Jerome Dewald v. Gene Wriggelsworth

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0063p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JEROME WESTFIELD DEWALD, ┐

Petitioner-Appellee, │

│

│ No. 12-2076

v. │

>

│

GENE WRIGGELSWORTH, │

Respondent-Appellant. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids

No. 1:08-cv-00906—Paul Lewis Maloney, Chief District Judge.

Argued: January 23, 2014

Decided and Filed: April 7, 2014

Before: COLE, GILMAN, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant, J. Nicholas Bostic, BOSTIC & ASSOCIATES, Lansing,

Michigan, for Appellee. ON BRIEF: Mark G. Sands, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellant, J. Nicholas Bostic, BOSTIC &

ASSOCIATES, Lansing, Michigan, for Appellee.

GILMAN, J., delivered the opinion of the court, in which DONALD, J., concurred.

COLE, J. (pp. 12B21), delivered a separate dissenting opinion.

1

12-2076 Dewald v. Wriggelsworth Page 2

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. The district court granted habeas relief under

28 U.S.C. § 2254 to Jerome Westfield Dewald with regard to his state convictions for common-

law fraud and larceny by conversion, which arose from Dewald’s diversion of presidential

campaign contributions into a bank account that he controlled. In doing so, the court concluded

that the Federal Election Campaign Act (FECA), 2 U.S.C. §§ 431 et seq., preempted the state-

law basis for those convictions, and that the Michigan Court of Appeals’ determination to the

contrary was objectively unreasonable.

Sheriff Gene Wriggelsworth, on behalf of the state of Michigan, contends that the district

court erred in granting habeas relief because (1) there is no clearly established federal law, as

determined by the Supreme Court, holding that the FECA precludes a state from prosecuting a

defendant for committing fraud in the context of a federal election; and (2) even if federal

preemption provides “clearly established federal law” in general, the state appellate decision

affirming Dewald’s convictions did not unreasonably apply those general principles to the case

before it. Because we find the State’s arguments persuasive, we REVERSE the judgment of the

district court.

I. BACKGROUND

A. Factual background

During the 2000 presidential election, Dewald established and operated two political

action committees (PACs), one called “Friends for a Democratic White House” and the other

called “Swing States for a GOP White House.” Dewald, under the pretense of soliciting

campaign funds for each PAC, mailed fundraising letters to political donors whose names and

addresses appeared on donor lists maintained by the Federal Election Commission.

The PACs collected approximately $750,000 in contributions, but Dewald paid less than

20 percent of that amount to the political parties or to any outside PACs. He instead funneled

12-2076 Dewald v. Wriggelsworth Page 3

most of the campaign donations into his own for-profit corporation that provided “consulting and

administrative services” to each of the two PACs. The money ultimately flowed into a bank

account maintained by Dewald’s consulting firm, or was seized by the State in conjunction with

the underlying criminal investigation.

B. State-court procedural history

Dewald was indicted under Michigan law for obtaining money under false pretenses,

common-law fraud, and larceny by conversion. A jury convicted him on all counts. He was

initially sentenced to concurrent prison terms of 24 to 60 months on Count One (false pretenses);

90 days on Count Two (false pretenses); and 30 to 120 months on Counts Three through Six

(fraud and larceny by conversion). The state trial court later resentenced Dewald because of a

sentencing miscalculation, which reduced his overall sentence to between 23 and 120 months.

Dewald then appealed his convictions to the Michigan Court of Appeals. He raised a

number of claims, including whether the FECA preempts the state-law charges against him. The

Michigan Court of Appeals rejected all of his claims. See People v. Dewald, 705 N.W.2d 167,

173 (Mich. Ct. App. 2005). Regarding Dewald’s preemption claim, the Michigan Court of

Appeals reasoned:

Congress stated that the provisions of the Federal Election Campaign Act (FECA)

“supersede and preempt any provision of State law with respect to election to

Federal office.” 2 USC 453. However, federal courts have held that “‘courts

have given section 453 a narrow preemptive effect in light of its legislative

history.’” Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1280 (C.A.5, 1994),

quoting Stern v. Gen. Electric Co., 924 F.2d 472, 475 n. 3 (C.A.2, 1991).

Additionally, federal courts have held that Congress did not intend the criminal

sanctions of the FECA to be a substitute for all other possible criminal sanctions.

United States v. Trie, 21 F Supp 2d 7, 19 (D.D.C., 1998), citing United States v.

Hopkins, 916 F.2d 207, 218 (C.A.5, 1990), United States v. Curran, 20 F.3d 560,

556 (C.A.3, 1994), and United States v. Oakar, 924 F. Supp. 232, 245 (D.D.C.,

1996), aff’d in part and rev’d in part on other grounds, 111 F.3d 146, 324 U.S.

App DC 104 (1997). Defendant was charged with and convicted of Michigan

state-law crimes. These crimes are not specifically preempted by 2 USC 453.

Defendant does not cite another portion of the federal statute that specifically

preempts a state from pursuing criminal charges when the crimes are brought

against a factual background that involves an election. There is also no conflict

between state and federal law in this area. Defendant’s convictions for the crimes

12-2076 Dewald v. Wriggelsworth Page 4

at issue were not barred by the FECA. Thus, we reject defendant’s federal-

preemption argument.

