield offense “imposes two
separate duties on drivers,” whereas DUI causing death only
requires the neglect of one duty for its predicate, the two
crimes cannot overlap to violate the Double Jeopardy
Clause.

It is enough to say that all of this would be news to the
State, which has never advanced any such arguments—not
in the district court, not in its merits briefs on appeal, and not
in its petition for rehearing en banc. It is quite remarkable
that at the same time our dissenting colleague accuses the
panel of showing a lack of respect for state courts, he appears
to himself assume that Nevada’s own attorneys do not
understand the meaning of the state’s criminal statutes. In
any event, we are limited to the arguments raised by the
parties, and thus the dissent’s sua sponte adventure through
Nevada law is not before us. United States v. Sineneng-
Smith, 140 S. Ct. 1575, 1579 (2020).

* * *

The panel decision was entirely correct. And a majority
of active judges decided that our unpublished, non-
precedential disposition was not worthy of en banc review.
I concur in that decision.

VANDYKE, Circuit Judge, joined by BUMATAY, Circuit
Judge, dissenting from denial of rehearing en banc:

Federal habeas review of state court criminal convictions
implicates well-known federalism and comity concerns,
which is why both Congress and the United States Supreme
Court have repeatedly stressed the carefully delimited and
extraordinarily deferential nature of such review. Our
12 ANDERSON V. NEVEN

court’s decision in Anderson v. Neven, 797 F. App’x 293
(9th Cir. 2019) goes far beyond those clear limits—in
multiple ways. The decision is deeply disrespectful to our
state court brethren, usurping their authority and improperly
criticizing their rationale, all mixed with our court’s own
legal errors of both federal and state law that can only add
insult to injury. Federal habeas relief from state criminal
convictions exists to remedy only the most “extreme
malfunctions in the state criminal justice systems.”
Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation
omitted). There were no “extreme malfunctions” in
Anderson’s state court proceedings. But this court’s
decision multiplies them.

First, and perhaps most troubling, the panel tutored the
Nevada Supreme Court on the elements of Nevada state
criminal offenses. Yet as the United States Supreme Court
has said again and again, not even it may second-guess state
courts on the elements of state criminal law. And here, the
Nevada Supreme Court’s broad statement that, in Nevada,
“[f]ailure to yield is not a lesser-included offense of DUI
causing death because each requires proof of an element the
other does not,” Anderson v. State, 129 Nev. 1095, 1095
(2013), is not only unmistakably clear; it is quite defensible,
as explained below.

Second, the panel’s conclusion that the Nevada Supreme
Court erroneously explicated Nevada’s criminal law and, by
extension, its double jeopardy analysis, completely
undercuts the panel’s conclusion on the only claim actually
raised in Anderson’s federal habeas petition: that his trial
counsel was ineffective because he advised Anderson to
plead guilty and then raise his double jeopardy claim on
appeal. If the panel was right that the Nevada Supreme
Court got the double jeopardy question wrong, then
 ANDERSON V. NEVEN 13

Anderson was prejudiced—not, of course, by his trial
counsel advising him to present that claim to the Nevada
Supreme Court—but rather by the Nevada Supreme Court
getting it wrong. But as Anderson has acknowledged again
and again, he does not challenge the Nevada Supreme
Court’s decision in his federal habeas petition. The panel’s
inappropriate criticism of the Nevada Supreme Court’s
double jeopardy analysis eviscerates Anderson’s ineffective
assistance of counsel claim—the only claim properly before
this court.

These are serious errors, and they are fatal to the panel’s
conclusion. But the circular inconsistency at the heart of the
panel’s decision is just the beginning. The panel’s decision,
short as it is, is predicated on nested, inescapable errors, each
of which is independently fatal to its conclusion. The
decision is indefensible and, as described below and
confirmed by the panel’s concurrence in denial of rehearing
en banc, trying to justify it is like reading a choose-your-
own-adventure novel based on The Oregon Trail where,
regardless of which path you choose, the story always ends
in disaster and everyone perishes from dysentery.

Background

1. Facts

High on marijuana, Joseph Anderson ran a stop sign
causing a collision that killed another driver. On January 19,
2012, the State charged Anderson with Driving Under the
Influence of a Controlled Substance thereby Causing Death
to Another, a felony. The complaint stated that Anderson
“while under the influence of . . . Marijuana . . . did willfully
and unlawfully drive . . . neglect[ing] his duty imposed by
law to yield from a stop sign[,] . . . proximately caus[ing] []
Death to another.” The next day, the State charged Anderson
14 ANDERSON V. NEVEN

in a subsequent complaint with three misdemeanors: Count
I: Vehicle Entering Intersection Marked “Stop” or “Yield”;
Count II: Driving without a Valid License; and Count III:
Security for Payment of Tort Liabilities Required. The State
filed both complaints in the Pahrump Justice Court on the
same day, January 23, 2012. 1

2. Procedural History

A. Pahrump Justice Court & Nevada District Court

On May 9, 2012, at a pre-trial hearing in justice court for
both complaints, upon trial counsel’s advice Anderson pled
no-contest or guilty to all of the misdemeanor charges,
including the failure-to-yield charge. On June 8, 2012, the
justice court transferred the remaining felony case to the
Nevada district court. Pursuant to his plan, counsel then
filed a motion to dismiss the felony complaint on double
jeopardy grounds, reasoning that Anderson’s guilty plea to
the failure-to-yield misdemeanor barred his prosecution for
the felony DUI charge. The Nevada district court denied the
motion to dismiss, explaining that “it is possible for a
defendant to meet the legal duty element of the statute [DUI
causing death] by violating any number of rules of the road.”
But the court emphasized (literally) that “IF THE STATE IS
UNABLE TO PROVE ANY VIOLATION OF LEGAL
DUTY AT TRIAL OTHER THAN THE FAILURE TO
STOP, THEN THIS CASE WILL BE DISMISSED.”

