Joseph Anderson v. Dwight Neven ( 2020 )


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  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOSEPH D. ANDERSON,                      No. 18-16502
    Petitioner-Appellee,
    D.C. No.
    v.                       2:14 cv-2015
    JAD
    DWIGHT NEVEN, Warden;
    ATTORNEY GENERAL FOR THE STATE
    OF NEVADA,                                 ORDER
    Respondents-Appellants.
    Filed September 11, 2020
    Before: Sydney R. Thomas, Chief Judge, and A. Wallace
    Tashima, and Kim McLane Wardlaw, Circuit Judges.
    Order;
    Statement by Judge Tashima;
    Concurrence by Judge Wardlaw;
    Dissent by Judge VanDyke
    2                     ANDERSON V. NEVEN
    SUMMARY *
    Habeas Corpus
    The panel denied a petition for panel rehearing and
    denied on behalf of the court a petition for rehearing en banc.
    In a statement respecting the denial of rehearing en banc,
    Judge Tashima wrote that he agrees wholeheartedly with
    Judge Wardlaw’s opinion concurring in the denial of
    rehearing en banc.
    Judge Wardlaw, joined by Chief Judge Thomas,
    concurred in the denial of rehearing en banc in this case in
    which the panel, in a memorandum disposition, affirmed the
    district court’s grant of habeas relief because, as the district
    court observed, no reasonable attorney would have advised
    his client to plead guilty and ignore the state court’s clear
    instructions for getting the charge dismissed. Judge
    Wardlaw wrote that the panel’s unpublished decision, which
    had no precedential value, could not disturb the “uniformity
    of [our] court’s decisions” and did not present a “question of
    exceptional purpose.” She added a few words in response to
    the dissent’s more egregious mischaracterizations of what
    transpired in this case.
    Dissenting from the denial of rehearing en banc Judge
    VanDyke, joined by Judge Bumatay, wrote that the panel’s
    decision goes far beyond Congress’s and the Supreme
    Court’s limits on federal habeas review of state court
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    ANDERSON V. NEVEN                       3
    criminal convictions, is deeply disrespectful to our state
    court brethren, usurping their authority and improperly
    criticizing their rationale, all mixed with this court’s own
    legal errors of both federal and state law that can only add
    insult to injury.
    COUNSEL
    Charles L. Finlayson (argued), Deputy Attorney General;
    Heather D. Procter, Chief Deputy Attorney General; Aaron
    D. Ford, Attorney General; Office of the Attorney General,
    Carson City, Nevada; for Respondents-Appellants.
    C.B. Kirschner (argued), Assistant Federal Public Defender;
    Rene L. Valladares, Federal Public Defender; Office of the
    Federal Public Defender, Las Vegas, Nevada; for Petitioner-
    Appellee.
    ORDER
    The panel has voted to deny Respondents-Appellants’
    petition for panel rehearing. Chief Judge Thomas and Judge
    Wardlaw have voted to deny the petition for rehearing en
    banc, and Judge Tashima has so recommended.
    The full court was advised of the petition for rehearing
    en banc. A judge requested a vote on whether to rehear the
    matter en banc, and the matter failed to receive a majority of
    the votes of the nonrecused active judges in favor of en banc
    consideration. See Fed. R. App. P. 35(a).
    4                  ANDERSON V. NEVEN
    Respondents-Appellants’ petition for panel rehearing
    and rehearing en banc is DENIED.
    TASHIMA, Circuit Judge, statement respecting the denial of
    rehearing en banc:
    Because, as a senior judge, I am prohibited from voting
    on whether to hear or rehear a case en banc, I file this
    separate statement. For the reasons briefly and succinctly
    stated therein, I agree wholeheartedly with Judge Wardlaw’s
    opinion concurring in the denial of rehearing en banc.
    WARDLAW, Circuit Judge, joined by THOMAS, Chief
    Judge, concurring in the denial of rehearing en banc:
    This was a straightforward case. Joseph Anderson failed
    to yield at an intersection, resulting in a fatal automobile
    accident. He was charged in Nevada state court with, and
    convicted of, misdemeanor failure to yield. See Nev. Rev.
    Stat. § 484B.257. He was also separately charged with
    driving under the influence (DUI) causing death, an offense
    which requires the State to prove, as an element, that the
    defendant “does any act or neglects any duty imposed by
    law.”     Id. § 484C.430(1).      The charging document
    specifically relied on Anderson’s failure-to-yield offense to
    establish this element.
    The obvious motion to dismiss on double jeopardy
    grounds was filed, which the Nevada state trial court denied
    as premature. However, the court made clear, in ALL-
    CAPS, that the criminal charge against Anderson for DUI
    causing death would be dismissed at trial on double jeopardy
    ANDERSON V. NEVEN                          5
    grounds if the State did not come up with a predicate offense
    different than the failure to yield conviction. The State failed
    to do so, and nothing in the record suggests that the
    prosecution could have charged or proved an alternative
    theory. Indeed, even before our court, the State offered
    nothing more than vague speculation to explain how it could
    have charged the case differently.            But rather than
    proceeding to trial, where the charge was all-but-guaranteed
    to be dismissed, Anderson’s attorney advised him to plead
    guilty on the incorrect assumption that doing so would better
    position him to raise a double jeopardy argument on appeal.
    Anderson accepted his attorney’s guidance. And after
    pleading guilty to a charge that was primed for dismissal, he
    was sentenced to up to twenty years in prison. Anderson’s
    trial counsel later wrote to him, admitting that his advice was
    incorrect and that he should have recommended taking the
    case to trial.
    The only claim presented by Anderson’s habeas petition,
    and consequently, the only claim before our panel, was
    whether the attorney’s advice constituted ineffective
    assistance of counsel. The answer is obvious: Yes. As the
    district court correctly observed in granting the habeas
    petition, no reasonable attorney would have advised his
    client to ignore the state court’s clear instructions for getting
    the charge dismissed. We therefore affirmed the district
    court’s grant of habeas relief.
    Our panel’s unpublished memorandum disposition had
    no precedential effect. It therefore could not disturb the
    “uniformity of [our] court’s decisions.” Fed. R. App. P.
    35(a) (criteria for en banc rehearing). Nor did this appeal
    present a “question of exceptional importance.” Id. While
    undoubtedly important to the parties, there was nothing to
    distinguish this case from the hundreds of habeas petitions
    6                   ANDERSON V. NEVEN
    our court adjudicates every year. Thus, it is little surprise
    that a majority of active judges concluded this was not the
    rare case worthy of en banc review.
    Yet to read the dissent from denial of rehearing en banc,
    one would think that we mounted a full-on federal takeover
    of the Nevada state courts. In the dissent’s eyes, our “results-
    driven” decision, through its “layers of irony,” “menaces
    federalism” and was “deeply disrespectful” to our colleagues
    on the state bench. Dissent at 12, 28, 39, 40. Indeed, the
    dissent claims that the reasoning behind our unpublished 10-
    paragraph disposition leaves readers lucky to escape
    “disaster” or even death by “dysentery.” Dissent at 13.
    I will not attempt to refute these histrionics point by
    point. Instead, for the benefit of those who have managed to
    survive their exposure to the panel disposition, I add only a
    few words in response to the dissent’s more egregious
    mischaracterizations of what transpired in this case.
    I.
    First, the dissent accuses the panel of reaching out to
    decide a double jeopardy claim that Anderson never raised.
    Dissent at 22–26. Not so. It was the State that injected
    double jeopardy into this ineffective assistance of counsel
    case through its argument that Anderson could not show
    prejudice from his attorney’s bad advice because it would
    have been error for the trial court to dismiss the DUI charge
    on double jeopardy grounds. Indeed, the State devoted
    14 pages of its 33-page opening brief to the subject. To
    address this argument, our panel had to determine whether
    the State was correct that the Double Jeopardy Clause did
    not apply on the facts presented. And because the Nevada
    Supreme Court held on direct appeal that Anderson had no
    ANDERSON V. NEVEN                       7
    viable double jeopardy claim, we necessarily had to
    determine whether that conclusion was proper.
    In the panel disposition, we explained that the Nevada
    Supreme Court incorrectly decided a federal constitutional
    question: whether it would violate the Fifth Amendment’s
    Double Jeopardy Clause to try Anderson on the charge of
    DUI causing death after he had already been convicted of
    failure to yield. Our conclusion was a function of the unique
    nature of the offense with which Anderson was charged.