Id. The Michigan Supreme Court subsequently denied Dewald leave to appeal. He then

unsuccessfully sought post-conviction relief in state court.

C. Federal habeas petition

After exhausting his state post-conviction appeals, Dewald filed his petition for a writ of

habeas corpus in the United States District Court for the Western District of Michigan. Both the

magistrate judge and the district court judge agreed that habeas relief should be granted on

Dewald’s convictions for fraud and larceny by conversion. This timely appeal by the State

followed.

II. ANALYSIS

A. Standard of review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.

§§ 2254, et seq., governs Dewald’s petition. AEDPA requires us to deny habeas relief with

respect to any federal constitutional claim that was “adjudicated on the merits in State court

proceedings” unless the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States.” Id. § 2254(d).

B. Clearly established federal law

“Under AEDPA, if there is no clearly established Federal law, as determined by the

Supreme Court that supports a habeas petitioner’s legal argument, the argument must fail.”

Miskel v. Karnes, 397 F.3d 446, 454 (6th Cir. 2005) (emphasis in original) (internal quotation

marks omitted). Identifying clearly established federal law is thus the “threshold question under

AEDPA.” Williams v. Taylor, 529 U.S. 362, 390 (2000). In answering this threshold question,

we must consult “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of

the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006)

(internal quotation marks omitted).

12-2076 Dewald v. Wriggelsworth Page 5

This straightforward AEDPA test is easier to state than apply. The Supreme Court has

noted the tension “between applying a rule and extending it” in the determination of clearly

established law. Yarborough v. Alvarado, 541 U.S. 652, 666 (2004). For example, the Supreme

Court has acknowledged that “if a habeas court must extend a rationale before it can apply to the

facts at hand then the rationale cannot be clearly established at the time of the state-court

decision.” Id. The Supreme Court has recognized, however, that “[c]ertain principles are

fundamental enough that when new factual permutations arise, the necessity to apply the earlier

rule will be beyond doubt.” Id.

This tension is present here, with Dewald arguing that we can apply general standards of

federal preemption to this case without exceeding our inquiry under AEDPA. In making this

argument, Dewald minimizes the significance of the lack of Supreme Court cases directly

addressing FECA preemption. Michigan, in turn, argues that whether the FECA preempts

state-court criminal prosecutions is a question that “has not been presented to, let alone answered

by, the United States Supreme Court.”

The proper disposition of this case largely turns on how one characterizes the conduct for

which Dewald was prosecuted. As viewed by the district court, the Michigan Court of Appeals

committed a fundamental error by permitting the State to prosecute Dewald for using a federal

candidate’s name to unlawfully solicit campaign contributions from those persons shown on

donor lists maintained by the Federal Election Commission. This led the court to conclude that

the State’s prosecution of Dewald intruded into areas of the law that were expressly governed by

the FECA. Cf. U.S. Term Limits v. Thornton, 514 U.S. 779, 805 (1995) (voiding an Arkansas

statute that limited the number of times that a person could run for Congress, with the Court

holding that the statute violated the Constitution’s Election Clause by in effect regulating a

federal election).

But Dewald’s conduct did not add a new qualification for federal office as in Thornton,

nor did his prosecution regulate a federal election or upset the federal-state electoral balance.

Rather, Dewald simply used the 2000 presidential election to create an air of legitimacy for his

illegitimate objective: to funnel money to his for-profit consulting firm under false pretenses.

His prosecution thus reflected the State’s inherent authority to prosecute wrongdoing within its

12-2076 Dewald v. Wriggelsworth Page 6

borders. The district court was therefore mistaken when it framed this case as a question of the

State attempting to regulate a federal election by prosecuting Dewald.

In addition to mischaracterizing the conduct for which Dewald was prosecuted, the

district court found preemption based upon principles distilled from various Supreme Court cases

that addressed federal laws other than the FECA. These laws included three separate federal

statutes related to food packaging, Jones v. Rath Packing Co., 430 U.S. 519, 534–43 (1977), the

Employee Retirement Income Security Act, Shaw v. Delta Airlines, Inc., 463 U.S. 85, 108–09

(1983), and the Clean Water Act, International Paper Co. v. Ouelette, 479 U.S. 481, 491 (1987),

respectively. Dewald urges us to find clearly established federal law regarding FECA

preemption based upon these cases.

But none of these cases addresses whether the FECA preempts state-law convictions for

fraud-related crimes, nor has Dewald cited any cases so holding. Indeed, when Dewald was

convicted (and even as of the date of this opinion), no Supreme Court case had held that the

FECA preempts state-law fraud claims, let alone interpreted the key statutory provisions at issue

in this case. Supreme Court cases applying general preemption principles in unrelated

circumstances to unrelated statutes do not, by definition, provide clearly established federal law

in this case because their holdings do not “squarely address[]” preemption in light of the FECA.

See Wright v. Van Patten, 552 U.S. 120, 125 (2008) (reversing the grant of habeas relief with

regard to a particular exception to the clearly established ineffective-assistance-of-counsel

standard because “[n]o decision of this Court . . . squarely addresses the issue in this case”).

