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Convictions for both bail jumping and an offense underlying the bail jumping don’t violate Double Jeopardy Clause

Demetrius M. Boyd v. Gary A. Boughton, 7th Circuit Court of Appeals No. 14-2809, 8/14/15

Boyd challenged his convictions in state court for both bail jumping and the substantive offense on which the bail jumping charges were premised, arguing that convictions for both crimes violate the Double Jeopardy Clause. That challenge having failed, he sought federal habeas relief. The Seventh Circuit holds that, in the absence of clearly established federal law holding that the substantive offense is a lesser-included offense of the bail jumping and that Boyd could not therefore be convicted of both offenses, the state courts reasonably concluded that Boyd’s convictions for both offenses doesn’t violate double jeopardy.

The court gives a quick tutorial in the relevant law starting with the elements-only test from Blockburger v. United States, 284 U.S. 299 (1932), and ending with the fractured decision in United States v. Dixon, 509 U.S. 688 (1993), where the justices split five ways on how to apply the test to situations similar to Boyd’s. (Slip op. at 5-13). It then notes that whether the Double Jeopardy Clause precludes cumulative punishment in the same proceeding depends on whether the legislature intended cumulative punishment, Missouri v. Hunter, 459 U.S. 359 (1983). (Slip op. at 13-15).

The five-way divide in Dixon about applying the Blockburger test to situations like Boyd’s means there’s no clearly established federal law on the issue, so habeas relief is precluded on that basis. (Slip op. at 3-4, 20-22). Moreover, Wisconsin case law—most prominiently State ex rel. Jacobus v. State, 208 Wis. 2d 39, 559 N.W.2d 900 (1997)—holds that the legislature intended to punish a defendant separately for the substantive offense and the bail jumping; thus, under Hunter, Boyd’s double jeopardy argument fails. (Slip op. at 15-20, 22).

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