    Under Nevada law, the crime of DUI causing death has as
    an element that the defendant “d[id] any act or neglect[ed]
    any duty imposed by law.” Nev. Rev. Stat. § 484C.430(1).
    To satisfy that element in this case, the criminal information
    alleged that Anderson “did neglect his duty imposed by law
    to yield from a stop sign to oncoming traffic.” In other
    words, to establish a necessary element of the crime, the
    prosecution intended to prove that Anderson had committed
    the Nevada offense of failure to yield—the very same
    offense for which Anderson had already been prosecuted and
    convicted.
    By requiring the commission of a predicate offense as an
    element of the crime, the Nevada offense of DUI causing
    death operated in the same manner as a charge of felony
    murder. Under the Double Jeopardy Clause, a defendant
    who has been convicted of, for example, felony murder
    based on robbery cannot be separately charged with the same
    underlying robbery, and vice versa. Harris v. Oklahoma,
    
    433 U.S. 682
    , 682 (1977) (per curiam) (“When, as here,
    conviction of a greater crime, murder, cannot be had without
    conviction of the lesser crime, robbery with firearms, the
    Double Jeopardy Clause bars prosecution for the lesser
    crime, after conviction of the greater one.”). So too here.
    Having convicted Anderson of failure to yield, the Double
    8                      ANDERSON V. NEVEN
    Jeopardy Clause barred the State from turning around and
    trying him on a charge of DUI causing death that relied on
    that same failure-to-yield offense to satisfy a necessary
    element of the crime.
    Anderson therefore had a viable double jeopardy claim,
    and the state court would have been correct to dismiss the
    charge. Yet by heeding his attorney’s erroneous advice and
    pleading guilty, Anderson was instead sentenced to up to
    twenty years in prison. This was textbook ineffective
    assistance of counsel. 1
    II.
    Next, the dissent asserts that the panel failed to defer to
    the Nevada Supreme Court on a question of state law.
    Dissent at 26–28. This is not true for the simple reason that
    the Nevada Supreme Court never decided a state law
    question. The Nevada Supreme Court’s brief double
    jeopardy discussion, which relied primarily on United States
    Supreme Court cases, did not adjudicate any questions of
    state law but instead (mis)applied federal double jeopardy
    doctrine. One need only read the relevant passage to see if,
    as the dissent posits, Dissent at 28, the Nevada Supreme
    Court was “interpret[ing] . . . the elements of Nevada
    criminal law”:
    A claim that a conviction violates the Double
    Jeopardy Clause generally is subject to de
    1
    Again, I emphasize that the panel analyzed the double jeopardy
    issue only to respond to the State’s argument that Anderson suffered no
    prejudice from his attorney’s bad advice. It is not clear how the dissent
    thinks the panel could have addressed this argument—to which the State
    devoted almost half of its opening brief—without determining how the
    Double Jeopardy Clause applied in the context of this case.
    ANDERSON V. NEVEN                      9
    novo review on appeal.” Davidson v. State,
    
    124 Nev. 892
    , 896, 
    192 P.3d 1185
    , 1189
    (2008). Failure to yield is not a lesser-
    included offense of DUI causing death
    because each requires proof of an element the
    other does not “notwithstanding a substantial
    overlap in the proof offered to establish the
    crimes.” Brown v. Ohio, 
    432 U.S. 161
    , 166
    (1977)      (internal    quotation     omitted).
    Therefore, convictions for both do not violate
    the proscriptions against double jeopardy.
    See Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932) (establishing an elements
    test for double jeopardy purposes); Jackson
    v. State, 128 Nev. —, —, 
    291 P.3d 1274
    ,
    1278 (2012), petition for cert. filed,
    81 U.S.L.W. (U.S. Mar. 5, 2013) (No. 12-
    9118); see also State of Nevada v. Eighth
    Judicial Dist. Court, 
    116 Nev. 127
    , 135 &
    136 n. 7, 
    994 P.2d 692
    , 697 & n. 7 (2000)
    (DUI and “traffic code infractions occurring
    during the same driving episode” each
    require proof of an element the other does not
    and are not the same offenses under
    Blockburger). We conclude that the district
    court did not err by rejecting Anderson’s
    claim or abuse its discretion by denying his
    motion to dismiss. See Hill v. State, 
    124 Nev. 546
    , 550, 
    188 P.3d 51
    , 54 (2008) (we review
    a district court’s denial of a motion to dismiss
    for an abuse of discretion).
    Anderson v. State, 
    129 Nev. 1095
    , 
    2013 WL 5338521
    , at *1
    (2013) (table).
    10                  ANDERSON V. NEVEN
    It is plain from this short paragraph that the Nevada
    Supreme Court was not holding forth on the elements of the
    state failure-to-yield and DUI-causing-death offenses.
    Instead, it opined that the fact that each offense “require[d]
    proof of an element the other does not,” was enough, on its
    own, to establish that there was no double jeopardy
    violation. 
    Id.
     As the Supreme Court’s decision in Harris
    illustrates, however, it was this analysis of federal law that
    was incorrect. The felony murder and robbery with firearms
    charges in Harris also each required proof of an element the
    other does not; felony murder does not require a showing
    that the defendant committed robbery—it can be predicated
    on any number of felonies—and robbery does not require a
    killing. See Harris, 
    433 U.S. at 682
    . But the Court
    nevertheless concluded that because, in that case, the
    defendant had been convicted of felony murder predicated
    on robbery with firearms, the Double Jeopardy Clause
    barred a successive prosecution for the same robbery with
    firearms offense. 
    Id.
    The Nevada Supreme Court failed to appreciate that the
    same principle applied in this case, because, as charged here,
    the DUI causing death charge had, as an element, that
    Anderson committed the offense of failure to yield (for
    which he had already been separately convicted). This was
    an error of federal law, not state law, and thus the panel
    disposition correctly concluded that our court was not
    required to defer to the state court’s decision.
    III.
    Finally, the dissent argues that the DUI causing death
    charge did not actually require proof of a predicate criminal
    offense, and that the neglect of legal duty element could—at
    least “possibly”—be satisfied by a showing of simple
    negligence. Dissent at 30. And it advances its own novel
    ANDERSON V. NEVEN                         11
    theory that because the failure-to-yield offense “imposes two
    separate duties on drivers,” whereas DUI causing death only
    requires the neglect of one duty for its predicate, the two
    crimes cannot overlap to violate the Double Jeopardy
    Clause.
    It is enough to say that all of this would be news to the
    State, which has never advanced any such arguments—not
    in the district court, not in its merits briefs on appeal, and not
    in its petition for rehearing en banc. It is quite remarkable
    that at the same time our dissenting colleague accuses the
    panel of showing a lack of respect for state courts, he appears
    to himself assume that Nevada’s own attorneys do not
    understand the meaning of the state’s criminal statutes. In
    any event, we are limited to the arguments raised by the
    parties, and thus the dissent’s sua sponte adventure through
    Nevada law is not before us. United States v. Sineneng-
    Smith, 
    140 S. Ct. 1575
    , 1579 (2020).
    *    *    *
    The panel decision was entirely correct. And a majority
    of active judges decided that our unpublished, non-
    precedential disposition was not worthy of en banc review.
    I concur in that decision.
    VANDYKE, Circuit Judge, joined by BUMATAY, Circuit
    Judge, dissenting from denial of rehearing en banc:
    Federal habeas review of state court criminal convictions
    implicates well-known federalism and comity concerns,
    which is why both Congress and the United States Supreme
    Court have repeatedly stressed the carefully delimited and
    extraordinarily deferential nature of such review. Our
    12                  ANDERSON V. NEVEN
    court’s decision in Anderson v. Neven, 797 F. App’x 293
    (9th Cir. 2019) goes far beyond those clear limits—in
    multiple ways. The decision is deeply disrespectful to our
    state court brethren, usurping their authority and improperly
    criticizing their rationale, all mixed with our court’s own
    legal errors of both federal and state law that can only add
    insult to injury. Federal habeas relief from state criminal
    convictions exists to remedy only the most “extreme
    malfunctions in the state criminal justice systems.”
    Harrington v. Richter, 
    562 U.S. 86
    , 102 (2011) (citation
    omitted). There were no “extreme malfunctions” in
    Anderson’s state court proceedings. But this court’s
    decision multiplies them.