1
The misdemeanor and felony charges could not be tried together
under Nevada law. Nev. Rev. Stat. Ann. § 4.370(3) (“Justice courts have
jurisdiction of all misdemeanors and no other criminal offenses except
as otherwise provided by specific statute.”). But felonies may begin
adjudication in a justice court as “justice courts have jurisdiction to
conduct preliminary examinations in felony complaints.” Koller v. State,
130 P.3d 653, 656 (Nev. 2006).
 ANDERSON V. NEVEN 15

Taking the hint, trial counsel entered a conditional guilty
plea agreement with the State on the felony DUI charge that
preserved “the right to appeal this Court’s ruling on the
jeopardy issue” and dismissed two other charges—a felony
and a misdemeanor—“as a consequence of [the]
negotiation.” The Nevada district court then entered
judgment convicting Anderson of the felony DUI charge,
and sentenced Anderson to a maximum term of 240 months.
Trial counsel appealed the conviction on double jeopardy
grounds to the Nevada Supreme Court.

B. Nevada Supreme Court Decision on the Merits

On appeal, the Nevada Supreme Court examined
whether the misdemeanor and felony statutes contained the
same elements and whether the Nevada Legislature intended
to prohibit concurrent convictions of both statutes.
Anderson, 129 Nev. at 1095. The Nevada Supreme Court
concluded, consistent with precedent, that the Legislature
intended that “convictions for each of the [“rules of the road”
and “driving while intoxicated”] offenses [were] not []
impermissibly redundant.” Nevada v. Eighth Jud. Dist. Ct.,
994 P.2d 692, 699 (Nev. 2000)), see Anderson, 129 Nev.
at 1095. Then applying the elements test from Blockburger
v. United States, 284 U.S. 299, 304 (1932) to the specifics of
the Nevada laws before it, the Nevada Supreme Court held
“[f]ailure to yield is not a lesser-included offense of DUI
causing death because each requires proof of an element the
other does not . . . .” Anderson, 129 Nev. at 1095.

Anderson’s trial counsel filed a petition for rehearing,
which the Nevada Supreme Court denied.
16 ANDERSON V. NEVEN

C. Anderson’s State Habeas Petition

Anderson then filed a petition for Writ of Habeas Corpus
in the Nevada district court alleging ineffective assistance of
counsel. Anderson alleged he did not receive effective
assistance during the plea process because his trial counsel
recommended a guilty plea rather than going to trial,
rendering Anderson’s double jeopardy claim premature. 2
Anderson also alleged that trial counsel was ineffective
because he did not familiarize himself with relevant law
when counsel recommended Anderson pursue a double
jeopardy strategy. Anderson reasoned that because the
Nevada Supreme Court ultimately held that the failure-to-
yield misdemeanor was not a lesser-included offense of the
felony DUI, “NO Double Jeopardy claim was available”
from the outset. Notably, Anderson did not challenge the
Nevada Supreme Court’s merits ruling. The Nevada district
court denied Anderson’s petition.

i. Nevada Supreme Court Adjudication

Anderson appealed the denial of his habeas petition to
the Nevada Supreme Court. That court evaluated the
petition under Strickland v. Washington, which required
Anderson to demonstrate that his trial counsel’s performance
was unreasonably deficient resulting in prejudice such that,
but for counsel’s errors, the result for Anderson would have
been different. 466 U.S. 668, 697 (1984). The Nevada
Supreme Court determined Anderson did not allege either
that he rejected a more favorable plea offer or that he would
2
This argument was factually inconsistent with that actually
happened in Anderson’s case. The Nevada Supreme Court did not hold
that Anderson’s claim was premature; quite the opposite, it treated
Anderson’s double jeopardy claim as ripe and addressed it on the merits.
See Anderson, 129 Nev. at 1095.
 ANDERSON V. NEVEN 17

have insisted on going to trial were it not for his trial
counsel’s advice. The court further noted that Anderson
received as a benefit of his guilty plea the dismissal of two
other cases distinct from the failure-to-yield misdemeanor
complaint and DUI causing death felony complaint. The
Nevada Supreme Court declined to find Anderson’s trial
counsel ineffective and affirmed the lower court’s denial of
his petition.

D. Federal District Court Habeas Petition

Anderson then filed a federal habeas petition again
alleging ineffective assistance of counsel on the same
grounds as his failed state habeas petition. This time,
however, Anderson added that he would have insisted on a
trial—and not entered a plea deal—if he had known the
double jeopardy defense was unavailable. He still did not
challenge the Nevada Supreme Court’s decision to reject his
double jeopardy defense.

The federal district court noted that to succeed, Anderson
must prove that the Nevada Supreme Court’s denial of his
state habeas petition was objectively unreasonable and
clearly erroneous. The district court also acknowledged that
the Nevada Supreme Court used the correct Strickland
standard in evaluating the petition.

In analyzing Anderson’s claim, the district court
considered it significant that, after the Nevada Supreme
Court rejected Anderson’s double jeopardy appeal, his trial
counsel wrote Anderson “admitting that he gave poor advice
and that he regretted it.” Opining that that “going to trial was
clearly the more advantageous choice,” the district court
explained that Anderson “was woefully let down when his
conviction was affirmed because—not surprisingly—
jeopardy had not yet attached.”
18 ANDERSON V. NEVEN

The district court summarily rejected that Anderson
received any real benefit from the State’s dismissal of the
two charges, as Anderson likely would have been “grant[ed]
probation” for one, while the other simply “was a
misdemeanor.” The district court ultimately concluded that
the Nevada Supreme Court’s review of Anderson’s state
habeas petition had “failed to consider the likelihood of
success that Anderson would have had at trial on his double-
jeopardy defense,” (emphasis added), and granted habeas
relief on Anderson’s ineffective assistance claim.

i. Second Federal District Court Order

The State asked the district court to reconsider its order,
explaining that, contrary to the basis for the court’s grant of
habeas relief, the Nevada Supreme Court actually had
addressed Anderson’s double jeopardy claim on the merits,
and rejected it. This did not sway the district court, but the
court did attempt to shore up its factually flawed basis for
habeas relief in an order denying reconsideration.

