McCloud, Kevin R. v. Deppisch, Jodine ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2561
KEVIN R. MCCLOUD,
Petitioner-Appellant,
v.
JODINE DEPPISCH,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 206—Aaron E. Goodstein, Magistrate Judge.
____________
ARGUED JANUARY 18, 2005—DECIDED JUNE 2, 2005
____________
Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Kevin McCloud pleaded guilty to
state charges of robbery and operating a vehicle without the
owner’s consent arising from a carjacking incident. He later
sought postconviction relief from the consecutive terms of
imprisonment he was ordered to serve on these charges,
contending that because the charges amount to the same
offense when the object of the robbery is an automobile, the
cumulative punishments deprived him of his constitutional
right not to be twice placed in jeopardy for the same offense.
The Wisconsin Court of Appeals rejected the premise of his
2 No. 04-2561
claim, finding that robbery and operating a vehicle without
the owner’s consent are separate offenses for which the
Wisconsin legislature had authorized cumulative punish-
ments. McCloud now seeks a writ of habeas corpus, contend-
ing that the Wisconsin Court of Appeals erred in determin-
ing that the two offenses are distinct for purposes of the
double jeopardy analysis. However, because the state
court’s error, if any, was one of state law, it is beyond the
limited scope of habeas review.
I.
David Shelby and his friend Bette Dunn were driving
through the State of Wisconsin on the evening of August 12,
1997, when they stopped at a Walgreen’s drugstore at ap-
proximately 11:00 p.m. Shelby left his keys in the ignition
of his car while he ran inside a nearby Taco Bell; Dunn
remained behind in the car. At that moment, McCloud
and his wife, Donna McCloud, happened to drive by the
Walgreen’s parking lot. Earlier that evening, the McClouds
had spent several hours celebrating Donna’s birthday at a
local tavern but had run out of money; they decided to find
someone to rob. After driving around the city for an hour or
more, the McClouds came upon the Walgreen’s lot just in
time to spot Shelby getting out of his Cadillac. On further
reconnaissance, McCloud noticed that the keys were in the
ignition of the car. The McClouds had found their victims.
McCloud walked up to the car and entered through the
unlocked driver’s-side door. He told Dunn to get out of the
car and opened her door. Dunn screamed and struggled
with McCloud. Shelby, on returning to the car, observed the
struggle and intervened. He backed off when McCloud
asked him, “Do you want to die?” As McCloud put the car in
gear and began to drive away from the scene, Dunn was
thrown from the vehicle through the open passenger-side
door and run over. She died as a result of the injuries she
sustained.
No. 04-2561 3
McCloud and his wife were apprehended a short time
later. McCloud pleaded no contest to one count of second-
degree reckless homicide, and he pleaded guilty to two counts
of robbery along with one count of operating a vehicle with-
out the owner’s consent. The Milwaukee County Circuit
Court ordered him to serve a ten-year prison term on the
reckless homicide count, two ten-year terms on the robbery
counts concurrent with one another and consecutive to the
reckless homicide sentence, and a five-year term for oper-
ating a vehicle without the owner’s consent consecutive to
all other sentences—for a total prison term of 25 years.
McCloud subsequently filed a postconviction motion ask-
ing the state court for relief from his consecutive sentence
for operating a vehicle without the owner’s consent.1 He
asserted that robbery (when the item stolen is a car) and
operating a vehicle without the owner’s consent amount to
the same offense and that punishing him cumulatively on
both charges violated his right under the federal and
Wisconsin constitutions not to be placed in jeopardy twice
for the same offense. The circuit court denied the motion,
and McCloud appealed both the judgment of conviction and
1
The general rule in Wisconsin is that a guilty plea waives all
non-jurisdictional defects and defenses, including claims that the
defendant’s constitutional rights were violated prior to the plea.