AEDPA deference counsels against “break[ing] new ground” on unsettled legal issues,

Williams v. Taylor, 529 U.S. 362, 381 (2000) (opinion of Stevens, J.), or interpreting existing

caselaw to decide “an open question in our jurisprudence.” Carey v. Musladin, 549 U.S. 70, 76

(2006) (denying habeas relief because “[t]his Court has never addressed a claim that such

private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a

fair trial” (emphasis added)). Whether the FECA preempts state-law prosecutions like Dewald’s

is an open question that the Supreme Court has never addressed. See id. (declining to find

clearly established law because, although the Court had generally articulated a defendant’s

12-2076 Dewald v. Wriggelsworth Page 7

fair-trial rights, “we have never applied that test to spectators’ conduct”). We therefore find no

clearly established federal law in this case.

Our dissenting colleague disagrees, claiming that we are establishing a “bright-line rule

[that] could never account for the myriad permutations preemption might take.” Dissenting Op.

at 13. But our holding does no such thing. If, for example, a new factual scenario arises under

AEDPA in connection with a statute that has previously been addressed by the Supreme Court,

we would certainly consider extending those principles to “myriad permutations.” We believe

that this conclusion is consistent with the Supreme Court’s pronouncement that “[i]f the rule in

question is one which of necessity requires a case-by-case examination of the evidence,” then

courts “can tolerate a number of specific applications without saying that those applications

themselves create a new rule.” Williams, 529 U.S. at 382 (internal quotation marks omitted).

But in a case like this, where the Supreme Court has answered none of the relevant legal

questions before us, we cannot find clearly established law. The Court, for example, has never

discussed the scope of the FECA’s preemption clause, nor has it analyzed the Federal Election

Commission’s preemption regulations. This is a classic “open question.” See Carey, 549 U.S. at

76. AEDPA would be “undermined if habeas courts introduced rules not clearly established

under the guise of extensions to existing law.” See Yarborough v. Alvarado, 541 U.S. 652, 666

(2004).

If we were to apply federal preemption principles in the manner urged by Dewald, we

would in effect “create a new rule” because the scope of FECA preemption would be

transformed from an open question into a settled principle. This result would be particularly

troubling considering the number of other federal courts that have concluded that the FECA does

not preempt various state laws. See Janvey v. Democratic Senatorial Campaign Comm., Inc.,

712 F.3d 185, 200–01 (5th Cir. 2013) (collecting cases from the Second, Fifth, and Eighth

Circuits in concluding that the FECA does not preempt a receiver’s attempts under Texas law to

recoup fraudulently obtained political contributions); see also Karl Rove & Co. v. Thornburgh,

39 F.3d 1273, 1280–81 (5th Cir. 1994) (holding that the FECA does not preempt a state law

addressing the financial liability of candidates for the debts of their principal campaign

12-2076 Dewald v. Wriggelsworth Page 8

committees). Because no Supreme Court case has held that the FECA preempts state-law fraud

claims, Dewald’s convictions did not violate clearly established law under the AEDPA standard.

C. Unreasonable application of clearly established law

Even if we were to apply general preemption principles to the specific facts of this case,

we cannot conclude that the Michigan Court of Appeals’ conclusion was unreasonable. “The

more general the rule, the more leeway courts have in reaching outcomes in case-by-case

determinations.” Yarborough, 541 U.S. at 664. And in this case we confront the issue of

preemption at an expansive level of generality because the Supreme Court has never addressed

the FECA in the context of preemption. We therefore ask not whether the state court’s

determination was incorrect, but rather whether fair-minded jurists could disagree about whether

the state court’s decision conflicts with existing Supreme Court caselaw. See Harrington v.

Richter, 131 S. Ct. 770, 786 (2011) (“[AEDPA] preserves authority to issue the writ in cases

where there is no possibility fairminded jurists could disagree that the state court’s decision

conflicts with this Court’s precedents.”).

Our dissenting colleague makes one bare-bones reference to the fair-minded-jurist

standard at the end of his opinion. Dissenting Op. at 21. The dissent instead emphasizes that the

Michigan Court of Appeals simply ignored, misapplied, or failed to consider the relevant legal

principles. Id. at 12, 17. But the Michigan Court of Appeals in fact cited cases from our sister

circuits that have interpreted the FECA’s preemption clause, discussed the purposes of the

FECA, and weighed the competing federal-state considerations. See, e.g., Thornburgh, 39 F.3d

at 1280–81. Indeed, the cases cited by the Michigan Court of Appeals directly address the

various theories of preemption in the context of the FECA. See id. (holding that “courts have

given section 453 a narrow preemptive effect in light of its legislative history” and rejecting an

argument based on conflict preemption); see also Stern v. Gen. Elec. Co., 924 F.2d 472, 475 (2d

Cir. 1991) (opining on the “narrow wording” of the FECA’s preemption clause and rejecting

arguments based on field and conflict preemption).

We reserve judgment as to whether the Michigan Court of Appeals’ reliance on these

cases was correct, for that is not our inquiry under AEDPA. See Knowles v. Mirzayance, 556

U.S. 111, 123 (2009) (explaining that the correctness of a state court’s decision is not the

12-2076 Dewald v. Wriggelsworth Page 9

appropriate inquiry in habeas proceedings). But we find that the Michigan Court of Appeals’

reliance on these cases was reasonable, particularly considering the lack of guidance from the

Supreme Court in the context of FECA preemption. See Yarborough, 541 U.S. at 664

(“Applying a general standard to a specific case can demand a substantial element of

judgment.”).