    First, and perhaps most troubling, the panel tutored the
    Nevada Supreme Court on the elements of Nevada state
    criminal offenses. Yet as the United States Supreme Court
    has said again and again, not even it may second-guess state
    courts on the elements of state criminal law. And here, the
    Nevada Supreme Court’s broad statement that, in Nevada,
    “[f]ailure to yield is not a lesser-included offense of DUI
    causing death because each requires proof of an element the
    other does not,” Anderson v. State, 
    129 Nev. 1095
    , 1095
    (2013), is not only unmistakably clear; it is quite defensible,
    as explained below.
    Second, the panel’s conclusion that the Nevada Supreme
    Court erroneously explicated Nevada’s criminal law and, by
    extension, its double jeopardy analysis, completely
    undercuts the panel’s conclusion on the only claim actually
    raised in Anderson’s federal habeas petition: that his trial
    counsel was ineffective because he advised Anderson to
    plead guilty and then raise his double jeopardy claim on
    appeal. If the panel was right that the Nevada Supreme
    Court got the double jeopardy question wrong, then
    ANDERSON V. NEVEN                         13
    Anderson was prejudiced—not, of course, by his trial
    counsel advising him to present that claim to the Nevada
    Supreme Court—but rather by the Nevada Supreme Court
    getting it wrong. But as Anderson has acknowledged again
    and again, he does not challenge the Nevada Supreme
    Court’s decision in his federal habeas petition. The panel’s
    inappropriate criticism of the Nevada Supreme Court’s
    double jeopardy analysis eviscerates Anderson’s ineffective
    assistance of counsel claim—the only claim properly before
    this court.
    These are serious errors, and they are fatal to the panel’s
    conclusion. But the circular inconsistency at the heart of the
    panel’s decision is just the beginning. The panel’s decision,
    short as it is, is predicated on nested, inescapable errors, each
    of which is independently fatal to its conclusion. The
    decision is indefensible and, as described below and
    confirmed by the panel’s concurrence in denial of rehearing
    en banc, trying to justify it is like reading a choose-your-
    own-adventure novel based on The Oregon Trail where,
    regardless of which path you choose, the story always ends
    in disaster and everyone perishes from dysentery.
    Background
    1. Facts
    High on marijuana, Joseph Anderson ran a stop sign
    causing a collision that killed another driver. On January 19,
    2012, the State charged Anderson with Driving Under the
    Influence of a Controlled Substance thereby Causing Death
    to Another, a felony. The complaint stated that Anderson
    “while under the influence of . . . Marijuana . . . did willfully
    and unlawfully drive . . . neglect[ing] his duty imposed by
    law to yield from a stop sign[,] . . . proximately caus[ing] []
    Death to another.” The next day, the State charged Anderson
    14                     ANDERSON V. NEVEN
    in a subsequent complaint with three misdemeanors: Count
    I: Vehicle Entering Intersection Marked “Stop” or “Yield”;
    Count II: Driving without a Valid License; and Count III:
    Security for Payment of Tort Liabilities Required. The State
    filed both complaints in the Pahrump Justice Court on the
    same day, January 23, 2012. 1
    2. Procedural History
    A. Pahrump Justice Court & Nevada District Court
    On May 9, 2012, at a pre-trial hearing in justice court for
    both complaints, upon trial counsel’s advice Anderson pled
    no-contest or guilty to all of the misdemeanor charges,
    including the failure-to-yield charge. On June 8, 2012, the
    justice court transferred the remaining felony case to the
    Nevada district court. Pursuant to his plan, counsel then
    filed a motion to dismiss the felony complaint on double
    jeopardy grounds, reasoning that Anderson’s guilty plea to
    the failure-to-yield misdemeanor barred his prosecution for
    the felony DUI charge. The Nevada district court denied the
    motion to dismiss, explaining that “it is possible for a
    defendant to meet the legal duty element of the statute [DUI
    causing death] by violating any number of rules of the road.”
    But the court emphasized (literally) that “IF THE STATE IS
    UNABLE TO PROVE ANY VIOLATION OF LEGAL
    DUTY AT TRIAL OTHER THAN THE FAILURE TO
    STOP, THEN THIS CASE WILL BE DISMISSED.”
    1
    The misdemeanor and felony charges could not be tried together
    under Nevada law. 
    Nev. Rev. Stat. Ann. § 4.370
    (3) (“Justice courts have
    jurisdiction of all misdemeanors and no other criminal offenses except
    as otherwise provided by specific statute.”). But felonies may begin
    adjudication in a justice court as “justice courts have jurisdiction to
    conduct preliminary examinations in felony complaints.” Koller v. State,
    
    130 P.3d 653
    , 656 (Nev. 2006).
    ANDERSON V. NEVEN                       15
    Taking the hint, trial counsel entered a conditional guilty
    plea agreement with the State on the felony DUI charge that
    preserved “the right to appeal this Court’s ruling on the
    jeopardy issue” and dismissed two other charges—a felony
    and a misdemeanor—“as a consequence of [the]
    negotiation.” The Nevada district court then entered
    judgment convicting Anderson of the felony DUI charge,
    and sentenced Anderson to a maximum term of 240 months.
    Trial counsel appealed the conviction on double jeopardy
    grounds to the Nevada Supreme Court.
    B. Nevada Supreme Court Decision on the Merits
    On appeal, the Nevada Supreme Court examined
    whether the misdemeanor and felony statutes contained the
    same elements and whether the Nevada Legislature intended
    to prohibit concurrent convictions of both statutes.
    Anderson, 129 Nev. at 1095. The Nevada Supreme Court
    concluded, consistent with precedent, that the Legislature
    intended that “convictions for each of the [“rules of the road”
    and “driving while intoxicated”] offenses [were] not []
    impermissibly redundant.” Nevada v. Eighth Jud. Dist. Ct.,
    
    994 P.2d 692
    , 699 (Nev. 2000)), see Anderson, 129 Nev.
    at 1095. Then applying the elements test from Blockburger
    v. United States, 
    284 U.S. 299
    , 304 (1932) to the specifics of
    the Nevada laws before it, the Nevada Supreme Court held
    “[f]ailure to yield is not a lesser-included offense of DUI
    causing death because each requires proof of an element the
    other does not . . . .” Anderson, 129 Nev. at 1095.
    Anderson’s trial counsel filed a petition for rehearing,
    which the Nevada Supreme Court denied.
    16                     ANDERSON V. NEVEN
    C. Anderson’s State Habeas Petition
    Anderson then filed a petition for Writ of Habeas Corpus
    in the Nevada district court alleging ineffective assistance of
    counsel. Anderson alleged he did not receive effective
    assistance during the plea process because his trial counsel
    recommended a guilty plea rather than going to trial,
    rendering Anderson’s double jeopardy claim premature. 2
    Anderson also alleged that trial counsel was ineffective
    because he did not familiarize himself with relevant law
    when counsel recommended Anderson pursue a double
    jeopardy strategy. Anderson reasoned that because the
    Nevada Supreme Court ultimately held that the failure-to-
    yield misdemeanor was not a lesser-included offense of the
    felony DUI, “NO Double Jeopardy claim was available”
    from the outset. Notably, Anderson did not challenge the
    Nevada Supreme Court’s merits ruling. The Nevada district
    court denied Anderson’s petition.
    i. Nevada Supreme Court Adjudication
    Anderson appealed the denial of his habeas petition to
    the Nevada Supreme Court. That court evaluated the
    petition under Strickland v. Washington, which required
    Anderson to demonstrate that his trial counsel’s performance
    was unreasonably deficient resulting in prejudice such that,
    but for counsel’s errors, the result for Anderson would have
    been different. 
    466 U.S. 668
    , 697 (1984). The Nevada
    Supreme Court determined Anderson did not allege either
    that he rejected a more favorable plea offer or that he would
    2
    This argument was factually inconsistent with that actually
    happened in Anderson’s case. The Nevada Supreme Court did not hold
    that Anderson’s claim was premature; quite the opposite, it treated
    Anderson’s double jeopardy claim as ripe and addressed it on the merits.
    See Anderson, 129 Nev. at 1095.
    ANDERSON V. NEVEN                        17
    have insisted on going to trial were it not for his trial
    counsel’s advice. The court further noted that Anderson
    received as a benefit of his guilty plea the dismissal of two
    other cases distinct from the failure-to-yield misdemeanor
    complaint and DUI causing death felony complaint. The
    Nevada Supreme Court declined to find Anderson’s trial
    counsel ineffective and affirmed the lower court’s denial of
    his petition.
