Jones v. Sussex I State Prison

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ORLANDO BRAD JONES, 

Petitioner-Appellant,

v.  No. 07-6705

SUSSEX I STATE PRISON,

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, Senior District Judge.

(3:04-cv-00183-REP)

Argued: December 2, 2009

Decided: January 15, 2010

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opin-

ion, in which Judge Michael and Judge King joined.

COUNSEL

ARGUED: John Granville Douglass, UNIVERSITY OF

RICHMOND, School of Law, Richmond, Virginia, for

Appellant. Steven Andrew Witmer, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-

ginia, for Appellee. ON BRIEF: William C. Mims, Attorney

2 JONES v. SUSSEX I STATE PRISON

General, Karen Misbach, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Orlando Brad Jones petitions for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (2006), alleging that the Com-

monwealth of Virginia violated his Fifth Amendment rights

by punishing him twice for the same offense. The deferential

review of state court judgments mandated by the Antiterro-

rism and Effective Death Penalty Act ("AEDPA") requires us

to affirm the district court’s denial of habeas relief.

I.

To better understand this case’s procedural history and the

parties’ arguments, we must briefly set forth the nature of

Jones’s atypical constitutional claim. He contends that the

Commonwealth violated his rights under the Double Jeopardy

Clause of the Fifth Amendment not by subjecting him to mul-

tiple prosecutions for the same offense but by subjecting him

to "multiple punishments for the same offense." See North

Carolina v. Pearce, 395 U.S. 711, 717 (1969) (emphasis

added).

When the government convicts a defendant for two crimes

based on identical conduct, the Fifth Amendment requires that

the sentencing court "determine whether the legislature . . .

intended that each violation be a separate offense." Garrett v.

United States, 471 U.S. 773, 778 (1985). If the legislature did

intend each violation to be a separate offense, then the Double

Jeopardy Clause provides no protection against multiple pun-

ishments. But if the legislature did not intend to punish the

JONES v. SUSSEX I STATE PRISON 3

same conduct twice, the Double Jeopardy Clause bars two or

more punishments for the same offense, and thus "prevent[s]

the sentencing court from prescribing greater punishment than

the legislature intended." Missouri v. Hunter, 459 U.S. 359,

366 (1983).

"When the claim is made in relation to state offenses, fed-

eral courts are essentially bound by state court interpretations

of state legislative intent on this score." Thomas v. Warden,

683 F.2d 83, 85 (4th Cir. 1982). That is because, when the

charged offenses violate state law, the double jeopardy analy-

sis hinges entirely on the state-law question of what quantum

of punishment the state legislature intended. See Sanderson v.

Rice, 777 F.2d 902, 904 (4th Cir. 1985) ("The Supreme Court

has placed the state legislative definition of the crime at the

heart of double jeopardy analysis."). Once a state court has

answered that state-law question, "[t]here is no separate fed-

eral constitutional standard requiring that certain actions be

defined as single or as multiple crimes." Id.

In Brown v. Commonwealth, 337 S.E.2d 711 (Va. 1985), a

double jeopardy case, the Supreme Court of Virginia consid-

ered the intent of the Virginia General Assembly when a

defendant is "accused of abduction by detention and another

crime involving restraint of the victim, both growing out of a

continuing course of conduct." Id. at 713. The Brown court

held that the General Assembly intended to subject such a

defendant to "separate penalties for separate offenses only

when the detention committed in the act of abduction is sepa-

rate and apart from, and not merely incidental to, the restraint

employed in the commission of the other crime." Id. at 713-

14. This rule has since come to be known as the "incidental

detention doctrine." See, e.g., Walker v. Commonwealth, 636

S.E.2d 476, 478 (Va. 2006).

With this understanding of the double jeopardy and state

law principles at issue in this case, we turn to the facts.

4 JONES v. SUSSEX I STATE PRISON

II.

On December 12, 2001, Jones donned a mask and, together

with his cousin, robbed at gunpoint a McDonald’s restaurant

in Hampton, Virginia. The Commonwealth charged Jones

with robbery, Va. Code Ann. § 18.2-58 (2009); abduction, id.