In this second order, the district court concluded that the
Nevada Supreme Court’s double jeopardy ruling applied
United States Supreme Court precedent incorrectly, but in so
arguing the district court incorrectly relied on language from
a plurality decision it referred to as “the Court in Dixon.”
The district court further acknowledged that “there is a
possibility that the State would have been able to prove a
different predicate offense [at trial] for the felony DUI
charge against Anderson,” but because “there is also [a]
probability that it would not have been able to do so[,] that
is sufficient to undermine the outcome of Anderson’s
criminal proceeding.” The court afforded no deference to
Anderson’s counsel’s weighing of these possibilities, or
Strickland’s admonition that petitioners claiming ineffective
assistance of counsel must show that the likelihood of a
 ANDERSON V. NEVEN 19

different result is “substantial.” Rather, the court concluded
that the “reasonable probability” that Anderson might have
prevailed at trial on a double jeopardy defense was enough
to establish prejudice to Anderson under Strickland. The
district court did not attempt to connect its new analysis to
the actual arguments in Anderson’s federal habeas petition,
and “decline[ed] to reconsider [its] prior ruling.”

E. Ninth Circuit Panel Memorandum Disposition

The State appealed to this court. The panel, like the
federal district court, did not address the habeas claims as
actually pled by Anderson—that jeopardy did not attach or
that trial counsel should have known the Nevada Supreme
Court would not find a double jeopardy violation. Instead,
the panel joined the district court in concluding that the
outcome on the double jeopardy claim likely would have
changed under Nevada law if Anderson had gone to trial on
the felony DUI charge. See Anderson v. Neven, 797 F.
App’x 293, 294–95 (9th Cir. 2019).

The panel explained that although “the ‘does any act or
neglects any duty imposed by law’ element of the DUI
offense” could have been established “through some
predicate other than the failure-to-yield offense . . . . the
record is devoid of any evidence regarding any other theory
upon which the State could have satisfied this element at
trial.” Id. Thus, “[t]he mere possibility that the State may
have been able to rely on an alternate predicate offense does
not negate Anderson’s showing of likely success” in his
double jeopardy defense at or after trial. Id. at 295.
Accordingly, the panel agreed with the federal district court
that “no reasonable attorney would have advised Anderson”
to plead guilty rather than go to trial because there was “a
high likelihood that he would have been able to raise the
20 ANDERSON V. NEVEN

double-jeopardy defense successfully” at trial. Id. at 294
(alteration marks omitted).

The obvious problem with the panel’s conclusion that
Anderson might have prevailed in the state trial court on his
double jeopardy claim is, “so what?” Given the Nevada
Supreme Court’s rejection of Anderson’s double jeopardy
claim on direct appeal, there is no reason to think the Nevada
Supreme Court would have reached a different conclusion if
Anderson had gone to trial, if the prosecution had not
amended the charges (a big “if,” given the trial court’s
emphatic direction to do so), and if Anderson had prevailed
in trial court. But the panel had a response: the Nevada
Supreme Court was wrong. More specifically, the Nevada
Supreme Court’s explanation about Nevada law was right
generally, but not “in Anderson’s particular case.” Id.
at 295 (emphasis in original).

What the panel never explained is why this matters for
the only claim that Anderson made in this federal habeas
action: ineffective assistance of trial counsel. The panel’s
inquiry into the merits of the Nevada Supreme Court’s
decision resulted in an irreconcilable contradiction in its
Strickland analysis: that trial counsel was ineffective
because he predicted the Nevada Supreme Court would rule
precisely the way the panel believed it should have ruled.
Under the panel’s theory of the case, what actually stymied
trial counsel’s able strategy was not any error by counsel, but
rather the Nevada Supreme Court’s misunderstanding of
how Nevada law worked “in Anderson’s particular case.”
Id. (emphasis in original). And Anderson never challenged
the Nevada Supreme Court’s decision. This inherent
contradiction is never addressed in the panel’s decision or its
concurrence in denial of rehearing en banc.
 ANDERSON V. NEVEN 21

Standard of Review

State supreme courts are the final arbiters of state law.
Principles of federalism dictate that federal courts overturn
state court convictions under AEDPA only in the limited
instances where the adjudicated outcome “resulted in a
decision that was contrary to, or involved unreasonable
application of, clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). Supreme Court precedent should not be
framed at “a high level of generality” such that “a lower
federal court could transform even the most imaginative
extension of existing case law into ‘clearly established
Federal law.’” Nevada v. Jackson, 569 U.S. 505, 512 (2013)
(citation omitted). For a State court decision to be
overturned, it must arrive at a conclusion “opposite to that
reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). Even if a
Supreme Court case addressed a similar topic or type of case,
the step of extending a rationale drawn from Supreme Court
precedent means such rationale, “by definition,” is not
clearly established law. White v. Woodall, 572 U.S. 415, 426
(2014). State courts need not cite or be aware Supreme
Court precedent to ensure deferential review. Early v.
Packer, 537 U.S. 3, 8 (2003).

When evaluating ineffective assistance claims, counsel’s
deficient performance must result in errors so far below the
objective standard of reasonableness that, but for the errors,
the outcome would have been different. Strickland, 466 U.S.
at 687; Hill v. Lockhart, 474 U.S. 52, 59 (1985). The
petitioner must prove “both deficient performance and
prejudice.” Bell v. Cone, 535 U.S. 685, 695 (2002). Given
that “[v]irtually every act or omission of counsel” would
22 ANDERSON V. NEVEN

have “some conceivable effect on the outcome of the
proceeding,” Strickland, 466 U.S. at 693, petitioners must
show the likelihood of a different result is “substantial.” Id.
at 682. In weighing counsel’s performance against an
adverse court ruling, “[t]he assessment of prejudice should
proceed on the assumption that the decisionmaker is
reasonably, conscientiously, and impartially applying the
standards that govern the decision.” Id. at 695. Ultimately,
given “the strong presumption of competence,” review is
“doubly deferential” when a counsel’s performance is
viewed through the lens of both 28 U.S.C. § 2254(d) and
Strickland. Cullen v. Pinholster, 563 U.S. 170, 190 (2011)
(citation omitted).

We review grants of habeas relief de novo. Bradford v.
Davis, 923 F.3d 599, 609 (2019).

Discussion

1. The State-Law Basis for the Nevada Supreme
Court’s Double Jeopardy Decision Binds this Court
and Does Not Violate Federal Law.

The panel’s disposition and concurrence compound
errors. We’ll start with the obvious ones.