In addition, the Michigan Court of Appeals’ observation that “courts have given section

453 a narrow preemptive effect in light of its legislative history” is a reasonable one. Under this

section, the provisions of the FECA “supersede and preempt any provision of State law with

respect to election to Federal office.” Other courts have struggled to define the contours of this

language, recognizing that Ҥ 453 is subject to more than one reading, and the areas preempted

may vary with different readings.” Weber v. Heaney, 995 F.2d 872, 875 (8th Cir. 1993); see also

Reeder v. Kansas City Bd. of Police Comm’rs, 733 F.2d 543, 545 (8th Cir. 1984) (“The

preemption statute, then, is not so clear (if any statute ever is) as to preclude us from consulting

the legislative history.”). If the statute’s reach has puzzled other courts confronting the issue on

de novo review, its meaning hardly becomes clearer when viewed through an AEDPA-tinged

lens. An ambiguous statute is fertile ground from which fair-minded disagreements grow, and

we find that the Michigan Court of Appeals’ narrow construction of the FECA’s preemption

provision is a reasonable reading of existing precedent.

The dissent next seeks to do the state court’s work for it, reasoning that had the court

undertaken an independent analysis of the FECA’s preemption clause or its accompanying

regulations, then preemption would have been found. Dissenting Op. at 17. But we cannot

conduct “our own independent inquiry into whether the state court was correct as a de novo

matter.” Yarborough, 541 U.S. at 665. And the dissent’s contention that “Congress enacted a

broad preemption clause in § 453(a),” Dissenting Op. at 18, is directly contradicted by the

Michigan Court of Appeals’ citation to Thornburgh, in which the Fifth Circuit concluded that the

FECA’s preemption clause has been given “narrow preemptive effect.” Thornburgh, 39 F.3d at

1280. The dissent’s apparent disagreement with Thornburgh’s interpretation of the FECA’s

preemption clause is precisely the type of fair-minded disagreement that precludes a grant of

habeas relief. See Knowles, 556 U.S. at 123 (holding that the appropriate inquiry under AEDPA

12-2076 Dewald v. Wriggelsworth Page 10

is “not whether a federal court believes a state court’s determination . . . was incorrect but

whether that determination was unreasonable—a substantially higher threshold”) (internal

quotation marks omitted).

In addition to the FECA’s preemption clause, we find significant the fact that the

regulations promulgated by the Federal Election Commission include a list of state activities and

laws that are not preempted by the FECA, the most relevant of which is the “[p]rohibition of

false registration, voting fraud, theft of ballots, and similar offenses.” 11 C.F.R. § 108.7(c)(4)

(emphases added). This case does not address “voting fraud” in the traditional sense of someone

casting a ballot under false pretenses; instead, it is about the fraudulent acquisition of money by

an individual purporting to represent a federally registered PAC. With voting fraud and similar

offenses explicitly not preempted by the regulations, we find nothing unreasonable in the

decision of the Michigan Court of Appeals to allow Dewald to be prosecuted for obtaining

money under false pretenses, common-law fraud, and larceny by conversion.

The dissent, however, contends that our reliance on this regulation is a “red herring.”

Dissenting Op. at 18. But its own analysis demonstrates why fair-minded jurists could disagree

about the application of 11 C.F.R. § 108.7(c)(4). According to the dissent, run-of-the-mill fraud

cannot qualify as a “similar offense[]” because it is not “similar in nature” to voting fraud.

(Dissenting Op. at 19) Yet reasonable jurists could certainly disagree about whether voting fraud

and general fraud are sufficiently similar in nature so that Dewald’s conduct could fall under

§ 108.7(c)(4). Cf. Cook v. Gralike, 531 U.S. 510, 523–24 (2001) (emphasis added) (internal

quotation marks omitted) (explaining that the Elections Clause, found in Article I, Section 4 of

the Constitution, grants to states the ability to regulate “notices, registration, supervision of

voting, protection of voters, [and the] prevention of fraud and corrupt practices,” among other

things). To conclude otherwise would produce a situation in which a state could prosecute

voting fraud, but would be left without recourse to punish other fraudulent conduct arising—

however tangentially—in the context of a federal election.

Finally, the dissent’s contention that the Michigan Court of Appeals misapplied the

presumption against preemption arises from a mischaracterization of this case. Dissenting Op. at

20. Neither Dewald through his fraudulent scheme, nor the State by its prosecution of him,

12-2076 Dewald v. Wriggelsworth Page 11

attempted to regulate a federal election. Michigan’s decision to prosecute Dewald simply

reflects the fundamental principle that states may exercise concurrent jurisdiction to prosecute

crimes within their borders. See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) (“[T]he States

possess sovereignty concurrent with that of the Federal Government, subject only to limitations

imposed by the Supremacy Clause.”). We thus conclude that the Michigan Court of Appeals

reasonably decided that the presumption against preemption applies in this case.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district court.

Dewald’s petition for a writ of habeas corpus is DENIED.