§ 18.2-48; wearing a mask in public, id. § 18.2-422; and two

counts of using a firearm while committing a felony, id.

§ 18.2-53.1, one each for the robbery and abduction. The

abduction-related charges stemmed from evidence that during

the robbery—which lasted just ninety seconds—Jones

directed McDonald’s floor supervisor Anthony Williams to

travel about twenty feet from the front cash register to the

back cash register to retrieve money stored there. Jones pled

not guilty to all five charges.

At the conclusion of the Commonwealth’s case, defense

counsel moved to dismiss the two abduction charges on the

ground that "the abduction must be separate and apart from

and not merely incidental to the restraint employed in the

commission of the [robbery]." The trial court denied the

motion on the merits, finding that two distinct robberies had

taken place, one for each cash register. The trial court rea-

soned that, because the Commonwealth charged Jones only

with the first robbery, and the abduction charge was incidental

only to the second robbery, the Commonwealth did not vio-

late double jeopardy principles because the abduction was not

incidental to the charged robbery.

On September 24, 2002, the jury convicted Jones on all

counts. The trial judge, following the jury’s recommendation,

sentenced Jones to thirty-four years in prison: five years for

the robbery, three for using a firearm during the robbery, one

for wearing a mask in public, twenty for the abduction, and

five for using a firearm during the abduction. Thus, the

abduction-related convictions accounted for twenty-five years

of Jones’s thirty-four year sentence.

JONES v. SUSSEX I STATE PRISON 5

Jones timely filed petitions for appeal, first in the Court of

Appeals of Virginia and then in the Supreme Court of Vir-

ginia. In his supporting (identical) briefs to each court, Jones

asserted the following as an assignment of error:

The Trial Court erred in concluding that the abduc-

tion (and related firearm charge) could be sustained

without a scintilla of evidence in the record to show

intimidation or force in the movement of the victim

from one cash register to the other cash register in

the course of this robbery.

In the argument sections for this claim, Jones cited to Brown

and described the claim in terms very similar to those used in

that case: "The alleged abduction is not the type of case that

the legislature envisioned as a separate offense from a crime

such as this robbery, for it is intrinsic in the very act of this

robbery." Compare Brown, 337 S.E.2d at 713 ("[I]n the enact-

ment of the abduction statute the General Assembly did not

intend to make the kind of restraint which is an intrinsic ele-

ment of . . . robbery . . . a criminal act, punishable as a sepa-

rate offense."). Jones did not explicitly refer to the Double

Jeopardy Clause or the Constitution of the United States.

On July 16, 2003, the Court of Appeals of Virginia denied

Jones’s appeal without mentioning double jeopardy, the Con-

stitution, or Brown. Instead, the court focused on the suffi-

ciency of the evidence supporting the abduction charges. On

December 2, 2003, the Supreme Court of Virginia summarily

denied Jones’s petition for appeal.

Jones, now proceeding pro se, filed with the state Supreme

Court a petition for state habeas relief. This time, he explicitly

alleged that his "conviction is in contravention of the Double

Jeopardy Clause in the Fifth Amendment to the Constitution

of the United States." The court denied Jones’s state habeas

petition, finding his double jeopardy claim procedurally

barred under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va.

6 JONES v. SUSSEX I STATE PRISON

1974), because Jones could have raised his double jeopardy

claim on direct appeal, but assertedly did not do so.

On March 19, 2004, Jones—still pro se—timely filed this

§ 2254 petition in the United States District Court for the

Eastern District of Virginia, raising several grounds for relief.