A. The Panel Improperly Addressed an Unraised
Claim.

The panel should not have addressed the merits of the
Nevada Supreme Court’s double jeopardy decision because
Joseph Anderson never challenged it. See Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (observing
the court cannot resolve claims that were not properly raised
in the habeas petition). Anderson conceded in his appellate
brief that “[t]he Nevada Supreme Court’s ruling on the direct
 ANDERSON V. NEVEN 23

appeal is irrelevant.” As recently as oral argument,
Anderson’s appellate counsel continued to deny that
Anderson was challenging the merits of the underlying state
supreme court decision. That eliminated our ability to grant
habeas relief predicated on that decision being incorrect.
Paradis v. Arave, 20 F.3d 950, 954 (9th Cir. 1994)
(“Because this issue was not presented to the district court,
we will not review it.”). That should have made this an easy
case—for the State.

But the panel’s disposition turns on a sua sponte
perceived error in the Nevada Supreme Court’s double
jeopardy decision, even though neither Anderson nor the
State actually presented that issue. The panel in its
concurrence now claims that “[i]t was the State that injected
double jeopardy into this ineffective assistance of counsel
case . . . .” Not true. The State did discuss the Nevada
Supreme Court’s merits decision in its appellate briefing for
two reasons, but neither justified the panel raising and
deciding a claim that, even in its concurrence, the panel
acknowledges was never “before our panel.”

First, the State had to address the Nevada Supreme
Court’s double jeopardy decision because the federal district
court erroneously held in its first order that Anderson’s
guilty plea resulted in a premature double jeopardy claim.
The State explained in its briefing for rehearing before the
district court that this was simply factually wrong because
the Nevada Supreme Court squarely addressed (and
rejected) Anderson’s double jeopardy claim on the merits.
Anderson, 129 Nev. at 1095.

Second, the State discussed the Nevada Supreme Court’s
double jeopardy decision to rebut the district court’s false
notion that Anderson was prejudiced by his counsel not
going to trial because Anderson may have prevailed on his
24 ANDERSON V. NEVEN

double jeopardy claim in trial court. Because the Nevada
Supreme Court rejected Anderson’s double jeopardy claim
on the merits, it would have made no difference if he had
gone to trial and the trial court had dismissed his claim on
double jeopardy grounds. If that had happened, the Nevada
Supreme Court would have just reversed the trial court’s
double jeopardy ruling and sent the case back. As the State
explained in its opening brief:

Even if Anderson had proceeded to trial on
his felony DUI claim causing death, he would
not have prevailed on his double jeopardy
challenge on appeal. The federal district
court’s assumption that going to trial would
have created a complete defense to DUI
causing death or resulted in a different
analysis from the Nevada Supreme Court was
wrong. . . . [A]s the Nevada Supreme Court
specifically rejected the double jeopardy
challenge on Anderson’s direct appeal, there
would have been no difference on appeal had
Anderson proceeded to trial rather than enter
his guilty plea.”

Contrary to the panel’s revisionist history, the State
didn’t bring the Nevada Supreme Court’s merits decision
into the case; the federal district court did, when it
(1) erroneously ruled that Anderson’s guilty plea resulted in
a premature double jeopardy claim, and (2) erroneously
focused on whether Anderson might have prevailed on his
double jeopardy claim in trial court. The State can hardly
be faulted for responding and explaining why the district
court’s decision was wrong. The State’s reliance on the
Nevada Supreme Court’s double jeopardy decision as
dooming Anderson’s chances of prevailing on that claim,
 ANDERSON V. NEVEN 25

whether or not he went to trial, cannot be weaponized as a
legitimate reason for the panel to attack that decision when
Anderson himself didn’t. See Ahlswede v. Wolff, 720 F.2d
1108, 1109 (9th Cir. 1983) (per curiam) (“[T]he only issues
properly before this court are those in the petition.”). 3

Moreover, even if the State had gratuitously and
needlessly defended the merits of the Nevada Supreme
Court’s double jeopardy decision, that still would not justify
the panel reaching out to decide an issue that Anderson never
raised. Federal habeas review requires the petitioner to
frame the review through his claims. See Mannes v.
Gillespie, 967 F.2d 1310, 1316 n.6 (9th Cir. 1992) (declining

3
While the panel’s concurrence erroneously claims that it was “the
State that injected double jeopardy into this . . . case,” it is notable that
neither the panel’s original decision nor its concurrence ever confronts
the actual reason the State talked about the Nevada Supreme Court’s
double jeopardy decision. That argument, block-quoted above, was that
whether he went to trial or pled-and-immediately-appealed, Anderson’s
double jeopardy claim was ultimately doomed because the Nevada
Supreme Court was going to reject Anderson’s double jeopardy claim on
the merits either way. As the State explained, “[t]he Nevada Supreme
Court’s [double jeopardy] determination was not premised specifically
upon a conviction pursuant to a guilty plea versus a jury trial.” Thus,
Anderson could not have been prejudiced by his counsel’s decision to
appeal immediately versus go to trial—the ultimate result at the Nevada
Supreme Court would be identical.

Like Anderson, the State’s arguments to the panel all assumed that
the merits of the Nevada Supreme Court’s decision were not on the table
because Anderson never challenged that decision. As the State
explained in its opening brief to the panel: “[T]he Nevada Supreme Court
rejected Anderson’s argument that the two crimes violated double
jeopardy. Anderson conceded the truth of this point in . . . his federal
habeas petition . . . .” It was only the panel that felt the need to reach out
and “explain[] that the Nevada Supreme Court incorrectly decided”
Anderson’s double jeopardy claim in order to justify its decision.
26 ANDERSON V. NEVEN

to consider on appeal a double jeopardy claim that the
petitioner did not raise in the original state or federal habeas
petition). As the Supreme Court has made clear, we are
barred from reviewing claims not included in a federal
habeas petition. See, e.g., Davila v. Davis, 137 S. Ct. 2058,
2064 (2017); O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); Coleman v. Thompson, 501 U.S. 722, 745 (1991).
The panel had no business reaching out and deciding
whether the Nevada Supreme Court’s double jeopardy
decision was correct. 4

B. Nevada’s State Law Adjudication Binds this
Court.

Both the federal district court and the panel concluded
that the Nevada Supreme Court erred in rejecting
Anderson’s double jeopardy claim and relied on that
conclusion in granting habeas relief. But the Nevada
Supreme Court’s adjudication of Anderson’s double
jeopardy appeal on the merits may not be challenged by this
court, for two independent reasons.