12-2076 Dewald v. Wriggelsworth Page 12

_________________

DISSENT

_________________

COLE, Circuit Judge, dissenting. Where, as here, a state court ignores or misapplies

nearly every governing legal principle at issue, habeas corpus relief is warranted. I respectfully

dissent from the majority’s conclusion that there was no “clearly established Federal law” that

could form the basis for relief under 28 U.S.C. § 2254. General principles governing the federal

preemption of state laws form a core component of our republic. Those principles, anchored in

the Supremacy Clause of the Constitution, and articulated in Supreme Court cases spanning from

McCulloch v. Maryland, 4 Wheat. 316 (1819), to Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

(2001), provide clearly established federal law for habeas purposes. By any measure, the

Michigan Court of Appeals unreasonably applied those principles in affirming Dewald’s

convictions. Accordingly, I would affirm the district court’s well-reasoned grant of the writ.

I. WHEN FEDERAL LAW IS “CLEARLY ESTABLISHED”

To grant Dewald habeas relief, the majority would require a Supreme Court decision

specifically holding that the FECA preempts state-law fraud claims. This approach frames the

clearly established federal law inquiry far too narrowly. See Williams v. Taylor, 529 U.S. 362,

382 (2000) (opinion of Stevens, J.) (“[R]ules of law may be sufficiently clear for habeas

purposes even when they are expressed in terms of a generalized standard rather than as a bright-

line rule.”). As the Supreme Court has made clear, habeas relief is warranted not only when “the

state court . . . unreasonably extends a legal principle from [Supreme Court] precedent to a new

context where it should not apply,” but also when the state court “unreasonably refuses to extend

that principle to a new context where it should apply.” See id. at 407 (opinion of the court)

(emphasis added); accord Ramdass v. Angelone, 530 U.S. 156, 166 (2000) (plurality opinion).

Put another way, “AEDPA does not require state and federal courts to wait for some nearly

identical factual pattern before a legal rule must be applied.” Panetti v. Quarterman, 551 U.S.

930, 953 (2007) (internal quotation marks omitted).

12-2076 Dewald v. Wriggelsworth Page 13

To the contrary, “[c]ertain principles are fundamental enough that when new factual

permutations arise, the necessity to apply the earlier rule will be beyond doubt.” Yarborough v.

Alvarado, 541 U.S. 652, 666 (2004). Thus, “[i]f the rule in question is one which of necessity

requires a case-by-case examination of the evidence,” then courts “can tolerate a number of

specific applications without saying that those applications themselves create a new rule.”

Williams, 529 U.S. at 382 (opinion of Stevens, J.) (quoting Wright v. West, 505 U.S. 277, 308

(1992)). What could be more fundamental than our settled practice, set forth in the Constitution

and made clear by nearly 200 years of Supreme Court precedent, that Congress may declare the

supreme law of the land by preempting state legislation? More importantly for this appeal, how

could the Supreme Court ever articulate a rule of law that “squarely addresses”—at least for the

majority’s purposes—the thousands of federal and state statutes that could conceivably interact

in a given factual setting?

The simple answer is that no rule of law could provide the certitude the majority demands

by addressing every possible instance of preemption. But this is no reason to deny habeas relief

outright. Strickland v. Washington, 466 U.S. 668 (1983), offers a helpful analogy. In Strickland,

the Supreme Court announced a generalized legal standard that lower courts must apply to a

variety of factual settings. Id. at 687. There, the Court acknowledged the difficulty in

articulating a bright-line rule that could apply to every variation of inadequate legal

representation. See id. at 688 (“More specific guidelines are not appropriate.”). Yet the

Supreme Court has held, time and again, that Strickland’s generalized standards provide clearly

established federal law for habeas purposes. See, e.g., Romplilla v. Beard, 545 U.S. 374, 380

(2005) (granting habeas corpus relief under a Strickland ineffective assistance of counsel claim);

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (same).

The same holds true for claims of federal preemption. A bright-line rule could never

account for the myriad permutations preemption might take. Therefore, the Supreme Court has

established general principles governing preemption that are, of necessity and by design, broad

enough to permit case-by-case application to the precise federal and state laws at issue in a given

dispute. See, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (discussing general

12-2076 Dewald v. Wriggelsworth Page 14

principles of federal preemption); Jones v. Rath Packing Co., 430 U.S. 519, 525–26 (1977)

(same); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (same).

As such, I find unpersuasive the majority’s reasoning that Supreme Court cases applying

general preemption principles in other contexts “do not, by definition, provide clearly established

federal law in this case.” Op. at 6. The cases cited in support of this proposition are readily

distinguished. In Wright v. Van Patten, 552 U.S. 120 (2008), the Seventh Circuit granted habeas

relief because the Wisconsin Court of Appeals did not evaluate a defendant’s ineffective

assistance of counsel claim under the more particularized standard from United States v. Cronic,

466 U.S. 648 (1984). Van Patten, 552 U.S. at 125. But there, the Seventh Circuit first conceded

that the case “present[ed] [a] novel . . . question” of whether Cronic even ought to apply. Id.

The Supreme Court reversed on the grounds that it was not “clearly establishe[d] that Cronic

should replace Strickland in this novel factual context.” Id. In short, habeas relief was improper

because the state court was not obligated to apply a particular legal rule. See id. Similarly, in

Carey v. Musladin, 549 U.S. 70 (2006), the Supreme Court reversed the grant of habeas relief on

the grounds that “[n]o holding of this Court required the California Court of Appeal to apply the

test of Williams and Flynn [involving prejudicial courtroom practices of state officials] to the

spectators’ conduct here.” Id. at 77 (emphasis added). Again, habeas relief was improper

because the state court was not obligated to apply a particular governing standard. Id.