The district court granted the Commonwealth’s motion to dis-

miss all but Jones’s double jeopardy claim, and appointed

counsel to represent Jones in the proceedings. In its subse-

quent briefing as to that claim, the Commonwealth argued

that the claim was (1) procedurally defaulted because it was

not properly presented to and thus exhausted before the state

courts; (2) not cognizable on federal habeas because it

involved only a state-law question of "state legislative intent";

and in any event (3) meritless under Virginia’s incidental

detention doctrine. Although the Commonwealth did not cite

to the deferential AEDPA standard of review in its brief to the

district court, it drew upon that standard, arguing that, should

the district court reach the merits of Jones’s claim, "Jones

would bear the burden of showing not merely that the state

court’s application of law was wrong, but that it was unrea-

sonably wrong."

On March 30, 2007, the district court denied Jones’s peti-

tion. The court refused to find Jones’s double jeopardy claim

procedurally barred, but held that punishing Jones for both

robbery and abduction did not violate double jeopardy under

Virginia’s incidental detention doctrine. The court did not

mention the AEDPA standard of review.

The district court subsequently granted Jones a certificate

of appealability as to this issue, and Jones timely noted this

appeal. We review a district court’s denial of a § 2254 habeas

petition "de novo, applying the same standard that the district

court was required to apply." Longworth v. Ozmint, 377 F.3d

437, 443 (4th Cir. 2004). In opposing Jones’s petition, the

JONES v. SUSSEX I STATE PRISON 7

Commonwealth presents three arguments—exhaustion, proce-

dural default, and the merits—which we address in turn.1

III.

The Commonwealth initially maintains that Jones failed to

present (and so exhaust) his double jeopardy claim to the state

appellate courts on direct appeal. The Commonwealth argues

that Jones did not "exhaust[ ] the remedies available in the

courts of the State," 28 U.S.C. § 2254(b)(1)(A), because he

neglected to expressly invoke the Double Jeopardy Clause

before the Virginia appellate courts, and instead litigated only

"a state law claim concerning the sufficiency of the evidence

of the abduction and firearm counts." Resp. Br. 13. This argu-

ment fails.

Of course, it is true that "[b]efore seeking a federal writ of

habeas corpus, a state prisoner must exhaust available state

remedies, thereby giving the State the opportunity to pass

upon and correct alleged violations of its prisoners’ federal

rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citation

and internal quotation marks omitted); see also Breard v. Pru-

ett, 134 F.3d 615, 619 (4th Cir. 1998). To provide the state

with this opportunity, "the prisoner must ‘fairly present’ his

claim in each appropriate state court . . . , thereby alerting that

court to the federal nature of the claim." Reese, 541 U.S. at

29; see also Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.

1997). The habeas petitioner must raise his claim before every

available state court, including those courts—like the

Supreme Court of Virginia—whose review is discretionary.

O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999).

Moreover, the burden of demonstrating fair presentment

1

On federal habeas as elsewhere, procedural questions "should ordinar-

ily be considered first," before on-the-merits review. See Lambrix v.

Singletary, 520 U.S. 518, 524 (1997); Coleman v. Thompson, 501 U.S.

722, 730-31 (1991).

8 JONES v. SUSSEX I STATE PRISON

lies with the habeas petitioner, who must "do more than scat-

ter some makeshift needles in the haystack of the state court

record." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994)

(internal quotation marks omitted). However, "it is not neces-

sary to cite book and verse on the federal constitution so long

as the constitutional substance of the claim is evident," West

v. Wright, 931 F.2d 262, 266 (4th Cir. 1991) (internal quota-

tion marks omitted), rev’d on other grounds, 505 U.S. 277

(1992), such that "both the operative facts and the controlling

legal principles [are] presented to the state court." Baker v.

Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (internal quota-

tion marks omitted).

Thus the Supreme Court has held that a "litigant wishing to

raise a federal issue can easily indicate the federal law basis

for his claim in a state-court petition or brief, for example, by

citing in conjunction with the claim . . . a case deciding such

a claim on federal grounds." Reese, 541 U.S. at 32 (emphasis

added). The Court drew no distinction between citation to a

state—as opposed to a federal—case, so long as the cited case

rested its holding on federal law. Id.; see Peterson v. Lampert,

319 F.3d 1153, 1158 (9th Cir. 2003) (en banc) ("[F]or pur-

poses of exhaustion, a citation to a state case analyzing a fed-

eral constitutional issue serves the same purpose as a citation

to a federal case analyzing such an issue."). Accordingly, our

sister circuits have uniformly concluded that citation to such

a state case, as a general matter, provides fair presentment of

a federal constitutional claim. See, e.g., Jackson v. Edwards,

404 F.3d 612, 618 (2d Cir. 2005); Peterson, 319 F.3d at 1158;

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999);