    D. Federal District Court Habeas Petition
    Anderson then filed a federal habeas petition again
    alleging ineffective assistance of counsel on the same
    grounds as his failed state habeas petition. This time,
    however, Anderson added that he would have insisted on a
    trial—and not entered a plea deal—if he had known the
    double jeopardy defense was unavailable. He still did not
    challenge the Nevada Supreme Court’s decision to reject his
    double jeopardy defense.
    The federal district court noted that to succeed, Anderson
    must prove that the Nevada Supreme Court’s denial of his
    state habeas petition was objectively unreasonable and
    clearly erroneous. The district court also acknowledged that
    the Nevada Supreme Court used the correct Strickland
    standard in evaluating the petition.
    In analyzing Anderson’s claim, the district court
    considered it significant that, after the Nevada Supreme
    Court rejected Anderson’s double jeopardy appeal, his trial
    counsel wrote Anderson “admitting that he gave poor advice
    and that he regretted it.” Opining that that “going to trial was
    clearly the more advantageous choice,” the district court
    explained that Anderson “was woefully let down when his
    conviction was affirmed because—not surprisingly—
    jeopardy had not yet attached.”
    18                  ANDERSON V. NEVEN
    The district court summarily rejected that Anderson
    received any real benefit from the State’s dismissal of the
    two charges, as Anderson likely would have been “grant[ed]
    probation” for one, while the other simply “was a
    misdemeanor.” The district court ultimately concluded that
    the Nevada Supreme Court’s review of Anderson’s state
    habeas petition had “failed to consider the likelihood of
    success that Anderson would have had at trial on his double-
    jeopardy defense,” (emphasis added), and granted habeas
    relief on Anderson’s ineffective assistance claim.
    i. Second Federal District Court Order
    The State asked the district court to reconsider its order,
    explaining that, contrary to the basis for the court’s grant of
    habeas relief, the Nevada Supreme Court actually had
    addressed Anderson’s double jeopardy claim on the merits,
    and rejected it. This did not sway the district court, but the
    court did attempt to shore up its factually flawed basis for
    habeas relief in an order denying reconsideration.
    In this second order, the district court concluded that the
    Nevada Supreme Court’s double jeopardy ruling applied
    United States Supreme Court precedent incorrectly, but in so
    arguing the district court incorrectly relied on language from
    a plurality decision it referred to as “the Court in Dixon.”
    The district court further acknowledged that “there is a
    possibility that the State would have been able to prove a
    different predicate offense [at trial] for the felony DUI
    charge against Anderson,” but because “there is also [a]
    probability that it would not have been able to do so[,] that
    is sufficient to undermine the outcome of Anderson’s
    criminal proceeding.” The court afforded no deference to
    Anderson’s counsel’s weighing of these possibilities, or
    Strickland’s admonition that petitioners claiming ineffective
    assistance of counsel must show that the likelihood of a
    ANDERSON V. NEVEN                      19
    different result is “substantial.” Rather, the court concluded
    that the “reasonable probability” that Anderson might have
    prevailed at trial on a double jeopardy defense was enough
    to establish prejudice to Anderson under Strickland. The
    district court did not attempt to connect its new analysis to
    the actual arguments in Anderson’s federal habeas petition,
    and “decline[ed] to reconsider [its] prior ruling.”
    E. Ninth Circuit Panel Memorandum Disposition
    The State appealed to this court. The panel, like the
    federal district court, did not address the habeas claims as
    actually pled by Anderson—that jeopardy did not attach or
    that trial counsel should have known the Nevada Supreme
    Court would not find a double jeopardy violation. Instead,
    the panel joined the district court in concluding that the
    outcome on the double jeopardy claim likely would have
    changed under Nevada law if Anderson had gone to trial on
    the felony DUI charge. See Anderson v. Neven, 797 F.
    App’x 293, 294–95 (9th Cir. 2019).
    The panel explained that although “the ‘does any act or
    neglects any duty imposed by law’ element of the DUI
    offense” could have been established “through some
    predicate other than the failure-to-yield offense . . . . the
    record is devoid of any evidence regarding any other theory
    upon which the State could have satisfied this element at
    trial.” Id. Thus, “[t]he mere possibility that the State may
    have been able to rely on an alternate predicate offense does
    not negate Anderson’s showing of likely success” in his
    double jeopardy defense at or after trial. Id. at 295.
    Accordingly, the panel agreed with the federal district court
    that “no reasonable attorney would have advised Anderson”
    to plead guilty rather than go to trial because there was “a
    high likelihood that he would have been able to raise the
    20                  ANDERSON V. NEVEN
    double-jeopardy defense successfully” at trial. Id. at 294
    (alteration marks omitted).
    The obvious problem with the panel’s conclusion that
    Anderson might have prevailed in the state trial court on his
    double jeopardy claim is, “so what?” Given the Nevada
    Supreme Court’s rejection of Anderson’s double jeopardy
    claim on direct appeal, there is no reason to think the Nevada
    Supreme Court would have reached a different conclusion if
    Anderson had gone to trial, if the prosecution had not
    amended the charges (a big “if,” given the trial court’s
    emphatic direction to do so), and if Anderson had prevailed
    in trial court. But the panel had a response: the Nevada
    Supreme Court was wrong. More specifically, the Nevada
    Supreme Court’s explanation about Nevada law was right
    generally, but not “in Anderson’s particular case.” Id.
    at 295 (emphasis in original).
    What the panel never explained is why this matters for
    the only claim that Anderson made in this federal habeas
    action: ineffective assistance of trial counsel. The panel’s
    inquiry into the merits of the Nevada Supreme Court’s
    decision resulted in an irreconcilable contradiction in its
    Strickland analysis: that trial counsel was ineffective
    because he predicted the Nevada Supreme Court would rule
    precisely the way the panel believed it should have ruled.
    Under the panel’s theory of the case, what actually stymied
    trial counsel’s able strategy was not any error by counsel, but
    rather the Nevada Supreme Court’s misunderstanding of
    how Nevada law worked “in Anderson’s particular case.”
    Id. (emphasis in original). And Anderson never challenged
    the Nevada Supreme Court’s decision. This inherent
    contradiction is never addressed in the panel’s decision or its
    concurrence in denial of rehearing en banc.
    ANDERSON V. NEVEN                      21
    Standard of Review
    State supreme courts are the final arbiters of state law.
    Principles of federalism dictate that federal courts overturn
    state court convictions under AEDPA only in the limited
    instances where the adjudicated outcome “resulted in a
    decision that was contrary to, or involved unreasonable
    application of, clearly established Federal law.” 
    28 U.S.C. § 2254
    (d)(1). Supreme Court precedent should not be
    framed at “a high level of generality” such that “a lower
    federal court could transform even the most imaginative
    extension of existing case law into ‘clearly established
    Federal law.’” Nevada v. Jackson, 
    569 U.S. 505
    , 512 (2013)
    (citation omitted). For a State court decision to be
    overturned, it must arrive at a conclusion “opposite to that
    reached by [the Supreme] Court on a question of law or if
    the state court decides a case differently than [the Supreme]
    Court has on a set of materially indistinguishable facts.”
    Williams v. Taylor, 
    529 U.S. 362
    , 413 (2000). Even if a
    Supreme Court case addressed a similar topic or type of case,
    the step of extending a rationale drawn from Supreme Court
    precedent means such rationale, “by definition,” is not
    clearly established law. White v. Woodall, 
    572 U.S. 415
    , 426
    (2014). State courts need not cite or be aware Supreme
    Court precedent to ensure deferential review. Early v.
    Packer, 
    537 U.S. 3
    , 8 (2003).
    When evaluating ineffective assistance claims, counsel’s
    deficient performance must result in errors so far below the
    objective standard of reasonableness that, but for the errors,
    the outcome would have been different. Strickland, 
    466 U.S. at 687
    ; Hill v. Lockhart, 
    474 U.S. 52
    , 59 (1985). The
    petitioner must prove “both deficient performance and
    prejudice.” Bell v. Cone, 
    535 U.S. 685
    , 695 (2002). Given
    that “[v]irtually every act or omission of counsel” would
    22                  ANDERSON V. NEVEN
    have “some conceivable effect on the outcome of the
    proceeding,” Strickland, 
    466 U.S. at 693
    , petitioners must
    show the likelihood of a different result is “substantial.” 
    Id. at 682
    . In weighing counsel’s performance against an
    adverse court ruling, “[t]he assessment of prejudice should
    proceed on the assumption that the decisionmaker is
    reasonably, conscientiously, and impartially applying the
    standards that govern the decision.” 