Mack v. State, 286 N.W.2d 563, 566 (Wis. 1980). However, a plea
of guilty is not treated as a waiver of double jeopardy claims, State
v. Morris, 322 N.W.2d 264, 265 n.2 (Wis. 1982), unless the
defendant has expressly waived his double jeopardy rights, State
v. Robinson, 638 N.W.2d 564, 567 & n.6 (Wis. 2002) (citing State
v. Hubbard, 538 N.W.2d 126, 129 (Wis. Ct. App. 1996)). The
limited record before us does not suggest that McCloud expressly
waived his double jeopardy claim in pleading guilty, and in any
event the State by its own concession has not argued at any point
in the review of McCloud’s claim that he waived it, thereby waiv-
ing waiver. See, e.g., Cromeens, Holloman, Sibert, Inc. v. AB Volvo,
349 F.3d 376, 389 (7th Cir. 2003).
4 No. 04-2561
the denial of his postconviction motion to the Wisconsin
Court of Appeals. The appellate court affirmed in an unre-
ported decision. State v. McCloud, No. 98-2961-CR, Opinion
& Order (Wis. Ct. App. Dec. 13, 1999).
Recognizing that the Double Jeopardy Clause2 permits
multiple punishments to be imposed on a defendant in a
single prosecution so long as the legislature authorized
cumulative punishments, the Wisconsin Court of Appeals
examined the relevant indicia of legislative intent and con-
cluded that the Wisconsin legislature had intended to au-
thorize separate penalties for both robbery and operating a
vehicle without the owner’s consent. Applying the “same
elements” test of Blockburger v. United States, 284 U.S.
299, 304, 52 S. Ct. 180, 182 (1932), the court considered
first whether, as McCloud argued, these two crimes
amounted to the same offense. State v. McCloud, Op. at 4.
More specifically, the court considered whether one could be
considered a lesser included offense of the other. Id. The
court concluded that the answer to this inquiry was no, in
that each offense required proof of an element that the other
did not. Operating a motor vehicle without the owner’s
consent required proof that McCloud drove the vehicle,
whereas one could rob the owner of his vehicle by towing it,
hoisting it onto a truck, or pushing it into a garage rather
than driving it away. Id. at 5; see Wis. Stat. § 943.23(2).
2
Like the Fifth Amendment to the United States Constitution,
Article I § 8(1) of the Wisconsin Constitution provides that “no
person for the same offense may be twice put in jeopardy or pun-
ishment . . . .” The Wisconsin Supreme Court’s “tradition is to
view these provisions as identical in scope and purpose.” State v.
Davison, 666 N.W.2d 1, 6 (Wis. 2003) (citing Day v. State, 251
N.W.2d 811 (Wis. 1977)). Accordingly, the Wisconsin Court of
Appeals engaged in a single analysis of McCloud’s double jeopardy
claim, without differentiating between the federal and state
constitutional provisions as to double jeopardy.
No. 04-2561 5
Robbery, on the other hand, required proof that McCloud
used force and that he intended to steal the car (i.e.,
permanently deprive the owner of the vehicle), neither of
which would be necessary in order to show that he operated
the vehicle without the owner’s consent. McCloud, Op. at 5;
see Wis. Stat. § 943.32(1)(a). Because, in these respects, the
offenses were distinct, “the presumption arises that the
legislature intended for cumulative punishment for both
offenses.” McCloud, Op. at 5 (citing State v. Lechner, 576
N.W.2d 912, 920 (Wis. 1998)). The court considered whether
there were any other factors, including the language of the
statutes, legislative history, the nature of the conduct
proscribed, or propriety of multiple punishments, that
might indicate a legislative intent not to authorize cumula-
tive penalties. Id. It concluded, however, that there were no
such circumstances rebutting the presumption that multiple
punishments were authorized. Id. at 6. Accordingly, the
court concluded that McCloud was not twice put in jeopardy
when he was consecutively sentenced for the two offenses.
McCloud sought review in the Wisconsin Supreme Court,
which declined to hear his case. State v. McCloud, 609
N.W.2d 474 (Wis. 2000) (table).