Barrett v. Acevedo, 169 F.3d 1155, 1161-62 (8th Cir. 1999);

Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995);

Scarpa v. Dubois, 38 F.3d 1, 6-7 (1st Cir. 1994). See also

Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001)

(finding that petitioner’s citation to a state case "alerted the

state court to his Sixth Amendment claim" and thus fairly

presented the claim).

JONES v. SUSSEX I STATE PRISON 9

For example, in Daye v. Attorney General of New York,

696 F.2d 186 (2d Cir. 1982) (en banc), a nearly unanimous en

banc Second Circuit held that the petitioner had exhausted his

claim when he cited to "two state cases in which [the state’s]

highest court had analyzed similar contentions in [federal]

constitutional terms" and where his claim was "within the

ambit of a long line of cases" establishing this constitutional

right. Id. at 195. The Daye court explained: "[I]f the courts of

the state in question have themselves previously treated that

fact pattern as appropriate for constitutional analysis, it would

be unreasonable to suppose that they are not alert to constitu-

tional considerations." Id. at 194; see also Ellsworth, 248 F.3d

at 639.

Here, as in Daye and Ellsworth, Jones cited to a state case

—Brown v. Commonwealth—that deals exclusively with fed-

eral double jeopardy law, and the Supreme Court of Virginia

has since expressly recognized that its "ruling in Brown

regarding incidental detention only applies when . . . the guar-

antee of double jeopardy may be implicated." Walker, 636

S.E.2d at 479 (emphasis added). Jones also alerted the state

courts to the federal nature of his claim when he used clear

double jeopardy language, inspired by Brown, in his briefs.

Further, Jones presented a fact pattern—multiple punishments

for abduction and a closely related crime—that Virginia

courts have regularly considered appropriate for double jeop-

ardy analysis. See, e.g., Brown, 337 S.E.2d 711; Jerman v.

Dir., Dep’t of Corr., 593 S.E.2d 255, 259-60 (Va. 2004);

Powell v. Commonwealth, 552 S.E.2d 344, 360-61 (Va.

2001).

Finally, the Commonwealth itself recognized and addressed

the double jeopardy issue in its opposing brief before the state

Supreme Court, evidencing Jones’s fair presentment of that

claim. See Smith v. Digmon, 434 U.S. 332, 333 (1978) (per

curiam) (finding that state’s opposition in its brief to petition-

er’s constitutional claim in state court supported conclusion

that petitioner had fairly presented that claim); Daye, 696

10 JONES v. SUSSEX I STATE PRISON

F.2d at 192 n.5 ("Even if not alerted by the defendant, the

state court might be alerted by the briefs filed by the state in

opposition.").2

In an attempt to circumvent this more than ample authority

supporting Jones’s contention that citation to Brown fairly

presented his double jeopardy claim, the Commonwealth

offers a technical argument. Virginia contends that Jones’s

failure to include Brown or double jeopardy language specifi-

cally in his assignments of error on direct appeal—despite his

clear focus on Brown in the argument sections of his appellate

briefs -– precludes us from holding that he fairly presented

that claim. The Commonwealth directs our attention to the

Rules of the Supreme Court of Virginia, which provide that

"[o]nly errors assigned in the petition for appeal will be

noticed by this Court." Va. Sup. Ct. R. 5:17(c). However, the

Commonwealth cites no authority for the proposition that a

petitioner exhausts for federal habeas purposes only "as-

signed" errors. In fact, as the district court noted, although we

of course defer to appropriate state procedural rules in deter-

mining if a petitioner has exhausted a claim, we have previ-

ously disregarded a Virginia defendant’s failure to identify a

claim in his assignments of error, finding the claim fairly

presented by the argument section of his brief. Compare Kasi

v. Angelone, 300 F.3d 487, 508-09 (4th Cir. 2002) with Pet’r

2

This case is, therefore, a far cry from instances in which the Supreme

Court or this court has found that the petitioner failed to fairly present his

federal claim to the state courts. Compare Reese, 541 U.S. at 33 ("The

petition provides no citation of any case that might have alerted the court

to the alleged federal nature of the claim."); Duncan v. Henry, 513 U.S.

