Writ of Habeas Corpus – Double Jeopardy

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Criminal

7^th Circuit Court of Appeals

Officials: POSNER and KANNE, Circuit Judges, and DARRAH, District Judge

Writ of Habeas Corpus – Double Jeopardy

No. 14-2809 Demetrius M. Boyd v. Gary A. Boughton

Petition for writ of habeas corpus denied, appellant double jeopardy argument falls short.

“In a footnote in his reply brief, Boyd himself concedes that Dixon does not create any clearly established federal law on this issue.6 He argues instead that the law he relies upon is established not by Dixon but by other Supreme Court jurisprudence. His formulation of the clearly established federal law is “that it violates double jeopardy to punish an individual twice for the same offense without the legislature’s express approval.” Boyd may be correct in his general statement of the law. But that statement alone does not answer the critical question—what constitutes the same offense for the purposes of the Double Jeopardy Clause? The lesser-included-offense issue was the critical question in Boyd’s case—it was outcome determinative, and it is the very issue he appeals here. Dixon provides the Supreme Court’s last word on it, so Boyd cannot avoid it. In fact, while attempting to distance himself from Dixon, Boyd simultaneously asks us to adopt the “incorporation” approach laid out in Justice Scalia’s Dixon concurrence. Boyd’s own request demonstrates that his path to proving a double-jeopardy violation must pass through Dixon”

Affirmed

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