4
The panel asks in footnote 1 of its concurrence how it “could have
addressed . . . the State’s argument that Anderson suffered no prejudice”
without reaching and effectively overruling the Nevada Supreme Court’s
Double Jeopardy decision. Easy. It could have simply explained that
Anderson’s counsel could not possibly have been ineffective for
presenting a question to the Nevada Supreme Court that (in the panel’s
mistaken view) the Nevada Supreme Court should have decided in
Anderson’s favor. And because the only claim Anderson raised in this
court was an ineffective assistance of counsel claim, his federal habeas
claim necessarily fails. Perhaps what the panel is really asking in its
footnote is how could it possibly have granted habeas relief to Anderson
without sua sponte reaching out and effectively overturning the Nevada
Supreme Court’s decision (that Anderson never challenged). Now that,
admittedly, is a harder question.
 ANDERSON V. NEVEN 27

First, the panel attempted to conjure fault with the
Nevada Supreme Court’s decision by recasting it. The
Nevada Supreme Court held that “[f]ailure to yield is not a
lesser-included offense of DUI causing death because each
requires proof of an element the other does not
‘notwithstanding a substantial overlap in the proof offered to
establish the crimes.’” Anderson, 129 Nev. at 1095 (quoting
Brown v. Ohio, 432 U.S. 161, 166 (1977)). On its face, this
is a broad and categorical statement. Yet the panel read this
as merely a general statement that “failure to yield is not
always a lesser included offense.” Anderson, 797 F. App’x
at 295 (emphasis added). But that’s not what the Nevada
Supreme Court said, and it is quite telling that the panel
found it necessary to add words to the Nevada Supreme
Court’s ruling to justify the panel’s forced misreading of it.
By virtue of its reframed holding and the fact the Nevada
Supreme Court did not include the phrase “in this case” in
its explication of Nevada law, see Anderson, 129 Nev.
at 1095, the panel strangely infers that the Nevada Supreme
Court must have been speaking about statutory elements
generally, rather than Anderson’s specifically pled offenses.
Anderson, 797 F. App’x at 295. 5

5
Stranger still, the panel in its concurrence now argues that it its
original decision could not have “failed to defer to the Nevada Supreme
Court on a question of state law” because “the Nevada Supreme Court
never decided a state law question.” That’s not what the panel said in its
original decision, which states: “we defer to the Nevada Supreme Court’s
conclusion that, as a matter of state law, failure to yield is not always a
lesser included offense of DUI causing death.” Anderson, 797 F. App’x
at 295 (emphasis added). The Nevada Supreme Court’s categorical
statement that “[f]ailure to yield is not a lesser-included offense of DUI
causing death because each requires an element the other does not,”
Anderson, 129 Nev. at 1095 (emphasis added), cannot reasonably be read
as anything other than “holding forth on the elements of the state failure-
28 ANDERSON V. NEVEN

Only through that results-driven reading can the panel
then claim that it is properly deferring to the Nevada
Supreme Court’s binding interpretation of state law, while
rejecting the state court’s supposed misapplication of clearly
established federal law. This is a deliberately strained
misreading of the Nevada Supreme Court’s description of
Nevada law. Beyond the fact that one would normally read
a court’s legal analysis in the context of the issues actually
before the court (here, Anderson’s double jeopardy claim),
the decision’s text expressly applies the Nevada Supreme
Court’s reasoning to determine “the district court did not err
by rejecting Anderson’s claim.” Anderson, 129 Nev. at 1095
(emphasis added).

Second, even if Anderson had challenged the Nevada
Supreme Court’s double jeopardy ruling, that ruling turned
squarely on that court’s interpretation of the elements of
Nevada criminal law, which, like it or not, is binding on this
court. Perhaps because lower federal courts seem to forget
this, the Supreme Court has had to repeatedly “reemphasize
that it is not the province of a federal habeas court to
reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). 6

to-yield and DUI-causing-death offenses.” The panel was right before it
was wrong.
6
See also Brown v. Ohio, 432 U.S. 161, 167 (1977) (“Ohio courts
‘have the final authority to interpret . . . that State’s legislation.’”);
Illinois v. Vitale, 447 U.S. 410, 416 (1980) (“We accept, as we must, the
Supreme Court of Illinois’ identification of the elements of the offenses
involved here.”); Missouri v. Hunter, 459 U.S. 359, 368 (1983) (“We are
bound to accept the Missouri court’s construction of that State’s
statutes.”); Ohio v. Johnson, 467 U.S. 493, 499 (1984) (“We accept, as
we must, the Ohio Supreme Court’s determination that the Ohio
 ANDERSON V. NEVEN 29

Even if we were allowed to slip off our federal robes and
try on those of a state supreme court justice, the Nevada
Supreme Court’s explication of Nevada’s criminal statutes
was far from clearly wrong. The Nevada Supreme Court’s
decision, like many state court decisions affirming criminal
convictions, is not long on analysis or explanation. It need
not be. Even so, on close inspection there is a good basis for
thinking that the panel’s forbidden frolic with state criminal
law interpretation managed to get both state and federal law
wrong. 7

We start with the text of Nevada’s DUI causing death
statute. Section 484C.430(1) of Nevada’s revised statutes
makes it a felony if someone drives while under the
influence of a prohibited substance and

Legislature did not intend cumulative punishment for the two pairs of
crimes involved here.”).

7
The panel’s concurrence criticizes this next portion of the dissent
as “advanc[ing] its own novel theory” of Nevada state law, and responds
that “[i]t is enough to say that . . . the State . . . never advanced any such
arguments.” Of course it didn’t. Neither Anderson nor the State ever
challenged the Nevada Supreme Court’s double jeopardy analysis, so
there was obviously no reason for the State (or anyone else) to defend it.
It is only because the panel in its opinion sua sponte attacked the Nevada
Supreme Court’s analysis that the issue has even become relevant.
Having embarked on its own “sua sponte adventure through Nevada
law” by expressly basing its decision on the conclusion that the Nevada
Supreme Court erred on its explication of the elements of Nevada law
“in Anderson’s particular case,” Anderson, 797 F. Appx. at 295
(emphasis in original), the panel cannot now so easily ignore the disaster
that awaits at the end of its own chosen chapter. If the panel wants to
avoid such unpleasant surprises, it probably shouldn’t reach out and
decide issues not raised by the parties—especially issues of state law
where the state’s highest court has authoritatively spoken.
30 ANDERSON V. NEVEN

. . . does any act or neglects any duty
imposed by law while driving or in actual
physical control of any vehicle on or off the
highways of this State, if the act or neglect
of duty proximately causes the death of, or
substantial bodily harm to, another person
....