364, 366 (1995) (per curiam) (finding failure to exhaust where petitioner

presented only state-law claims); Anderson v. Harless, 459 U.S. 4, 7

(1982) (per curiam) (finding failure to exhaust where petitioner cited only

to a state case that adjudicated only state law); Baker, 220 F.3d at 289

(finding failure to exhaust where petitioner asserted in state court that an

erroneous jury instruction had "no basis in Maryland law," and did not

refer to federal law at all, even through state case citations); Mallory, 27

F.3d at 995 (finding no exhaustion where petitioner "never specified as

grounds for relief" his ineffective assistance claim).

JONES v. SUSSEX I STATE PRISON 11

Br. in Kasi v. Commonwealth, 508 S.E.2d 57 (Va. 1998),

available at 1998 WL 34375490, at *vii, *xi, *44 (stating in

assignment of error only that trial court erred in conducting

voir dire, with no reference to federal law).

Moreover, even assuming that a petitioner only exhausts

"assigned" errors, Jones’s assignment of a sufficiency of evi-

dence error fairly presented his double jeopardy claim. This

is so because the Supreme Court of Virginia has regularly

treated sufficiency of the evidence and double jeopardy inter-

changeably in this context. See Powell, 552 S.E.2d at 360-61

(analyzing Brown claim under the heading, "Sufficiency of

the Evidence"); Jerman, 593 S.E.2d at 259-60 (finding that

"the evidence was sufficient" for an abduction conviction

because the abduction evidence was separate from the evi-

dence supporting defendant’s assault conviction). When a

state’s highest court has previously considered two iterations

of a federal constitutional claim interchangeably, a habeas

petitioner’s invocation of either fairly presents that claim. We

decline to punish Jones for following the state Supreme

Court’s lead.

This is one of those "instances in which the ultimate ques-

tion for disposition, will be the same despite variations in the

legal theory or factual allegations urged in its support."

Picard v. Connor, 404 U.S. 270, 277 (1971) (citation and

internal quotation marks omitted). Even the Commonwealth

inadvertently concedes as much. See Resp. Br. 7 ("[I]f the evi-

dence was sufficient to support both the abduction charge and

the robbery charge, then there was not a single offense and his

convictions do not violate the Double Jeopardy Clause.").

For these reasons, we must reject the Commonwealth’s

contention that Jones failed to exhaust his double jeopardy

claim. As the district court held, he has done so and thus com-

plied with 28 U.S.C. § 2254(b)(1)(A).

12 JONES v. SUSSEX I STATE PRISON

IV.

Even if Jones properly exhausted his double jeopardy

claim, the Commonwealth argues that he procedurally

defaulted the claim, thereby foreclosing federal habeas

review. The Commonwealth points to the Supreme Court of

Virginia’s state habeas opinion, in which that court, invoking

Slayton v. Parrigan, concluded that Jones had not raised his

double jeopardy claim on direct appeal. Slayton holds that a

state prisoner may not obtain state habeas relief by raising a

non-jurisdictional claim of error in state habeas proceedings

that he could have but did not raise at trial and on direct

appeal. 205 S.E.2d at 682 ("A petition for a writ of habeas

corpus may not be employed as a substitute for an appeal or

a writ of error."). Jones contends that Slayton, as applied in

this context, is not adequate to bar federal habeas review

because Virginia courts do not apply Slayton "‘consistently to

cases that are procedurally analogous’" to Jones’s case. Pet’r

Reply Br. 10 (quoting Brown v. Lee, 319 F.3d 162, 169 (4th

Cir. 2003)).3

"If a state court clearly and expressly bases its dismissal of

a habeas petitioner’s claim on a state procedural rule, and that

procedural rule provides an independent and adequate ground

for the dismissal, the habeas petitioner has procedurally

defaulted his federal habeas claim." Breard, 134 F.3d at 619

(citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).

