Anthony Merrick v. Charles Ryan

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2023
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
ANTHONY JAMES MERRICK, No. 19-17247
Petitioner-Appellant, D.C. No. 2:19-cv-00172-SPL
v.
MEMORANDUM*
CHARLES RYAN, et al.,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding
Argued and Submitted November 18, 2022
Phoenix, Arizona
Before: BYBEE, OWENS, and COLLINS, Circuit Judges.
Anthony Merrick appeals the district court’s dismissal of his petition for a
writ of habeas corpus challenging, on Double Jeopardy grounds, his convictions
for certain offenses in Arizona state court. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
An Arizona jury convicted Merrick of 11 offenses, including one count of
fraud in violation of Arizona Revised Statutes § 13-2310 (Count 1); one count of
theft of property with a value of at least $4,000 in violation of Arizona Revised
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
Statutes § 13-1802 (Count 2); and nine counts of credit-card theft in violation of
Arizona Revised Statutes § 13-2102 (Counts 6, 8–11, 14–15, and 23–24). The
factual basis for all 11 of Merrick’s convictions was his unlawful receipt and
retention of 29 gift cards, each valued at $500. See ARIZ. REV. STAT. § 13-
2101(3)(c) (providing that, for purposes of § 13-2102, “[c]redit card” includes a
“stored value card”). The nine credit-card theft charges under § 13-2102 were
based on the allegation that, without the consent of the issuers, Merrick
“knowingly controlled” one or more of eight specific gift cards on various dates.
Counts 1 and 2 were based on Merrick’s unlawful receipt and retention of the 29
gift cards generally. Specifically, the fraud charge in Count 1 alleged that, through
fraud, Merrick “knowingly obtained a benefit” from the issuers, and the theft
charge in Count 2 alleged that, “without lawful authority,” Merrick “knowingly
controlled” gift cards worth $4,000 or more. At trial, the state argued that
Merrick’s theft charge involved more than $4,000, because “we have 29 gift cards”
and “$500 each equals $14,500.” Merrick was given concurrent sentences on all
counts.
On appeal, Merrick argued, inter alia, that (1) his theft charge in Count 2
was multiplicitous of his nine credit-card theft convictions, in violation of the
Double Jeopardy Clause; and (2) some of the nine credit-card theft convictions
were multiplicitous of one another to the extent that they relied on the same gift
2
card. The Arizona Court of Appeals partly agreed with the second argument and
vacated Merrick’s convictions on Counts 9, 10, 11, and 15. See State v. Merrick,
2012 WL 4955425, at *2–3 (Ariz. Ct. App. Oct. 18, 2012). The court’s opinion
did not address Merrick’s other Double Jeopardy argument concerning Count 2,
but it expressly affirmed Merrick’s convictions on “Counts 1, 2, 6, 8, 14, 23 and
24.” Id. at *4. Merrick unsuccessfully sought review of the Count 2 Double
Jeopardy issue in the Arizona Supreme Court. After the district court denied
habeas relief, we granted a certificate of appealability limited to the Count 2
Double Jeopardy issue.
As an initial matter, we reject Merrick’s argument that the deferential
standards of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2254(d), do not apply to Merrick’s Count 2 Double Jeopardy claim.
“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the
contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). This same presumption
applies when—as here—“a state-court opinion addresses some but not all of a
defendant’s claims.” Johnson v. Williams, 568 U.S. 289, 298 (2013). Merrick has
provided no basis for concluding that this presumption has been rebutted, and we
therefore treat the Arizona Court of Appeals’ decision as having rejected the
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Count 2 Double Jeopardy claim on the merits. Accordingly, under AEDPA, a
federal court may not grant habeas relief based on that claim unless the state
court’s decision (1) “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States” or (2) “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
In applying these standards to a state court decision that did not explain why it
rejected this claim, we “must determine what arguments or theories . . . could have
supported[] the state court’s decision” and then “ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent
with the holding in a prior decision” of the U.S. Supreme Court. Richter, 562 U.S.
at 102 (emphasis added).
Applying these standards, we conclude that fairminded jurists could
reasonably reject Merrick’s Count 2 Double Jeopardy argument. In addressing this
issue, we assume arguendo that Merrick is correct in contending that the elements
of a theft charge under § 13-1802 overlap with the elements of a credit-card theft
charge under § 13-2102, such that the two statutes do not define separate offenses
under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932). But
just as two bank robberies may be charged under the same statute when a
defendant separately robs two banks, so too separate theft and credit-card theft
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charges may be brought based on the defendant’s theft of distinct underlying gift
cards. See, e.g., United States v. Chilaca, 909 F.3d 289, 291 (9th Cir. 2018)
(noting that the inquiry turns on “the allowable unit of prosecution” under the
charged statute (citations and internal quotation marks omitted)). On this record, a
reasonable jurist could reach such a conclusion here.
As the case was charged in the indictment and presented at trial, only a total
of eight specific gift cards were at issue in the various credit-card theft counts. To
sustain the charge of theft involving at least $4,000 under Count 2, only eight of
the 29 cards at issue in that count were necessary, because each card was worth
$500. Accordingly, Merrick’s conviction on Count 2 would not be multiplicitous
to the extent that it rested on eight of the 21 cards that were not at issue in the
credit-card theft counts. Given that the state’s theory and evidence at trial were
that Count 2 was based on Merrick’s possession of all 29 gift cards, the Arizona
Court of Appeals could reasonably have concluded that, in convicting on Count 2,
the jury should be understood to have accepted the state’s undifferentiated reliance
on all 29 cards. That would mean that the jury concluded that Merrick unlawfully
possessed all 29 cards, including the 21 cards that were not at issue in the credit-
card theft counts. And since only eight cards were necessary to sustain the charge
on Count 2, the Arizona Court of Appeals could reasonably have concluded that
Count 2 was more than amply supported by non-overlapping cards and that there
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was therefore no Double Jeopardy violation. See Merrick, 2012 WL 4955425, at
*3 (similarly rejecting Merrick’s Double Jeopardy challenge to Counts 23 and 24,
despite the fact that one of the five cards charged in Count 24 overlapped with the
single card charged in Count 23).
For substantially the same reasons, we further conclude that Merrick has not
shown a federal law error that “resulted in actual prejudice.” Davis v. Ayala, 576
U.S. 257, 267 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).1
AFFIRMED.
1
We decline to expand the certificate of appealability to include the additional
uncertified issues raised by Merrick in his supplemental pro se opening brief. See
NINTH CIR. R. 22-1(e).
6