Here, in contrast, no one contests that the state court was obligated under the Supremacy

Clause and long-standing Supreme Court precedent to consider Dewald’s preemption argument.

The Michigan Court of Appeals acknowledged as much in its opinion, when it attempted

(haphazardly) to evaluate Dewald’s claim under the very governing standards the majority would

now have us believe were not clearly established. See People v. Dewald, 705 N.W.2d 167, 173

(Mich. Ct. App. 2005). The State’s attorney conceded the same at oral argument when he

admitted that the state court was required to consider the general principles governing federal

preemption and agreed that what we are really debating is the reasonableness of the state court’s

application of those principles.

While the majority insists that this case involves a novel question, its novelty pertains

only to the state court’s application of preemption principles—not their existence or the state

12-2076 Dewald v. Wriggelsworth Page 15

court’s obligation to consider them. As such, the Supreme Court’s general principles governing

federal preemption provide the clearly established federal law necessary to grant habeas relief.

II. GENERAL PRINCIPLES GOVERNING FEDERAL PREEMPTION

The Supreme Court has “clearly established” several general principles that govern

federal preemption of state legislation. See, e.g., Crosby v Nat’l Foreign Trade Council,

530 U.S. 363, 372 (2000) (declaring it a “fundamental principle” of our republic “that Congress

has the power to preempt state law”); Cipollone, 505 U.S. at 516–17 (collecting cases).

Preemption generally arises in one of three forms: express preemption, field preemption, or

conflict preemption. Cipollone, 505 U.S. at 516. This case involves express preemption, which

occurs when Congress enacts legislation with a preemption clause, thereby explicitly declaring

the preeminence of federal law in a given regulatory area. See, e.g., Lorillard Tobacco Co.,

533 U.S. at 541; Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95–101 (1983). Three clearly

established principles guide any express preemption analysis.

First, it is well settled that “[t]he purpose of Congress is the ultimate touchstone” of any

preemption analysis. Cipollone, 505 U.S. at 516 (quoting Retail Clerks v. Schermerhorn,

375 U.S. 96, 103 (1963)). Accordingly, when Congress has enacted an express preemption

clause, the central duty of a reviewing court is “to identify the domain expressly pre-empted” by

that clause, because “an express definition of the pre-emptive reach of a statute . . . supports a

reasonable inference . . . that Congress did not attempt to preempt other matters.” Lorillard

Tobacco Co., 533 U.S. at 541 (citations omitted). This duty includes, where possible, following

an agency’s regulation defining the scope of federal preemption. See City of New York v. FCC,

486 U.S. 57, 63–64 (1998).

Second, when determining whether federal legislation preempts state law, courts must

look not only to the state law as written, but also to how it is interpreted and applied in a given

factual setting. State laws of general applicability, while not necessarily preempted on their face,

may nevertheless be preempted “as applied.” See Am. Airlines, Inc. v. Wolens, 513 U.S. 218,

226–28 (1995) (holding the Illinois Consumer Fraud Act preempted by the Federal Airline

Deregulation Act to the extent the state law applied to airline frequent flier programs); Alessi v.

Raybestos-Manhattan, Inc., 451 U.S. 504, 525 (1981) (holding a state workers’ compensation

12-2076 Dewald v. Wriggelsworth Page 16

regime preempted by ERISA to the extent state law applied to pension plans governed by federal

law); Rath Packing Co., 430 U.S. at 526 (“This [preemption] inquiry requires us to consider the

relationship between state and federal laws as they are interpreted and applied, not merely as

they are written.”). As the Supreme Court has explained, it would create an “utterly irrational

loophole” to the general principles of federal preemption “if state impairment of the federal

scheme should be deemed acceptable so long as it is effectuated by the particularized application

of a general statute.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386 (1992).

Third, because the states are independent sovereigns in our federal system, courts

generally “start with the assumption that the historic police powers of the States were not to be

superseded by [federal legislation] unless that was the clear and manifest purpose of Congress.”

Rice, 331 U.S. at 230. Accordingly, “when the text of a pre-emption clause is susceptible of

more than one plausible reading, courts ordinarily ‘accept the reading that disfavors

preemption’” in areas of traditional state regulation. Altria Grp., Inc. v. Good, 555 U.S. 70, 77

(2008) (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)). This presumption

of non-preemption does not apply, however, when states regulate in an area “where there has

been a history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108 (2000).

This discussion of the general principles governing federal preemption underscores my

belief that the real issue on appeal is whether the state court unreasonably applied preemption

principles—not whether they were clearly established. As demonstrated, the Supreme Court had

clearly established this body of federal law prior to the state-court determination in the instant

case. Moreover, these governing principles are, of necessity, broad enough to permit case-by-

case application to the precise federal and state laws at issue in a given dispute. By 2005, the

Supreme Court had applied these principles in a host of cases ranging from state regulation of the

purchase of foreign goods, Crosby, 530 U.S. at 366, to state disability benefits requirements,

Shaw, 463 U.S. at 36, to local ordinances governing plasma donation, Hillsborough Cnty., Fla. v.

Automated Med. Labs, Inc., 471 U.S. 707, 713 (1985), just to name a few. Lower courts, ours

included, have consistently applied these principles to the FECA as well. Bunning v. Kentucky,

42 F.3d 1008, 1011–12 (6th Cir. 1993); Janvey v. Democratic Senatorial Campaign Comm., Inc.,

12-2076 Dewald v. Wriggelsworth Page 17

712 F.3d 185, 200–02 (5th Cir. 2013). I therefore turn to consider the reasonableness of the state

court’s determination in light of the governing law on federal preemption.