"A state rule is ‘adequate’ if it is firmly established and regu-

3

We recognize that the conclusion of the Supreme Court of Virginia on

state habeas that Jones did not raise a Brown claim on direct appeal lies

in some tension with our holding above that Jones did fairly present that

claim, for federal habeas purposes, to the state courts. Even so, we must

defer to the state court’s application of Slayton to bar Jones’s claim on

state habeas. We do, however, retain the obligation to assess the adequacy

of the Slayton rule for federal habeas purposes. See Brown v. Lee, 319

F.3d at 169 ("The assessment of whether a particular state procedure is

‘independent and adequate,’ so as to bar consideration of the merits of a

federal constitutional claim, is a question of federal, not state, law.").

JONES v. SUSSEX I STATE PRISON 13

larly or consistently applied by the state court . . . ." Brown

v. Lee, 319 F.3d at 169 (citing Johnson v. Mississippi, 486

U.S. 578, 587 (1988)). In making this adequacy determina-

tion, we ask "whether the particular procedural bar is applied

consistently to cases that are procedurally analogous—here,

cases in which the particular claim raised could have been

raised previously but was not." McCarver v. Lee, 221 F.3d

583, 589 (4th Cir. 2000).

Because procedural default constitutes an affirmative

defense in habeas cases, the burden rests with a state to prove

the adequacy of the relied-on procedural bar. See Yeatts v.

Angelone, 166 F.3d 255, 261 (4th Cir. 1999) ("[T]he issue of

procedural default generally is an affirmative defense that the

state must plead in order to press the defense thereafter."); see

also Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (plac-

ing the burden on the state to show adequacy); Pike v.

Guarino, 492 F.3d 61, 73 (1st Cir. 2007) ("The habeas

respondent (here, the Commonwealth) bears the burden ‘not

only of asserting that a default occurred, but also of persuad-

ing the court that the factual and legal prerequisites of a

default . . . are present.’" (alteration in original) (quoting 2

Randy Hertz & James S. Liebman, Federal Habeas Corpus

Practice and Procedure § 26.2a, at 1265 n.5 (5th ed. 2005))).

We have held on several occasions that the Slayton rule

generally provides an adequate bar to federal habeas review.

See, e.g., Wright v. Angelone, 151 F.3d 151, 159-60 (4th Cir.

1998).4 However, "the fact that a state procedural rule is ade-

quate in general does not answer the question of whether the

rule is adequate as applied in a particular case." Reid v. True,

349 F.3d 788, 805 (4th Cir. 2003). Here, the Commonwealth

does not cite any case in which Virginia courts have applied

4

Jones does not assert that Slayton is "discretionary" and thus inade-

quate as a matter of law to bar federal habeas review; the Supreme Court

recently rejected this contention. See Beard v. Kindler, __ S. Ct. __, __,

2009 WL 4573277, at *5 (2009).

14 JONES v. SUSSEX I STATE PRISON

Slayton to bar a double jeopardy claim on collateral review

because the Double Jeopardy Clause was not specifically

mentioned as a ground for reversal on direct appeal.

In fact, as the district court correctly observed, the Supreme

Court of Virginia "has indulged a more lenient pleading stan-

dard where the alleged error pertains to the incidental deten-

tion doctrine." In at least two cases, the state Supreme Court

on direct appeal—despite the defendant’s failure to explicitly

mention double jeopardy, federal law, or even Brown in his

assignments of error—ruled on the merits of the defendant’s

Brown claim. See Powell, 552 S.E.2d at 360-61 (addressing

claim on the merits when assignment of error stated only that

"[t]he trial court erred in denying defendant’s motion to strike

the Commonwealth’s evidence of guilt"); Cardwell v. Com-

monwealth, 450 S.E.2d 146, 152-53 (Va. 1994) (addressing

claim on the merits when assignment of error stated only that

"[t]he trial court erred in not striking the Commonwealth’s

evidence of capital murder committed during the course of an

abduction, the abduction itself and the firearm charge related

thereto").