Nev. Rev. Stat. Ann. § 484C.430(1) (emphasis added).
While Anderson and the panel insist on speaking of this
language as requiring a “predicate offense,” the statutory
language does not actually require a predicate criminal
offense to be convicted of DUI causing death. 8 It only
requires that the defendant “neglects any duty imposed by
law” and that that “neglect of duty proximately causes the
death of . . . another person.” Id. The Nevada Supreme
Court has never said this element requires a “neglect of duty
imposed by criminal law.” To the contrary, the Nevada
Supreme Court in discussing Nevada’s DUI causing death
statute has elsewhere characterized the “act or neglect of
duty” required by that statute as possibly being simply a
“negligent act” committed while driving intoxicated. See
State v. Johnston, 563 P.2d 1147, 1148 (Nev. 1977).

8
This error continues to plague the panel’s concurrence, where the
panel claims in the very first paragraph (and continues the theme
throughout) that Anderson’s DUI-causing-death “charging document
specifically relied on Anderson’s failure-to-yield offense to establish”
the neglect-of-duty element. No. The actual charging document
mentioned neither Nevada Revised Statute § 484B.257 (Nevada’s
failure-to-yield statute) nor Anderson’s failure-to-yield criminal
complaint or conviction. Nor did it say anything about a “predicate
offense”—criminal or otherwise. It simply said that Anderson “did
neglect his duty imposed by law to yield from a stop sign to oncoming
traffic.”
 ANDERSON V. NEVEN 31

Moving to the text of the “Failure to Yield” statute, it
requires Nevada drivers to “stop . . . at a clearly marked stop
line . . . . [and] yield the right-of-way.” Nev. Rev. Stat. Ann.
§ 484B.257(1). By both its plain text and Nevada precedent,
the statute imposes two separate duties on drivers. Kerr v.
Mills, 483 P.2d 902, 904 (Nev. 1971) (“NRS 484.319 [now
NRS 484B.257] imposed . . . a duty to stop ‘at the entrance’
to [the] road, and to yield the right of way to other vehicles
‘approaching so closely on such through highway as to
constitute an immediate hazard.’”) (emphasis added)
(citation omitted). Failure to fulfill either duty would
constitute misdemeanor Failure to Yield. Id. at 904 (“it was
the disfavored driver’s duty ‘not only to stop at the stop sign,
but also to look carefully’ and permit the favored driver to
pass”) (citation omitted).

Because misdemeanor Failure to Yield requires the
neglect of only one of its two discrete duties, and DUI
Causing Death only requires the neglect of one duty for its
predicate, the elements of the two crimes would not perfectly
overlap to create a double jeopardy issue where the charged
individual violated both duties. In Anderson’s case,
Anderson both failed to stop at the stop sign and failed to
give the right of way to oncoming traffic. The State could
charge Anderson with neglecting either as a predicate for
Failure to Yield, while using the other as the predicate
“neglect of duty” for DUI Causing Death. By neglecting
both duties under Failure to Yield, Anderson ensured in his
specific case that two different duties could be applied under
each charge for Failure to Yield and DUI Causing Death—
eliminating any double jeopardy claim.

This interpretation is completely consistent with the
Nevada Supreme Court’s short but categorical statement in
Anderson’s direct appeal that “[f]ailure to yield is not a
32 ANDERSON V. NEVEN

lesser-included offense of DUI causing death because each
requires proof of an element the other does not
‘notwithstanding a substantial overlap in the proof offered to
establish the crimes.’” Anderson, 129 Nev. at 1095
(emphasis added and citation omitted). It is also consistent
with Nevada’s legislative intent, as authoritatively described
by the Nevada Supreme Court elsewhere and cited in
Anderson. See Jenkins v. Fourth Jud. Dist. Ct., 849 P.2d
1055, 1057 (Nev. 1993) (observing “a clear legislative intent
to prevent defendants from escaping a conviction for felony
DUI through pleading to a ‘lesser charge’”) (citation
omitted).

C. Under AEDPA, We Must Defer to the Nevada
Supreme Court’s Interpretation of Federal Law
Unless Inconsistent with Clearly Established
Supreme Court Precedent.

In order to grant habeas relief to Anderson, the panel had
to conclude the Nevada Supreme Court decision was “an
unreasonable application of[] clearly established Federal
law.” 28 U.S.C. § 2254(d)(1). It is worth pausing for a
moment to reemphasize that this next point only matters if
(a) you indulge the fiction that the correctness of the Nevada
Supreme Court’s double jeopardy ruling was properly before
the panel, and (b) you believe the Nevada Supreme Court’s
explication of the elements of the two crimes at issue in
Anderson was unrelated to the actual case before it. Only
adventurers who theoretically overcame those predicate
obstacles need grapple with this additional flaw in the
panel’s decision.

Under AEDPA review, “clearly established Federal law”
is supplied by Supreme Court precedent—not circuit court
precedent—that has “squarely addresse[d]” the specific
issue and provided a “clear answer to the question
 ANDERSON V. NEVEN 33

presented,” Wright v. Van Patten, 552 U.S. 120, 125–26
(2008) (per curiam), based on “materially indistinguishable
facts.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003). Here,
the panel block-quoted a Seventh Circuit case that “relied on
a trio of Supreme Court cases.” Anderson, 797 F. App’x
at 295, 295 n.1 (quoting United States v. Hatchett, 245 F.3d
625, 637 (7th Cir. 2001)). The panel presumably did not
apply a “clearly established” rationale if it needed to rely
upon an out-of-circuit case that cobbled together multiple
Supreme Court cases (and separate opinions) to devise a
rule. See Woodall, 572 U.S. at 426. “Circuit precedent
cannot ‘refine or sharpen a general principle of Supreme
Court jurisprudence into a specific legal rule that [the
Supreme] Court has not announced.’” Lopez v. Smith,
574 U.S. 1, 7 (2014) (citation omitted) (reversing because
the Ninth Circuit applied its own precedent in affirming the
grant of a federal habeas petition).