Having exhausted his state court remedies, McCloud
sought a writ of habeas corpus from the district court. The
parties consented to disposition by the magistrate judge,
who denied McCloud’s habeas petition in an unreported
decision. McCloud v. Gamble, No. 01 C 206, Decision &
Order (E.D. Wis. March 31, 2004). The court examined the
elements of robbery and operating a motor vehicle without
the owner’s consent and concluded that the Wisconsin Court
had not unreasonably determined that neither was a lesser
included offense of the other, such that the two were the
same for purposes of the Double Jeopardy inquiry. Id. at 3-
5. The court subsequently granted McCloud’s request for a
certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b).
6 No. 04-2561
II.
The Fifth Amendment’s Double Jeopardy Clause, made
applicable to the States via the Due Process Clause of the
Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784,
793-96, 89 S. Ct. 2056, 2062-63 (1969), provides that “[no]
person [shall] be subject for the same offence to be twice put
in jeopardy of life or limb[.]” U.S. CONST. amend. V. This
provision protects the criminal defendant in three ways.
The first two, and most familiar, of these protections
operate as a limit on the executive branch, barring the gov-
ernment from prosecuting the defendant a second time for
an offense after he has been convicted or acquitted of that
same offense. See Jones v. Thomas, 491 U.S. 376, 381, 109
S. Ct. 2522, 2525 (1989); United States v. Handford, 39 F.3d
731, 735 (7th Cir. 1994). Neither of these two protections is
at issue here, for McCloud was not serially prosecuted. It is,
instead, the third protection which is relevant, and that is
“the protection against ‘multiple punishments for the same
offense’ imposed in a single proceeding.” Jones, 491 U.S. at
381, 109 S. Ct. at 2525 (quoting North Carolina v. Pearce,
395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969), overruled in
part on other grounds by Alabama v. Smith, 490 U.S. 794,
109 S. Ct. 2201 (1989)).
This third protection is a limited one, for the Double
Jeopardy Clause does not preclude the imposition of mul-
tiple punishments for the same offense, so long as the
legislature has authorized cumulative punishment. See id.;
109 S. Ct. at 2525. As we noted in Handford, it is the
legislature and the legislature alone that has the power to
define criminal offenses and to proscribe penalties for them.
39 F.3d at 735. “As a result, it is completely within a
legislature’s purview to determine that the appropriate
punishment for certain conduct is additional prison time,
even if it has already established that a prison sentence
be increased for a separate offense that includes such con-
duct.” Id. Thus, in the multiple punishments context, the
No. 04-2561 7
Double Jeopardy Clause operates as a limit on the judiciary,
“ ‘ensuring that the total punishment did not exceed that
authorized by the legislature.’ ” Jones, 491 U.S. at 381, 109
S. Ct. at 2525 (quoting United States v. Halper, 490 U.S.
435, 450, 109 S. Ct. 1892, 1903 (1989), overruled in part on
other grounds by Hudson v. United States, 522 U.S. 93, 118
S. Ct. 488 (1997)); see also United States v. McCarter,
___F.3d ___, 2005 WL 1022993, at *2 (7th Cir. April 27,
2005); Handford, 39 F.3d at 735. So long as the legislature
has made sufficiently clear that multiple punishments are
permitted, a court does not violate the Double Jeopardy
Clause by imposing more than one punishment for the same
offense. Id.; see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.
Ct. 673, 678 (1983) (“With respect to cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does
no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.”); see also
Ohio v. Johnson, 467 U.S. 493, 499 n.8, 104 S. Ct. 2536,
2541 n.8 (1984); United States v. Colvin, 353 F.3d 569, 572
(7th Cir. 2003) (en banc).3
The question that McCloud’s claim presented to the
Wisconsin Court of Appeals then, was whether the Wisconsin
legislature had authorized cumulative punishments for the
two offenses of which McCloud was convicted. The court an-
swered that question in the affirmative. Upon examining
the elements of the two crimes, the court concluded that
they did not amount to the same offense under Blockburger,
and the court went on to find that there were no circum-
3
The Double Jeopardy Clause does not limit the number of
charges that the government may bring in a single proceeding.