These cases provide strong evidence that Virginia courts do

not "regularly or consistently" require defendants, in order to

receive on-the-merits review of Brown claims, to refer to the

Constitution of the United States or other federal law. In the

absence of any showing of consistency by the Common-

wealth, these cases demonstrate Slayton’s inadequacy in this

context. Because the Commonwealth has not met its burden,

we cannot find Jones’s double jeopardy claim procedurally

defaulted.

V.

The Commonwealth next argues that Jones cannot obtain

habeas relief on his double jeopardy claim under either

AEDPA or the common-law principles that predate that stat-

ute.

JONES v. SUSSEX I STATE PRISON 15

AEDPA provides as follows:

An application for a writ of habeas corpus . . . shall

not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States . . . .

28 U.S.C. § 2254(d).5 Therefore, if Virginia adjudicated

Jones’s double jeopardy claim, we cannot grant habeas relief

unless the state court decision "was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by" Supreme Court precedent. Id.

Jones conceded in his brief and again at oral argument (and

the Commonwealth agrees) that the Virginia trial court adju-

dicated his double jeopardy claim on the merits. Some of our

sister circuits have found trial-court adjudication sufficient to

trigger the deferential review set forth in AEDPA. See, e.g.,

Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009) ("[A]n

‘adjudication on the merits’ can occur at any level of state

court."); Salazar v. Dretke, 419 F.3d 384, 397-98 (5th Cir.

2005). We need not reach that question because in this case

the Virginia appellate courts also adjudicated Jones’s consti-

tutional claim on the merits. The Court of Appeals held that

the evidence was sufficient to convict Jones of abduction

because Jones "directed Williams"—through Jones’s "words

and actions combined with his threatening use of the firearm"

—to "go to the back of the restaurant and retrieve the money

5

The Commonwealth did not explicitly raise AEDPA before the district

court, but it did clearly raise the AEDPA standard before the district court

by asserting that to prevail Jones must show that the state court’s determi-

nation was "not merely . . . wrong, but . . . unreasonably wrong."

16 JONES v. SUSSEX I STATE PRISON

from the register located there." Because the appellate court

concluded that Jones did not just rob Williams but also con-

trolled Williams’s movement with force and intimidation, the

court resolved the double jeopardy contention. The Supreme

Court of Virginia summarily affirmed that holding. See Weeks

v. Angelone, 176 F.3d 249, 259 (4th Cir. 1999), aff’d, 528

U.S. 225 (2000) (holding that a summary disposition of a

defendant’s claim on direct appeal constitutes an adjudication

on the merits).

Applying AEDPA, we must deny Jones’s petition because

the state courts’ adjudication of his double jeopardy claim

was not "contrary to," or an "unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States." 28 U.S.C. § 2254(d)(1). Because

the Court of Appeals of Virginia determined that Jones

instructed Williams and constricted his freedom of movement

with force and intimidation, the appellate court did not unrea-

sonably determine that Jones’s abduction of Williams was a

distinct offense under Virginia law warranting separate pun-

ishment. Garrett, 471 U.S. at 778; Hunter, 459 U.S. at 366.6

VI.

The judgment of the district court is

AFFIRMED.

6

Jones may well be correct that the state trial court’s "two robberies"

theory constituted an erroneous application of Virginia’s incidental deten-

tion doctrine. See Jordan v. Commonwealth, 347 S.E.2d 152, 156 (Va. Ct.

App. 1986). While we lament the fact that Virginia appellate courts have

not addressed the state trial court’s possible error, AEDPA prohibits us

from remedying errors of law that do not contravene a Supreme Court

holding. 28 U.S.C. § 2254(d)(1).