III. REASONABLENESS OF THE STATE COURT’S DETERMINATION

The majority states that the appropriate inquiry under AEDPA is “not whether a federal

court believes a state court’s determination . . . was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Mirzayance, 556 U.S. at 123. No quarrel

there. I note for good measure that when “the [legal] standard is a general standard,” as it is

here, “a state court has even more latitude to reasonably determine that a defendant has not

satisfied that standard.” Id. Nevertheless, the Supreme Court has made clear the following:

That the standard is stated in general terms does not mean that the [state court’s]

application was reasonable. . . . Nor does AEDPA prohibit a federal court from

finding an application of a principle unreasonable when it involves a set of facts

different from those of the case in which the principle was announced. The

statute recognizes, to the contrary, that even a general standard may be applied in

an unreasonable manner. These principles guide a reviewing court that is faced,

as we are here, with a record that cannot, under any reasonable interpretation of

the controlling legal standard, support a certain legal ruling.

Panetti, 551 U.S. at 953 (citations and internal quotation marks omitted). Where, as here, the

state court either ignores or misapplies nearly every governing legal principle, I believe habeas

relief is warranted, regardless of how general the controlling legal standards may be.

A. The State Court Failed to Identify the Domain Expressly Preempted by Federal Law

As the magistrate judge in Dewald’s federal habeas case properly concluded after a

thorough review of the state-court opinion at issue, “The decision of the Michigan Court of

Appeals ignored virtually every principle established by the Supreme Court to govern

preemption analysis.” Dewald v. Wrigglesworth, No. 1:08–cv–906, 2012 WL 3206021, at *21

(W.D. Mich. Jan. 9, 2012). Most glaringly, the state court made no effort—as was its central

duty under Supreme Court precedent—to analyze the FECA’s express preemption clause or to

identify the domain of state law expressly preempted. See Lorillard Tobacco Co., 533 U.S. at

541 (citing Cipollone, 505 U.S. at 517).

12-2076 Dewald v. Wriggelsworth Page 18

Had the Michigan Court of Appeals considered the FECA’s preemption clause, or had it

consulted the FEC’s implementing regulations, which also preempt state law under the plain

language of 2 U.S.C. § 453(a), the state court would have concluded, as the district court

concluded, that Dewald’s prosecutions were preempted. See Dewald, 2012 WL 3206021, at *16.

Congress enacted a broad preemption clause in § 453(a), which states that the FECA and its

regulations “supersede and preempt any provision of State law with respect to election to Federal

office.” 2 U.S.C. § 453(a) (emphasis added). Congress followed this broad preemption clause

with a single, narrow exception (inapplicable here) governing the use of funds for the purchase

or construction of an office building for political parties. Id. § 453(b). Congress enacted no

other exceptions to the FECA’s preemptive reach. Had Congress desired to do so, surely it knew

how. See Bilski v. Kappos, 130 S. Ct. 3218, 3250 (2010) (“We generally presume that Congress

does not, one might say, hide elephants in mouseholes.” (citation and internal quotation marks

omitted)).

The Michigan Court of Appeals also failed to heed the Supreme Court’s unanimous

holding in City of New York v. Federal Communications Commission, which states that courts

must follow an agency’s regulation defining the scope of preemption absent congressional intent

to the contrary. See 487 U.S. at 63–64. Here, the state court failed to cite or even consider the

FEC’s preemption regulations. See Dewald, 705 N.W.2d at 175. Had the court of appeals done

so, and had it fulfilled its obligation to consider an “as applied” challenge to the state laws at

issue, the court would have recognized that Dewald’s prosecutions were preempted by 11 C.F.R.

§ 108.7(b)(1)–(b)(2), which provide that “Federal law supersedes State law concerning the []

organization and registration of political committees supporting Federal candidates [and]

[d]isclosure of receipts and expenditures by Federal candidates and political committees.”

The majority finds it “significant” that the FEC’s regulations elsewhere provide that the

“[p]rohibition of false registration, voting fraud, theft of ballots, and similar offenses” are not

preempted by the FECA. Op. at 10 (citing Id. § 108.7(c)(4) (emphasis added)). I believe this is

a red-herring—offered as little more than a post-hoc justification for an otherwise unreasonable

application of clearly established federal law. Even so, the majority’s reliance on § 108.7(c)(4)

falls short under the most basic canons of statutory construction. The state’s attorney conceded

12-2076 Dewald v. Wriggelsworth Page 19

as much at oral argument by declaring, “this [prosecution] isn’t about voter fraud; this is just

about fraud . . . if it were about voter fraud . . . we’d be in a better position because of 11 C.F.R.

§ 108.7(c)(4).”

By articulating a narrow exception to the preemptive reach of the FECA in § 108.7(c)(4),

the FEC was merely acknowledging a long-standing constitutional dichotomy concerning which

aspects of federal elections the states may regulate. As the Supreme Court explained, states have

no inherent authority to regulate elections to federal office. U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 803–04 (1995). The Elections Clause of Article I delegates some powers to the

states, but only to regulate the “Times, Places and Manner of holding Elections for Senators and

Representatives.” U.S. Const. art. I, § 1, cl. 1. This grant of authority to prescribe the

mechanisms for holding congressional elections “encompasses matters like ‘notices, registration,

supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of

votes, duties of inspectors and canvassers, and making and publication of election returns.”