    Id. at 695
    . Ultimately,
    given “the strong presumption of competence,” review is
    “doubly deferential” when a counsel’s performance is
    viewed through the lens of both 
    28 U.S.C. § 2254
    (d) and
    Strickland. Cullen v. Pinholster, 
    563 U.S. 170
    , 190 (2011)
    (citation omitted).
    We review grants of habeas relief de novo. Bradford v.
    Davis, 
    923 F.3d 599
    , 609 (2019).
    Discussion
    1. The State-Law Basis for the Nevada Supreme
    Court’s Double Jeopardy Decision Binds this Court
    and Does Not Violate Federal Law.
    The panel’s disposition and concurrence compound
    errors. We’ll start with the obvious ones.
    A. The Panel Improperly Addressed an Unraised
    Claim.
    The panel should not have addressed the merits of the
    Nevada Supreme Court’s double jeopardy decision because
    Joseph Anderson never challenged it. See Cacoperdo v.
    Demosthenes, 
    37 F.3d 504
    , 507 (9th Cir. 1994) (observing
    the court cannot resolve claims that were not properly raised
    in the habeas petition). Anderson conceded in his appellate
    brief that “[t]he Nevada Supreme Court’s ruling on the direct
    ANDERSON V. NEVEN                      23
    appeal is irrelevant.” As recently as oral argument,
    Anderson’s appellate counsel continued to deny that
    Anderson was challenging the merits of the underlying state
    supreme court decision. That eliminated our ability to grant
    habeas relief predicated on that decision being incorrect.
    Paradis v. Arave, 
    20 F.3d 950
    , 954 (9th Cir. 1994)
    (“Because this issue was not presented to the district court,
    we will not review it.”). That should have made this an easy
    case—for the State.
    But the panel’s disposition turns on a sua sponte
    perceived error in the Nevada Supreme Court’s double
    jeopardy decision, even though neither Anderson nor the
    State actually presented that issue. The panel in its
    concurrence now claims that “[i]t was the State that injected
    double jeopardy into this ineffective assistance of counsel
    case . . . .” Not true. The State did discuss the Nevada
    Supreme Court’s merits decision in its appellate briefing for
    two reasons, but neither justified the panel raising and
    deciding a claim that, even in its concurrence, the panel
    acknowledges was never “before our panel.”
    First, the State had to address the Nevada Supreme
    Court’s double jeopardy decision because the federal district
    court erroneously held in its first order that Anderson’s
    guilty plea resulted in a premature double jeopardy claim.
    The State explained in its briefing for rehearing before the
    district court that this was simply factually wrong because
    the Nevada Supreme Court squarely addressed (and
    rejected) Anderson’s double jeopardy claim on the merits.
    Anderson, 129 Nev. at 1095.
    Second, the State discussed the Nevada Supreme Court’s
    double jeopardy decision to rebut the district court’s false
    notion that Anderson was prejudiced by his counsel not
    going to trial because Anderson may have prevailed on his
    24                 ANDERSON V. NEVEN
    double jeopardy claim in trial court. Because the Nevada
    Supreme Court rejected Anderson’s double jeopardy claim
    on the merits, it would have made no difference if he had
    gone to trial and the trial court had dismissed his claim on
    double jeopardy grounds. If that had happened, the Nevada
    Supreme Court would have just reversed the trial court’s
    double jeopardy ruling and sent the case back. As the State
    explained in its opening brief:
    Even if Anderson had proceeded to trial on
    his felony DUI claim causing death, he would
    not have prevailed on his double jeopardy
    challenge on appeal. The federal district
    court’s assumption that going to trial would
    have created a complete defense to DUI
    causing death or resulted in a different
    analysis from the Nevada Supreme Court was
    wrong. . . . [A]s the Nevada Supreme Court
    specifically rejected the double jeopardy
    challenge on Anderson’s direct appeal, there
    would have been no difference on appeal had
    Anderson proceeded to trial rather than enter
    his guilty plea.”
    Contrary to the panel’s revisionist history, the State
    didn’t bring the Nevada Supreme Court’s merits decision
    into the case; the federal district court did, when it
    (1) erroneously ruled that Anderson’s guilty plea resulted in
    a premature double jeopardy claim, and (2) erroneously
    focused on whether Anderson might have prevailed on his
    double jeopardy claim in trial court. The State can hardly
    be faulted for responding and explaining why the district
    court’s decision was wrong. The State’s reliance on the
    Nevada Supreme Court’s double jeopardy decision as
    dooming Anderson’s chances of prevailing on that claim,
    ANDERSON V. NEVEN                                25
    whether or not he went to trial, cannot be weaponized as a
    legitimate reason for the panel to attack that decision when
    Anderson himself didn’t. See Ahlswede v. Wolff, 
    720 F.2d 1108
    , 1109 (9th Cir. 1983) (per curiam) (“[T]he only issues
    properly before this court are those in the petition.”). 3
    Moreover, even if the State had gratuitously and
    needlessly defended the merits of the Nevada Supreme
    Court’s double jeopardy decision, that still would not justify
    the panel reaching out to decide an issue that Anderson never
    raised. Federal habeas review requires the petitioner to
    frame the review through his claims. See Mannes v.
    Gillespie, 
    967 F.2d 1310
    , 1316 n.6 (9th Cir. 1992) (declining
    3
    While the panel’s concurrence erroneously claims that it was “the
    State that injected double jeopardy into this . . . case,” it is notable that
    neither the panel’s original decision nor its concurrence ever confronts
    the actual reason the State talked about the Nevada Supreme Court’s
    double jeopardy decision. That argument, block-quoted above, was that
    whether he went to trial or pled-and-immediately-appealed, Anderson’s
    double jeopardy claim was ultimately doomed because the Nevada
    Supreme Court was going to reject Anderson’s double jeopardy claim on
    the merits either way. As the State explained, “[t]he Nevada Supreme
    Court’s [double jeopardy] determination was not premised specifically
    upon a conviction pursuant to a guilty plea versus a jury trial.” Thus,
    Anderson could not have been prejudiced by his counsel’s decision to
    appeal immediately versus go to trial—the ultimate result at the Nevada
    Supreme Court would be identical.
    Like Anderson, the State’s arguments to the panel all assumed that
    the merits of the Nevada Supreme Court’s decision were not on the table
    because Anderson never challenged that decision. As the State
    explained in its opening brief to the panel: “[T]he Nevada Supreme Court
    rejected Anderson’s argument that the two crimes violated double
    jeopardy. Anderson conceded the truth of this point in . . . his federal
    habeas petition . . . .” It was only the panel that felt the need to reach out
    and “explain[] that the Nevada Supreme Court incorrectly decided”
    Anderson’s double jeopardy claim in order to justify its decision.
    26                     ANDERSON V. NEVEN
    to consider on appeal a double jeopardy claim that the
    petitioner did not raise in the original state or federal habeas
    petition). As the Supreme Court has made clear, we are
    barred from reviewing claims not included in a federal
    habeas petition. See, e.g., Davila v. Davis, 
    137 S. Ct. 2058
    ,
    2064 (2017); O’Sullivan v. Boerckel, 
    526 U.S. 838
    , 842
    (1999); Coleman v. Thompson, 
    501 U.S. 722
    , 745 (1991).
    The panel had no business reaching out and deciding
    whether the Nevada Supreme Court’s double jeopardy
    decision was correct. 4
    B. Nevada’s State Law Adjudication Binds this
    Court.
    Both the federal district court and the panel concluded
    that the Nevada Supreme Court erred in rejecting
    Anderson’s double jeopardy claim and relied on that
    conclusion in granting habeas relief. But the Nevada
    Supreme Court’s adjudication of Anderson’s double
    jeopardy appeal on the merits may not be challenged by this
    court, for two independent reasons.
    4
    The panel asks in footnote 1 of its concurrence how it “could have
    addressed . . . the State’s argument that Anderson suffered no prejudice”
    without reaching and effectively overruling the Nevada Supreme Court’s
    Double Jeopardy decision. Easy. It could have simply explained that
    Anderson’s counsel could not possibly have been ineffective for
    presenting a question to the Nevada Supreme Court that (in the panel’s
    mistaken view) the Nevada Supreme Court should have decided in
    Anderson’s favor. And because the only claim Anderson raised in this
    court was an ineffective assistance of counsel claim, his federal habeas
    claim necessarily fails. Perhaps what the panel is really asking in its
    footnote is how could it possibly have granted habeas relief to Anderson
    without sua sponte reaching out and effectively overturning the Nevada
    Supreme Court’s decision (that Anderson never challenged). Now that,
    admittedly, is a harder question.