“While the Double Jeopardy Clause may protect a defendant
against cumulative punishments for convictions on the same
offense, the Clause does not prohibit the State from prosecuting
respondent for such multiple offenses in a single prosecution.”
Ohio v. Johnson, 467 U.S. at 500, 104 S. Ct. at 2541.
8 No. 04-2561
stances rebutting the resulting presumption that the
legislature had authorized multiple punishments.
The thrust of McCloud’s appeal is that the Wisconsin
court erred in concluding that robbery and operating a mo-
tor vehicle without the owner’s consent are not the same
offense. McCloud contends that operating a motor vehicle
without the owner’s consent is a lesser included offense of
robbery, so that the two should be treated as the same of-
fense notwithstanding the fact that robbery requires proof
of additional elements. McCloud reasons that one cannot
steal a vehicle without driving it, whether in the ordinary
sense of getting behind the wheel and motoring away or in
the sense of having the car towed or moved in some other
way. Either way, McCloud insists, the vehicle is being
driven:
To “drive,” for purposes of the OAWOC [operating a
vehicle without the owner’s consent] statute is to exert
“the exercise of physical control over the speed and di-
rection of a vehicle while it is in motion.” Wis. Stat. Ann.
§ 943.23(1)(a). True, if a person tows, hoists, or pushes
a vehicle, the person is not driving a vehicle in the tra-
ditional sense of sitting behind a steering wheel and
applying the gas pedal. But the person is still “driving”
the vehicle for purposes of the OAWOC statute because to
tow, hoist or push a vehicle requires exercising physical
control over the speed and direction of the vehicle while
it is in motion. It is not physically possible to “take” a
vehicle without exercising control over the speed and
direction of the vehicle. And both “driving” a vehicle and
“taking” a vehicle involve asportation—carrying away
and moving property.
McCloud Br. 11-12. Because, in McCloud’s view, these two
offenses are one and the same, a presumption arises that
the legislature did not intend for them to be punished
cumulatively. See Rutledge v. United States, 517 U.S. 292,
297, 116 S. Ct. 1241, 1245 (1996); State v. Davison, 666
N.W.2d 1, 13 (Wis. 2003).
No. 04-2561 9
But the error, if any, in the Wisconsin Court of Appeals’
reasoning was one of state law. The court was examining
the elements of two state offenses to determine whether the
Wisconsin legislature had intended them to be subject to
multiple punishments. The Double Jeopardy Clause did not
in any way limit the Wisconsin legislature’s options. As the
Fourth Circuit has noted, “There is no separate federal
constitutional standard requiring that certain actions be
defined as single or as multiple crimes.” Sanderson v. Rice,
777 F.2d 902, 904 (4th Cir. 1985). Thus, the only question
for the Wisconsin Court of Appeals was what the legislature
had intended. That is purely a matter of state law. Lechner
v. Frank, 341 F.3d 635, 641-42 (7th Cir. 2003); see also
Johnson, 467 U.S. at 500, 104 S. Ct. at 2541 (noting that in
the event defendant was convicted of both greater and
lesser charges in a single prosecution, the state court
presumably “will have to confront the question of cumula-
tive punishments as a matter of state law”) (emphasis ours).
State law errors normally are not cognizable in habeas
proceedings, Estelle v. McGuire, 502 U.S. 62, 67-68, 112
S. Ct. 475, 480 (1991), and the fact that the state court’s
interpretation of state law happens to be central to the
double jeopardy analysis does not permit us to review the
Wisconsin Court of Appeals’ construction of Wisconsin law.
“State courts are the ultimate expositors of their own states’
laws and federal courts entertaining petitions for writs of
habeas corpus are bound by the construction placed on a
state’s criminal statutes by the courts of that state except
in extreme circumstances . . . .” Lechner, 341 F.3d at 641
(quoting Cole v. Young, 817 F.2d 412, 416 (7th Cir. 1997)).