Cook v. Gralike, 531 U.S. 510, 523–24 (2001) (quoting Smiley v. Holm, 285 U.S. 355, 366

(1932)). In short, states are delegated the authority to promulgate “procedural regulations,” such

as the time and place of elections and the prevention of fraud and corruption in the voting

process itself. See id. at 523. The states have no authority to regulate federal elections more

broadly, even under statutes of general applicability.

11 C.F.R. § 108.7(c)(4) recognizes this dichotomy and nothing more. Under “the

commonsense canon” of noscitur a sociis, “a word is given more precise content by the

neighboring words with which it is associated.” United States v. Williams, 553 U.S. 285, 294

(2008). Thus, the term “voting fraud,” which is sandwiched between the terms “false

registration” and “theft of ballots,” pertains only to fraud in the process of voting—not fraud

more generally. Likewise, the catch-all phrase “similar offenses” means only similar offenses

with respect to the process of voting—not all other offenses relating to federal elections. See

Circuit City Stores, Inc. v. Adams, 532 U.S. 114–15 (2001) (“[Under] the maxim ejusdem

generis . . . [w]here general words follow specific words in a statutory enumeration, the general

words are construed to embrace only objects similar in nature to those objects enumerated by the

preceding specific words.” (citation and internal quotation marks omitted)). Dewald’s

12-2076 Dewald v. Wriggelsworth Page 20

prosecutions did not involve voting fraud. Accordingly, 11 C.F.R. § 108.7(c)(4)—which the

Michigan Court of Appeals did not even cite—cannot serve as the basis for saving the court’s

otherwise unreasonable application of clearly established federal law.

B. The State Court Failed to Consider an “As Applied” Preemption Argument

Dewald has consistently argued that even though the State prosecuted him under laws of

general applicability, the conduct for which he was convicted was expressly governed by the

FECA and its accompanying regulations. He therefore maintains that federal law preempted his

prosecutions. The Michigan Court of Appeals failed to consider Dewald’s “as applied”

preemption argument. Instead, the state court affirmed his convictions by summarily concluding

that the state statutes under which he was convicted “are not specifically preempted by 2 USC

453.” Dewald, 705 N.W.2d at 376. This failure to consider Dewald’s “as applied” argument

further demonstrates that the state court unreasonably applied clearly established federal law.

As the magistrate judge properly concluded, by prosecuting Dewald for the allegedly

unlawful use of a candidate’s name and the conversion of other committees’ donor lists, “the

Michigan Attorney General intruded into territory directly covered by the FECA and its

regulations.” Dewald, 2012 WL 3206021, at *16–17 (citing various statutory and regulatory

provisions governing the precise conduct at issue in Dewald’s prosecutions, including 2 U.S.C.

§§ 432(b)(4), 441d(a)(3), and 438(a)(4) as well as 11 C.F.R. §§ 102.14(a), 110.11, and 104.15)).

Where, as here, Congress expressly preempts state regulation in a particular domain,

prosecutions under state law are prohibited. See Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965, 970

(2012) (holding that express preemption clause in the Federal Meat Inspection Act preempts

California penal code provision on the slaughter of hogs); see also Pennsylvania v. Nelson, 350

U.S. 497, 500–02 (1956) (prohibiting prosecutions under the Pennsylvania Sedition Act due to

federal preemption). This is so regardless of whether the state laws at issue are consistent with

the federal objective. See Morales, 504 U.S. at 387; Mackey v. Lanier Collection Agency &

Serv., Inc., 486 U.S. 825, 830 (1988). The FECA and its accompanying regulations preempted

Dewald’s prosecutions under the Michigan statutes “as applied,” and the state court’s refusal

even to consider this argument further underscores the unreasonableness of its decision.

12-2076 Dewald v. Wriggelsworth Page 21

C. The State Court Improperly Applied the Presumption Against Preemption

Finally, the Michigan Court of Appeals improperly applied the general presumption

against preemption. Because the power to regulate federal elections never inhered in the states

as a general police power, Gralike, 531 U.S. at 522–23, the state court should not have applied

the presumption against preemption to the facts of this case, see Locke, 529 U.S. at 107–08.

Accordingly, the state court yet again unreasonably applied clearly established federal law in

affirming Dewald’s convictions.

IV. CONCLUSION

Jerome Dewald may not be the most sympathetic habeas petitioner ever to appear before

this court. He swindled hundreds of thousands of dollars out of his fellow citizens, all in the

name of personal financial gain. Nevertheless, by enacting the FECA, Congress made a clear

determination that the decision to prosecute him for these particular offenses was left to the

federal government and the federal government alone. The State of Michigan impermissibly

intruded into this precisely drawn, integrated system of federal enforcement procedures. As

such, the FECA preempted Dewald’s state prosecutions, and as described above, the Michigan

Court of Appeals’s determination to the contrary was unreasonable under clearly established

federal law. “Fairminded jurists” could not disagree. See Harrington v. Richter, 131 S. Ct. 770,

786 (2011). For these reasons, I would affirm the district court’s grant of habeas corpus relief.