The reason the panel was required to quote an out-of-
circuit decision to support its ruling, and not the “trio of
Supreme Court cases” directly, is because the Supreme
Court’s fractured double jeopardy jurisprudence in this area
cannot be fairly described as “clearly established.” 9 The
most recent Supreme Court case addressing double jeopardy
in the context of separate prosecutions is United States v.
Dixon, 509 U.S. 688 (1993). In it, Justice Scalia wrote a
four-vote plurality arguing that courts should apply the
Blockburger test to the crimes as charged (finding a double
jeopardy violation), id. at 700, while Chief Justice

9
“The Supreme Court has repeatedly warned against applying its
precedents at too high a level of generality in determining whether a state
court’s decision unreasonably applied clearly established federal law.”
Turner v. McEwen, 819 F.3d 1171, 1178 (9th Cir. 2016); see also
Jackson, 569 U.S. at 512.
34 ANDERSON V. NEVEN

Rehnquist’s three-vote concurrence reasoned the Court
should only compare the elements of the crimes (finding no
double jeopardy violation). Id. at 714 (Rehnquist, C.J.,
concurring in part and dissenting in part). 10 This, of course,
only underscores why the panel’s decision in this case is
particularly concerning—if the Supreme Court itself has
been unable to provide a majority opinion that “squarely
addresses” how double jeopardy should be applied to
claimed “lesser-included” crimes in this context, then it is
not appropriate for the Ninth Circuit to tell a state supreme
court it has violated “clearly established” Supreme Court
precedent.

The panel was wrong to reach an issue never raised by
Anderson’s federal habeas petition, and it decided wrongly
what it wrongly reached. I hope it is not lost that all this
wrongness happened in the context of AEDPA—where we
are not supposed to overturn a state criminal conviction
unless the state court was “clearly” wrong.

2. The Panel Erred in Finding Ineffective Assistance of
Counsel.

Recognizing that the Nevada Supreme Court’s
interpretation of Nevada criminal law is binding on this
court, and that Anderson’s double jeopardy claim was
ultimately destined to fail regardless, Anderson’s only
habeas claim properly before this court—his ineffective
assistance of counsel claim—evaporates. Because he never

10
Worse, since Hatchett the Seventh Circuit has itself
acknowledged that “[t]he ‘lesser-included-offense’ analysis in Dixon
included five separate opinions, all reaching different conclusions as to
how Blockburger should apply . . . . we don’t see any federal law as
being clearly established from that five-way divide.” Boyd v. Boughton,
798 F.3d 490, 500 (7th Cir. 2015) (emphasis added).
 ANDERSON V. NEVEN 35

challenged the Nevada Supreme Court’s double jeopardy
ruling, Anderson created for himself a classic catch-22: if the
Nevada Supreme Court’s double jeopardy ruling was wrong,
his trial counsel’s decision to plead guilty and immediately
appeal the double jeopardy issue was hardly ineffective. On
the other hand, if the Nevada Supreme Court’s double
jeopardy ruling was correct and Anderson was ultimately
bound to lose his double jeopardy argument on appeal
whether he went to trial or not, then by pleading guilty he at
least bought dismissal of two of the State’s claims.

Anderson’s catch-22 lurks beneath the surface of every
available path in the panel’s chose-your-own-adventure
saga, and is the reason why all paths end badly. It is the
reason why the panel felt compelled, in its short
memorandum disposition, to try to escape this dilemma by
concluding the Nevada Supreme Court was wrong. 11

A. Analyzing Trial Counsel’s Actions

Anderson claims, and the federal district court and panel
agreed, that the state district court’s denial of his pre-plea
motion to dismiss his felony DUI charge foreshadowed a
successful double jeopardy claim. See Anderson, 797 F.
App’x at 294–95. But Anderson’s trial counsel also
recognized that the State was on notice, via all-caps lettering
in the Nevada district court’s opinion, that “IF THE STATE
IS UNABLE TO PROVE ANY VIOLATION OF LEGAL

11
The panel seems to have recognized this problem at oral argument
when it asked: “Why didn’t you file, in your habeas petition, another
claim challenging the Nevada Supreme Court’s assertion that double
jeopardy didn’t apply?” See Anderson v. Neven, No. 18-16502, UNITED
STATES COURTS FOR THE NINTH CIRCUIT (Nov. 13, 2019),
https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000016
553 (17:33–17:46).
36 ANDERSON V. NEVEN

DUTY AT TRIAL OTHER THAN THE FAILURE TO
STOP, THEN THIS CASE WILL BE DISMISSED.”
(emphasis added). Counsel likewise knew, as the State
alleged in multiple filings, that the State could change (and,
per the Nevada district court, should change, the specific
neglect-of-duty element charged before or during trial. See
Nev. Rev. Stat. Ann. § 484C.430(1) (requiring “any act” or
any other neglected duty). If this had happened, Anderson
risked a jury conviction for all charged offenses and losing
the ability to appeal any plausible double jeopardy claim.
Counsel wisely urged Anderson to plead no-contest to the
failure-to-yield charge and subsequently plead guilty to the
DUI felony charge, “locking in” the predicate offense such
that the State could not change the underlying type of
violation of legal duty. This gave Anderson his best chance
at getting his felony DUI charge dismissed on double
jeopardy grounds. It was a good strategy—probably the best
available under the circumstances.