    ANDERSON V. NEVEN                              27
    First, the panel attempted to conjure fault with the
    Nevada Supreme Court’s decision by recasting it. The
    Nevada Supreme Court held that “[f]ailure to yield is not a
    lesser-included offense of DUI causing death because each
    requires proof of an element the other does not
    ‘notwithstanding a substantial overlap in the proof offered to
    establish the crimes.’” Anderson, 129 Nev. at 1095 (quoting
    Brown v. Ohio, 
    432 U.S. 161
    , 166 (1977)). On its face, this
    is a broad and categorical statement. Yet the panel read this
    as merely a general statement that “failure to yield is not
    always a lesser included offense.” Anderson, 797 F. App’x
    at 295 (emphasis added). But that’s not what the Nevada
    Supreme Court said, and it is quite telling that the panel
    found it necessary to add words to the Nevada Supreme
    Court’s ruling to justify the panel’s forced misreading of it.
    By virtue of its reframed holding and the fact the Nevada
    Supreme Court did not include the phrase “in this case” in
    its explication of Nevada law, see Anderson, 129 Nev.
    at 1095, the panel strangely infers that the Nevada Supreme
    Court must have been speaking about statutory elements
    generally, rather than Anderson’s specifically pled offenses.
    Anderson, 797 F. App’x at 295. 5
    5
    Stranger still, the panel in its concurrence now argues that it its
    original decision could not have “failed to defer to the Nevada Supreme
    Court on a question of state law” because “the Nevada Supreme Court
    never decided a state law question.” That’s not what the panel said in its
    original decision, which states: “we defer to the Nevada Supreme Court’s
    conclusion that, as a matter of state law, failure to yield is not always a
    lesser included offense of DUI causing death.” Anderson, 797 F. App’x
    at 295 (emphasis added). The Nevada Supreme Court’s categorical
    statement that “[f]ailure to yield is not a lesser-included offense of DUI
    causing death because each requires an element the other does not,”
    Anderson, 129 Nev. at 1095 (emphasis added), cannot reasonably be read
    as anything other than “holding forth on the elements of the state failure-
    28                     ANDERSON V. NEVEN
    Only through that results-driven reading can the panel
    then claim that it is properly deferring to the Nevada
    Supreme Court’s binding interpretation of state law, while
    rejecting the state court’s supposed misapplication of clearly
    established federal law. This is a deliberately strained
    misreading of the Nevada Supreme Court’s description of
    Nevada law. Beyond the fact that one would normally read
    a court’s legal analysis in the context of the issues actually
    before the court (here, Anderson’s double jeopardy claim),
    the decision’s text expressly applies the Nevada Supreme
    Court’s reasoning to determine “the district court did not err
    by rejecting Anderson’s claim.” Anderson, 129 Nev. at 1095
    (emphasis added).
    Second, even if Anderson had challenged the Nevada
    Supreme Court’s double jeopardy ruling, that ruling turned
    squarely on that court’s interpretation of the elements of
    Nevada criminal law, which, like it or not, is binding on this
    court. Perhaps because lower federal courts seem to forget
    this, the Supreme Court has had to repeatedly “reemphasize
    that it is not the province of a federal habeas court to
    reexamine state-court determinations on state-law
    questions.” Estelle v. McGuire, 
    502 U.S. 62
    , 67–68 (1991). 6
    to-yield and DUI-causing-death offenses.” The panel was right before it
    was wrong.
    6
    See also Brown v. Ohio, 
    432 U.S. 161
    , 167 (1977) (“Ohio courts
    ‘have the final authority to interpret . . . that State’s legislation.’”);
    Illinois v. Vitale, 
    447 U.S. 410
    , 416 (1980) (“We accept, as we must, the
    Supreme Court of Illinois’ identification of the elements of the offenses
    involved here.”); Missouri v. Hunter, 
    459 U.S. 359
    , 368 (1983) (“We are
    bound to accept the Missouri court’s construction of that State’s
    statutes.”); Ohio v. Johnson, 
    467 U.S. 493
    , 499 (1984) (“We accept, as
    we must, the Ohio Supreme Court’s determination that the Ohio
    ANDERSON V. NEVEN                                29
    Even if we were allowed to slip off our federal robes and
    try on those of a state supreme court justice, the Nevada
    Supreme Court’s explication of Nevada’s criminal statutes
    was far from clearly wrong. The Nevada Supreme Court’s
    decision, like many state court decisions affirming criminal
    convictions, is not long on analysis or explanation. It need
    not be. Even so, on close inspection there is a good basis for
    thinking that the panel’s forbidden frolic with state criminal
    law interpretation managed to get both state and federal law
    wrong. 7
    We start with the text of Nevada’s DUI causing death
    statute. Section 484C.430(1) of Nevada’s revised statutes
    makes it a felony if someone drives while under the
    influence of a prohibited substance and
    Legislature did not intend cumulative punishment for the two pairs of
    crimes involved here.”).
    7
    The panel’s concurrence criticizes this next portion of the dissent
    as “advanc[ing] its own novel theory” of Nevada state law, and responds
    that “[i]t is enough to say that . . . the State . . . never advanced any such
    arguments.” Of course it didn’t. Neither Anderson nor the State ever
    challenged the Nevada Supreme Court’s double jeopardy analysis, so
    there was obviously no reason for the State (or anyone else) to defend it.
    It is only because the panel in its opinion sua sponte attacked the Nevada
    Supreme Court’s analysis that the issue has even become relevant.
    Having embarked on its own “sua sponte adventure through Nevada
    law” by expressly basing its decision on the conclusion that the Nevada
    Supreme Court erred on its explication of the elements of Nevada law
    “in Anderson’s particular case,” Anderson, 797 F. Appx. at 295
    (emphasis in original), the panel cannot now so easily ignore the disaster
    that awaits at the end of its own chosen chapter. If the panel wants to
    avoid such unpleasant surprises, it probably shouldn’t reach out and
    decide issues not raised by the parties—especially issues of state law
    where the state’s highest court has authoritatively spoken.
    30                     ANDERSON V. NEVEN
    . . . does any act or neglects any duty
    imposed by law while driving or in actual
    physical control of any vehicle on or off the
    highways of this State, if the act or neglect
    of duty proximately causes the death of, or
    substantial bodily harm to, another person
    ....
    Nev. Rev. Stat. Ann. § 484C.430(1) (emphasis added).
    While Anderson and the panel insist on speaking of this
    language as requiring a “predicate offense,” the statutory
    language does not actually require a predicate criminal
    offense to be convicted of DUI causing death. 8 It only
    requires that the defendant “neglects any duty imposed by
    law” and that that “neglect of duty proximately causes the
    death of . . . another person.” Id. The Nevada Supreme
    Court has never said this element requires a “neglect of duty
    imposed by criminal law.” To the contrary, the Nevada
    Supreme Court in discussing Nevada’s DUI causing death
    statute has elsewhere characterized the “act or neglect of
    duty” required by that statute as possibly being simply a
    “negligent act” committed while driving intoxicated. See
    State v. Johnston, 
    563 P.2d 1147
    , 1148 (Nev. 1977).
    8
    This error continues to plague the panel’s concurrence, where the
    panel claims in the very first paragraph (and continues the theme
    throughout) that Anderson’s DUI-causing-death “charging document
    specifically relied on Anderson’s failure-to-yield offense to establish”
    the neglect-of-duty element. No. The actual charging document
    mentioned neither Nevada Revised Statute § 484B.257 (Nevada’s
    failure-to-yield statute) nor Anderson’s failure-to-yield criminal
    complaint or conviction. Nor did it say anything about a “predicate
    offense”—criminal or otherwise. It simply said that Anderson “did
    neglect his duty imposed by law to yield from a stop sign to oncoming
    traffic.”
    ANDERSON V. NEVEN                        31
    Moving to the text of the “Failure to Yield” statute, it
    requires Nevada drivers to “stop . . . at a clearly marked stop
    line . . . . [and] yield the right-of-way.” Nev. Rev. Stat. Ann.
    § 484B.257(1). By both its plain text and Nevada precedent,
    the statute imposes two separate duties on drivers. Kerr v.
    Mills, 
    483 P.2d 902
    , 904 (Nev. 1971) (“NRS 484.319 [now
    NRS 484B.257] imposed . . . a duty to stop ‘at the entrance’
    to [the] road, and to yield the right of way to other vehicles
    ‘approaching so closely on such through highway as to
    constitute an immediate hazard.’”) (emphasis added)
    (citation omitted). Failure to fulfill either duty would
    constitute misdemeanor Failure to Yield. 