Although McCloud’s double jeopardy claim presents a fed-
eral question, it is one that turns on the intent of the
Wisconsin legislature. The Wisconsin Court of Appeals
undertook an inquiry into the state legislature’s intent with
respect to robbery and operating a motor vehicle without
the owner’s consent, and it concluded that the legislature
10 No. 04-2561
had intended to authorize multiple punishments for those
offenses. We are bound by that determination. See Johnson,
467 U.S. at 499, 104 S. Ct. at 2541 (“We accept, as we must,
the Ohio Supreme Court’s determination that the Ohio
Legislature did not intend cumulative punishment for the
two pairs of crimes involved here.”); Hunter, 459 U.S. at 368,
103 S. Ct. at 679 (“[T]he Missouri Supreme Court has
recognized that the legislature intended that punishment
for violations of the [two] statutes be cumulative. We are
bound to accept the Missouri court’s construction of that
State’s statutes.”); Brown v. Ohio, 432 U.S. 161, 167, 97 S.
Ct. 2221, 2226 (1977) (“We are mindful that the Ohio courts
‘have the final authority to interpret . . . that State’s legisla-
tion.’ ”) (quoting Garner v. Louisiana, 368 U.S. 157, 169, 82
S. Ct. 248, 254 (1961)); see Lechner, 341 F.3d at 641-42; see
also, e.g., Rhode v. Olk-Long, 84 F.3d 284, 289-90 (8th Cir.
1996); Smallwood v. Johnson, 73 F.3d 1343, 1350 (5th Cir.
1996); Birr v. Shillinger, 894 F.2d 1160, 1161-62 (10th Cir.
1990) (per curiam); Banner v. Davis, 886 F.2d 777, 780 (6th
Cir. 1989); Tarpley v. Dugger, 841 F.2d 359, 364 (11th Cir.
1988); Brimmage v. Sumner, 793 F.2d 1014, 1015-16 (9th Cir.
1986) (Kennedy, J.); Sanderson, 777 F.2d at 904-05.
The state court’s use of the Supreme Court’s Blockburger
test does not give us a toehold into its examination of
legislative intent. See 28 U.S.C. § 2254(d)(1) (federal court
may grant habeas corpus petition where state court’s adju-
dication of claim “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly es-
tablished Federal law, as determined by the Supreme Court
of the United States”). Although the Blockburger test has
“deep historical roots” in the Supreme Court’s double jeop-
ardy precedents, United States v. Dixon, 509 U.S. 688, 704,
113 S. Ct. 2849, 2860 (1993), and both federal and state courts
use the test to determine whether two offenses are the “same”
for purposes of the double jeopardy analysis, it is not a con-
stitutional test in and of itself. Rather, it is simply a means
No. 04-2561 11
of evaluating legislative intent. Albernaz v. United States,
450 U.S. 333, 340, 101 S. Ct. 1137, 1143 (1981); Whalen v.
United States, 445 U.S. 684, 691, 100 S. Ct. 1432, 1437
(1980). For that matter, Blockburger only represents the
starting point in this inquiry: when application of the
Blockburger test reveals that two offenses are essentially
the same, a presumption arises that the legislature did not
intend for them to be punished cumulatively, see Rutledge,
517 U.S. at 297, 116 S. Ct. at 1245; United States v. McCarter,
supra, 2005 WL 1022993, at *2; Davison, 666 N.W.2d at 13;
when the test yields the opposite result, a contrary pre-
sumption arises, see Albernaz, 450 U.S. at 340, 101 S. Ct. at
1143; Davison, 666 N.W.2d at 13. Ultimately, either
presumption can be overcome with evidence of legislative
intent that Blockburger’s “same elements” test does not
take into account. See Johnson, 467 U.S. at 499 n.8, 104
S. Ct. at 2541 n.8 (“As should be evident from our decision
in Missouri v. Hunter, . . . the Blockburger test does not
necessarily control the inquiry into the intent of a state
legislature.”); Hunter, 459 U.S. at 366-69, 103 S. Ct. at 678-
79; Davison, 666 N.W.2d at 13; see also McCarter, 2005 WL
1022993, at *3 (“legislative history which clearly indicates
an intention regarding whether to permit multiple punish-
ments is entitled to weight”). Thus, rather than suggesting
that the Wisconsin court was engaging in a constitutional
analysis when it employed the Blockburger test, the use of
that test simply confirms that the court was assessing
legislative intent and thus deciding a question of state law.