Justifiably hoping to benefit from the Nevada district
court’s explicit warning to the State, Anderson’s trial
counsel “locked in” the basis for his double jeopardy claim
and appealed to the Nevada Supreme Court. That court
directly considered and rejected his double jeopardy
argument based on its interpretation of the elements of the
two state criminal offenses charged. Anderson, 129 Nev.
at 1095. Given the Nevada Supreme Court’s binding
interpretation of the elements of failure-to-yield and DUI
causing death, there is no way Anderson could have
prevailed on his double jeopardy claim. He either would
have pled, appealed, and lost, or he would have gone to trial,
perhaps won a dismissal (if the State didn’t change its
complaint), but lost on appeal anyway. Either way, his
double jeopardy claim was destined to fail under Nevada
law.
 ANDERSON V. NEVEN 37

Anderson’s trial counsel was only even potentially
ineffective if the Nevada Supreme Court’s double jeopardy
decision is wrong and reviewable. Of course, when the
Nevada Supreme Court addressed the merits of Anderson’s
double jeopardy claim, it found, as a matter of state law, that
“[f]ailure to yield [was] not a lesser included offense of DUI
causing death . . . .” Anderson, 129 Nev. at 1095. But that
doesn’t mean Anderson’s counsel was ineffective—it just
means he rolled the dice on Nevada law and didn’t get the
interpretation of state law he was hoping for. Even if the
Nevada Supreme Court erred (as a matter of state or federal
law), he wasn’t ineffective. The Nevada Supreme Court’s
double jeopardy decision (which Anderson doesn’t
challenge), not his trial counsel’s strategy, is what deprived
Anderson of victory. Whether the Nevada Supreme Court
was right or wrong, the central claim of Anderson’s petition
fails: his trial counsel made a legitimate and understandable
litigation decision and there was no prejudice from counsel’s
actions under either outcome. Richter, 562 U.S. at 104.

B. Applying Strickland

The panel ignored the “strong presumption” that trial
counsel’s actions reflect “tactics rather than ‘sheer neglect.’”
Richter, 562 U.S. at 109 (citation omitted). Counsel’s
actions here, calibrated by both the Nevada district court’s
ruling and his understanding of the law, were not neglectful.
Strickland, 466 U.S. at 687. The only way Anderson could
have been prejudiced by trial counsel’s plead-then-appeal
strategy would be if counsel had waived the right to appeal
on double jeopardy grounds or the Nevada Supreme Court
had denied the double jeopardy claim because jeopardy had
not yet attached. But the record is clear: trial counsel
preserved the right to appeal, the Nevada Supreme Court
believed jeopardy had attached, and addressed his claim on
38 ANDERSON V. NEVEN

the merits (just not the way Anderson would have liked).
Anderson, 129 Nev. at 1095. To hold that “no reasonable
attorney would have advised Anderson in this manner,”
Anderson, 797 F. App’x at 294, is based on at least two false
assumptions.

The first is that the ultimate result would have been
different if Anderson had gone to trial, notwithstanding the
Nevada Supreme Court’s categorical denial of Anderson’s
double jeopardy claim. The panel’s and federal district
court’s fixation on how the state trial court would have
handled the double jeopardy claim absent the plea is
inexplicably myopic. Anderson’s double jeopardy claim
ultimately rose or fell based on how the Nevada Supreme
Court interpreted the elements of Nevada law, not the state
trial court.

The panel decision’s second false assumption is that the
prosecution would have ignored the pointed, emphatic
rhetoric from the Nevada district court and blithely pursued
a course destined to fail in the lower court (but, as we all now
know, destined to prevail on appeal). Again, the only bases
for that assumption are a lack of imagination and a
misreading of the DUI causing death statute. To his credit,
Anderson’s trial counsel did not lack imagination, and took
swift action to “lock in” failure-to-yield as the element, thus
ensuring the best double jeopardy case possible for
Anderson on appeal to the Nevada Supreme Court. As the
Supreme Court has repeated, our “adversary system requires
deference to counsel’s informed decisions [and] strategic
choices must be respected.” Strickland, 466 U.S. at 681; see
also Richter, 562 U.S. at 109 (“The Court of Appeals erred
in dismissing strategic considerations like these as an
inaccurate account of counsel’s actual thinking.”).
 ANDERSON V. NEVEN 39

CONCLUSION

Sometimes tension exists between justice for criminal
defendants and adherence to the strict limits of federal
habeas review of state court convictions. This is not one of
those cases. Joseph Anderson killed someone after running
a stop sign while driving under the influence of marijuana.
He got very effective assistance from his trial counsel, the
Nevada Supreme Court made its ruling on the elements of
Nevada criminal law, and the federal courts granted federal
habeas relief. Only the latter is clearly wrong, and this court
should have taken this case en banc to fix it.

The panel’s concurrence in denial of rehearing en banc
essentially asks why I’m making such a big deal since its
decision was just an “unpublished memorandum
disposition” and doesn’t “present a ‘question of exceptional
importance.’” Respectfully, federalism is exceptionally
important. So too is strict adherence to our limited review
of state court convictions. Our court ventured out to decide
a claim Anderson never raised, casually rejected the state
court’s binding interpretation of state law, and now has
doggedly refused to fix its own mistakes. That should be
quite troubling to everyone—not least to our court. If, as the
panel claims, this case is no different than “the hundreds of
habeas petitions our court adjudicates every year,” then yes,
we have, in fact, “mounted a full-on federal takeover of the”
state criminal justice systems in our circuit, and we need to
stop.

* * *

This case has layers of irony. The panel accused the
Nevada Supreme Court of muddling its double jeopardy
analysis, but in doing so it muddled its own ineffective
assistance of counsel analysis. The panel sought to correct
40 ANDERSON V. NEVEN

the Nevada Supreme Court’s misguided interpretation of the
elements of Nevada criminal law, and in doing so incorrectly
read Nevada’s criminal statutes and incorrectly ignored
well-established federal authority recognizing state courts as
the final arbiters of state law. And the panel concluded that
“no reasonable attorney would have advised Anderson” to
plead guilty and appeal his double jeopardy claim, Anderson,
797 F. App’x at 294, when arguably no fully informed,
reasonable attorney would have advised otherwise.

Ironies notwithstanding, “I doubt the Supreme Court will
be amused.” Tarango v. McDaniel, 837 F.3d 936, 954 n.3
(9th Cir. 2016) (Rawlinson, J., dissenting). At least I hope
not. This court menaces federalism when it cavalierly
vacates state court convictions that aren’t even close calls
under AEDPA. This case is a particularly glaring example
of that. The Supreme Court has provided us “many rebukes”
for such behavior. Id. Because this deeply flawed decision
presented an easy opportunity to fix our most egregious
habeas overreaching, and we failed to do so, I respectfully
dissent.