    Id. at 904
     (“it was
    the disfavored driver’s duty ‘not only to stop at the stop sign,
    but also to look carefully’ and permit the favored driver to
    pass”) (citation omitted).
    Because misdemeanor Failure to Yield requires the
    neglect of only one of its two discrete duties, and DUI
    Causing Death only requires the neglect of one duty for its
    predicate, the elements of the two crimes would not perfectly
    overlap to create a double jeopardy issue where the charged
    individual violated both duties. In Anderson’s case,
    Anderson both failed to stop at the stop sign and failed to
    give the right of way to oncoming traffic. The State could
    charge Anderson with neglecting either as a predicate for
    Failure to Yield, while using the other as the predicate
    “neglect of duty” for DUI Causing Death. By neglecting
    both duties under Failure to Yield, Anderson ensured in his
    specific case that two different duties could be applied under
    each charge for Failure to Yield and DUI Causing Death—
    eliminating any double jeopardy claim.
    This interpretation is completely consistent with the
    Nevada Supreme Court’s short but categorical statement in
    Anderson’s direct appeal that “[f]ailure to yield is not a
    32                  ANDERSON V. NEVEN
    lesser-included offense of DUI causing death because each
    requires proof of an element the other does not
    ‘notwithstanding a substantial overlap in the proof offered to
    establish the crimes.’” Anderson, 129 Nev. at 1095
    (emphasis added and citation omitted). It is also consistent
    with Nevada’s legislative intent, as authoritatively described
    by the Nevada Supreme Court elsewhere and cited in
    Anderson. See Jenkins v. Fourth Jud. Dist. Ct., 
    849 P.2d 1055
    , 1057 (Nev. 1993) (observing “a clear legislative intent
    to prevent defendants from escaping a conviction for felony
    DUI through pleading to a ‘lesser charge’”) (citation
    omitted).
    C. Under AEDPA, We Must Defer to the Nevada
    Supreme Court’s Interpretation of Federal Law
    Unless Inconsistent with Clearly Established
    Supreme Court Precedent.
    In order to grant habeas relief to Anderson, the panel had
    to conclude the Nevada Supreme Court decision was “an
    unreasonable application of[] clearly established Federal
    law.” 
    28 U.S.C. § 2254
    (d)(1). It is worth pausing for a
    moment to reemphasize that this next point only matters if
    (a) you indulge the fiction that the correctness of the Nevada
    Supreme Court’s double jeopardy ruling was properly before
    the panel, and (b) you believe the Nevada Supreme Court’s
    explication of the elements of the two crimes at issue in
    Anderson was unrelated to the actual case before it. Only
    adventurers who theoretically overcame those predicate
    obstacles need grapple with this additional flaw in the
    panel’s decision.
    Under AEDPA review, “clearly established Federal law”
    is supplied by Supreme Court precedent—not circuit court
    precedent—that has “squarely addresse[d]” the specific
    issue and provided a “clear answer to the question
    ANDERSON V. NEVEN                              33
    presented,” Wright v. Van Patten, 
    552 U.S. 120
    , 125–26
    (2008) (per curiam), based on “materially indistinguishable
    facts.” Lockyer v. Andrade, 
    538 U.S. 63
    , 73 (2003). Here,
    the panel block-quoted a Seventh Circuit case that “relied on
    a trio of Supreme Court cases.” Anderson, 797 F. App’x
    at 295, 295 n.1 (quoting United States v. Hatchett, 
    245 F.3d 625
    , 637 (7th Cir. 2001)). The panel presumably did not
    apply a “clearly established” rationale if it needed to rely
    upon an out-of-circuit case that cobbled together multiple
    Supreme Court cases (and separate opinions) to devise a
    rule. See Woodall, 572 U.S. at 426. “Circuit precedent
    cannot ‘refine or sharpen a general principle of Supreme
    Court jurisprudence into a specific legal rule that [the
    Supreme] Court has not announced.’” Lopez v. Smith,
    
    574 U.S. 1
    , 7 (2014) (citation omitted) (reversing because
    the Ninth Circuit applied its own precedent in affirming the
    grant of a federal habeas petition).
    The reason the panel was required to quote an out-of-
    circuit decision to support its ruling, and not the “trio of
    Supreme Court cases” directly, is because the Supreme
    Court’s fractured double jeopardy jurisprudence in this area
    cannot be fairly described as “clearly established.” 9 The
    most recent Supreme Court case addressing double jeopardy
    in the context of separate prosecutions is United States v.
    Dixon, 
    509 U.S. 688
     (1993). In it, Justice Scalia wrote a
    four-vote plurality arguing that courts should apply the
    Blockburger test to the crimes as charged (finding a double
    jeopardy violation), 
    id. at 700
    , while Chief Justice
    9
    “The Supreme Court has repeatedly warned against applying its
    precedents at too high a level of generality in determining whether a state
    court’s decision unreasonably applied clearly established federal law.”
    Turner v. McEwen, 
    819 F.3d 1171
    , 1178 (9th Cir. 2016); see also
    Jackson, 569 U.S. at 512.
    34                     ANDERSON V. NEVEN
    Rehnquist’s three-vote concurrence reasoned the Court
    should only compare the elements of the crimes (finding no
    double jeopardy violation). Id. at 714 (Rehnquist, C.J.,
    concurring in part and dissenting in part). 10 This, of course,
    only underscores why the panel’s decision in this case is
    particularly concerning—if the Supreme Court itself has
    been unable to provide a majority opinion that “squarely
    addresses” how double jeopardy should be applied to
    claimed “lesser-included” crimes in this context, then it is
    not appropriate for the Ninth Circuit to tell a state supreme
    court it has violated “clearly established” Supreme Court
    precedent.
    The panel was wrong to reach an issue never raised by
    Anderson’s federal habeas petition, and it decided wrongly
    what it wrongly reached. I hope it is not lost that all this
    wrongness happened in the context of AEDPA—where we
    are not supposed to overturn a state criminal conviction
    unless the state court was “clearly” wrong.
    2. The Panel Erred in Finding Ineffective Assistance of
    Counsel.
    Recognizing that the Nevada Supreme Court’s
    interpretation of Nevada criminal law is binding on this
    court, and that Anderson’s double jeopardy claim was
    ultimately destined to fail regardless, Anderson’s only
    habeas claim properly before this court—his ineffective
    assistance of counsel claim—evaporates. Because he never
    10
    Worse, since Hatchett the Seventh Circuit has itself
    acknowledged that “[t]he ‘lesser-included-offense’ analysis in Dixon
    included five separate opinions, all reaching different conclusions as to
    how Blockburger should apply . . . . we don’t see any federal law as
    being clearly established from that five-way divide.” Boyd v. Boughton,
    
    798 F.3d 490
    , 500 (7th Cir. 2015) (emphasis added).
    ANDERSON V. NEVEN                            35
    challenged the Nevada Supreme Court’s double jeopardy
    ruling, Anderson created for himself a classic catch-22: if the
    Nevada Supreme Court’s double jeopardy ruling was wrong,
    his trial counsel’s decision to plead guilty and immediately
    appeal the double jeopardy issue was hardly ineffective. On
    the other hand, if the Nevada Supreme Court’s double
    jeopardy ruling was correct and Anderson was ultimately
    bound to lose his double jeopardy argument on appeal
    whether he went to trial or not, then by pleading guilty he at
    least bought dismissal of two of the State’s claims.
    Anderson’s catch-22 lurks beneath the surface of every
    available path in the panel’s chose-your-own-adventure
    saga, and is the reason why all paths end badly. It is the
    reason why the panel felt compelled, in its short
    memorandum disposition, to try to escape this dilemma by
    concluding the Nevada Supreme Court was wrong. 11
    A. Analyzing Trial Counsel’s Actions
    Anderson claims, and the federal district court and panel
    agreed, that the state district court’s denial of his pre-plea
    motion to dismiss his felony DUI charge foreshadowed a
    successful double jeopardy claim. See Anderson, 797 F.
    App’x at 294–95. But Anderson’s trial counsel also
    recognized that the State was on notice, via all-caps lettering
    in the Nevada district court’s opinion, that “IF THE STATE
    IS UNABLE TO PROVE ANY VIOLATION OF LEGAL
    11
    The panel seems to have recognized this problem at oral argument
    when it asked: “Why didn’t you file, in your habeas petition, another
    claim challenging the Nevada Supreme Court’s assertion that double
    jeopardy didn’t apply?” See Anderson v. Neven, No. 18-16502, UNITED
    STATES COURTS FOR THE NINTH CIRCUIT (Nov. 13, 2019),
    https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000016
    553 (17:33–17:46).