True enough, the test is a federally-derived analytical tool;
but that fact does not give a federal habeas court the
authority to police a state court’s evaluation of a state
legislature’s intent.
Whether the Wisconsin Court of Appeals correctly gauged
the Wisconsin legislature’s intent is thus beyond our pur-
view as an interpretation of state law. See Lechner, 341
12 No. 04-2561
F.3d at 641-42; Banner, 886 F.2d at 780.4 And it is disposi-
tive of the narrow constitutional question over which we do
have jurisdiction. As we noted earlier, in the multiple
punishments context, the Double Jeopardy Clause serves
only to ensure that the judiciary has exercised its sentencing
authority in accord with the legislature’s intent. Hunter, 459
U.S. at 366, 103 S. Ct. at 678. Because, as the state court
determined, the Wisconsin legislature authorized multiple
punishments for the two offenses on which McCloud was
sentenced to consecutive sentences, there was no double
jeopardy violation. Id. at 368-69, 103 S. Ct. at 679. We
might have a different case if the Wisconsin court had said
that legislative intent is irrelevant to the double jeopardy
analysis, or that although the Wisconsin legislature clearly
had not intended for the two crimes to be punished cumu-
latively, the consecutive sentences imposed on McCloud
were nonetheless acceptable despite the Double Jeopardy
Clause. Such notions, which implicate federal constitutional
principles as opposed to the intent of the state legislators
who enacted state law, would be within our power to address
in a habeas proceeding. Cf. Johnson, 467 U.S. at 499-500,
104 S. Ct. at 2541 (although U.S. Supreme Court accepted
state court’s conclusion that state legislature did not au-
thorize cumulative punishment for two sets of crimes at
issue, it rejected state court’s conclusion that defendant’s
4
McCloud does not separately argue that the Wisconsin Court of
Appeals’ construction of state law results in some fundamental
unfairness that might be cognizable in habeas corpus, see Lechner,
341 F.3d at 642, and no such unfairness is obvious to us. The state
court’s conclusion that the two offenses are distinct—i.e., that it
is possible to rob someone of his car without driving it, and that it
is also possible to operate a vehicle without permission while not
committing robbery, strikes us as plausible. Moreover, McCloud,
by the admission of his own attorney, cannot identify any Wiscon-
sin case law that is contrary to the Court of Appeals’ decision in
this case.
No. 04-2561 13
guilty plea on lesser charges precluded State from proceed-
ing to trial on remaining charges, distinguishing between
prosecuting a defendant for multiple offenses in a single
proceeding and punishing a defendant for those offenses).
But, of course, the Wisconsin Court of Appeals said nothing
at all like that. The court recognized that the federal
constitutional question turned on the legislature’s intent, it
conducted an appropriate inquiry into that intent, and
concluded that the legislature had authorized multiple
punishments for robbery and operating a vehicle without
the owner’s consent. That answer closes the door on
McCloud’s double jeopardy claim.
III.
For the defendant who receives multiple punishments in
a single proceeding, the Double Jeopardy Clause serves only
to ensure that the legislature authorized cumulative
punishments; it does not preclude such punishments. The
Wisconsin Court of Appeals has considered whether the
Wisconsin legislature intended to permit multiple punish-
ments as to the crimes for which McCloud was sentenced to
consecutive terms: on examining the elements of the two
statutes in question, the court concluded that they were dis-
tinct offenses for which the state legislature had authorized
multiple punishments. The cumulative punishments
imposed on McCloud therefore were consistent with the legi-
slature’s intent and did not run afoul of the Double Jeop-
ardy Clause. Although McCloud maintains that the state
court erred in concluding that the two offenses were not the
same, that conclusion is solely one of state law, and we have
no power to review that conclusion. The decision of the
district court to deny McCloud’s petition for a writ of habeas
corpus is therefore AFFIRMED.
14 No. 04-2561
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-2-05