    36                  ANDERSON V. NEVEN
    DUTY AT TRIAL OTHER THAN THE FAILURE TO
    STOP, THEN THIS CASE WILL BE DISMISSED.”
    (emphasis added). Counsel likewise knew, as the State
    alleged in multiple filings, that the State could change (and,
    per the Nevada district court, should change, the specific
    neglect-of-duty element charged before or during trial. See
    Nev. Rev. Stat. Ann. § 484C.430(1) (requiring “any act” or
    any other neglected duty). If this had happened, Anderson
    risked a jury conviction for all charged offenses and losing
    the ability to appeal any plausible double jeopardy claim.
    Counsel wisely urged Anderson to plead no-contest to the
    failure-to-yield charge and subsequently plead guilty to the
    DUI felony charge, “locking in” the predicate offense such
    that the State could not change the underlying type of
    violation of legal duty. This gave Anderson his best chance
    at getting his felony DUI charge dismissed on double
    jeopardy grounds. It was a good strategy—probably the best
    available under the circumstances.
    Justifiably hoping to benefit from the Nevada district
    court’s explicit warning to the State, Anderson’s trial
    counsel “locked in” the basis for his double jeopardy claim
    and appealed to the Nevada Supreme Court. That court
    directly considered and rejected his double jeopardy
    argument based on its interpretation of the elements of the
    two state criminal offenses charged. Anderson, 129 Nev.
    at 1095. Given the Nevada Supreme Court’s binding
    interpretation of the elements of failure-to-yield and DUI
    causing death, there is no way Anderson could have
    prevailed on his double jeopardy claim. He either would
    have pled, appealed, and lost, or he would have gone to trial,
    perhaps won a dismissal (if the State didn’t change its
    complaint), but lost on appeal anyway. Either way, his
    double jeopardy claim was destined to fail under Nevada
    law.
    ANDERSON V. NEVEN                        37
    Anderson’s trial counsel was only even potentially
    ineffective if the Nevada Supreme Court’s double jeopardy
    decision is wrong and reviewable. Of course, when the
    Nevada Supreme Court addressed the merits of Anderson’s
    double jeopardy claim, it found, as a matter of state law, that
    “[f]ailure to yield [was] not a lesser included offense of DUI
    causing death . . . .” Anderson, 129 Nev. at 1095. But that
    doesn’t mean Anderson’s counsel was ineffective—it just
    means he rolled the dice on Nevada law and didn’t get the
    interpretation of state law he was hoping for. Even if the
    Nevada Supreme Court erred (as a matter of state or federal
    law), he wasn’t ineffective. The Nevada Supreme Court’s
    double jeopardy decision (which Anderson doesn’t
    challenge), not his trial counsel’s strategy, is what deprived
    Anderson of victory. Whether the Nevada Supreme Court
    was right or wrong, the central claim of Anderson’s petition
    fails: his trial counsel made a legitimate and understandable
    litigation decision and there was no prejudice from counsel’s
    actions under either outcome. Richter, 
    562 U.S. at 104
    .
    B. Applying Strickland
    The panel ignored the “strong presumption” that trial
    counsel’s actions reflect “tactics rather than ‘sheer neglect.’”
    Richter, 
    562 U.S. at 109
     (citation omitted). Counsel’s
    actions here, calibrated by both the Nevada district court’s
    ruling and his understanding of the law, were not neglectful.
    Strickland, 
    466 U.S. at 687
    . The only way Anderson could
    have been prejudiced by trial counsel’s plead-then-appeal
    strategy would be if counsel had waived the right to appeal
    on double jeopardy grounds or the Nevada Supreme Court
    had denied the double jeopardy claim because jeopardy had
    not yet attached. But the record is clear: trial counsel
    preserved the right to appeal, the Nevada Supreme Court
    believed jeopardy had attached, and addressed his claim on
    38                  ANDERSON V. NEVEN
    the merits (just not the way Anderson would have liked).
    Anderson, 129 Nev. at 1095. To hold that “no reasonable
    attorney would have advised Anderson in this manner,”
    Anderson, 797 F. App’x at 294, is based on at least two false
    assumptions.
    The first is that the ultimate result would have been
    different if Anderson had gone to trial, notwithstanding the
    Nevada Supreme Court’s categorical denial of Anderson’s
    double jeopardy claim. The panel’s and federal district
    court’s fixation on how the state trial court would have
    handled the double jeopardy claim absent the plea is
    inexplicably myopic. Anderson’s double jeopardy claim
    ultimately rose or fell based on how the Nevada Supreme
    Court interpreted the elements of Nevada law, not the state
    trial court.
    The panel decision’s second false assumption is that the
    prosecution would have ignored the pointed, emphatic
    rhetoric from the Nevada district court and blithely pursued
    a course destined to fail in the lower court (but, as we all now
    know, destined to prevail on appeal). Again, the only bases
    for that assumption are a lack of imagination and a
    misreading of the DUI causing death statute. To his credit,
    Anderson’s trial counsel did not lack imagination, and took
    swift action to “lock in” failure-to-yield as the element, thus
    ensuring the best double jeopardy case possible for
    Anderson on appeal to the Nevada Supreme Court. As the
    Supreme Court has repeated, our “adversary system requires
    deference to counsel’s informed decisions [and] strategic
    choices must be respected.” Strickland, 
    466 U.S. at 681
    ; see
    also Richter, 
    562 U.S. at 109
     (“The Court of Appeals erred
    in dismissing strategic considerations like these as an
    inaccurate account of counsel’s actual thinking.”).
    ANDERSON V. NEVEN                       39
    CONCLUSION
    Sometimes tension exists between justice for criminal
    defendants and adherence to the strict limits of federal
    habeas review of state court convictions. This is not one of
    those cases. Joseph Anderson killed someone after running
    a stop sign while driving under the influence of marijuana.
    He got very effective assistance from his trial counsel, the
    Nevada Supreme Court made its ruling on the elements of
    Nevada criminal law, and the federal courts granted federal
    habeas relief. Only the latter is clearly wrong, and this court
    should have taken this case en banc to fix it.
    The panel’s concurrence in denial of rehearing en banc
    essentially asks why I’m making such a big deal since its
    decision was just an “unpublished memorandum
    disposition” and doesn’t “present a ‘question of exceptional
    importance.’” Respectfully, federalism is exceptionally
    important. So too is strict adherence to our limited review
    of state court convictions. Our court ventured out to decide
    a claim Anderson never raised, casually rejected the state
    court’s binding interpretation of state law, and now has
    doggedly refused to fix its own mistakes. That should be
    quite troubling to everyone—not least to our court. If, as the
    panel claims, this case is no different than “the hundreds of
    habeas petitions our court adjudicates every year,” then yes,
    we have, in fact, “mounted a full-on federal takeover of the”
    state criminal justice systems in our circuit, and we need to
    stop.
    * * *
    This case has layers of irony. The panel accused the
    Nevada Supreme Court of muddling its double jeopardy
    analysis, but in doing so it muddled its own ineffective
    assistance of counsel analysis. The panel sought to correct
    40                  ANDERSON V. NEVEN
    the Nevada Supreme Court’s misguided interpretation of the
    elements of Nevada criminal law, and in doing so incorrectly
    read Nevada’s criminal statutes and incorrectly ignored
    well-established federal authority recognizing state courts as
    the final arbiters of state law. And the panel concluded that
    “no reasonable attorney would have advised Anderson” to
    plead guilty and appeal his double jeopardy claim, Anderson,
    797 F. App’x at 294, when arguably no fully informed,
    reasonable attorney would have advised otherwise.
    Ironies notwithstanding, “I doubt the Supreme Court will
    be amused.” Tarango v. McDaniel, 
    837 F.3d 936
    , 954 n.3
    (9th Cir. 2016) (Rawlinson, J., dissenting). At least I hope
    not. This court menaces federalism when it cavalierly
    vacates state court convictions that aren’t even close calls
    under AEDPA. This case is a particularly glaring example
    of that. The Supreme Court has provided us “many rebukes”
    for such behavior. 
    Id.
     Because this deeply flawed decision
    presented an easy opportunity to fix our most egregious
    habeas overreaching, and we failed to do so, I respectfully
    dissent.