from the United States District Court for the Western
District of Louisiana
WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
State of Louisiana tried Ricky Langley three times for the
same killing. At the second trial, the jury acquitted Langley
of first degree murder, relevantly defined as (1) killing a
human being (2) with specific intent to kill or to inflict
great bodily harm (3) where the victim was under twelve.
See La. R.S. 14:30(A)(5). Langley's attorneys
had conceded the first and third elements, but disputed the
second; they argued that Langley was mentally incapable of
forming the requisite intent. Years later, at the third
trial, and over a double jeopardy objection, the State
re-tried Langley for the lesser included offense of second
degree murder, defined as (1) killing a human being (2) with
specific intent to kill or to inflict great bodily harm.
See La. R.S. 14:30.1(A)(1). This time, the State
secured a conviction. Langley now petitions for a writ of
habeas corpus, arguing that his conviction violated the
issue-preclusion component of the Double Jeopardy Clause.
See Ashe v. Swenson, 397 U.S. 436, 443-46 (1970).
Double Jeopardy Clause, made applicable to the states by the
Fourteenth Amendment, guarantees that "[n]o person shall
. . . be subject for the same offense to be twice put in
jeopardy of life or limb." U.S. Const. amend. V;
accord Benton v. Maryland, 395 U.S. 784, 787 (1969).
This language embodies an idea "deeply ingrained"
in Anglo-American jurisprudence: "that the State with
all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
offense." Green v. United States, 355 U.S. 184,
187 (1957). To that end, the Double Jeopardy Clause requires
that acquittals be final-no matter how legally or factually
erroneous they may appear to be. E.g., United
States v. DiFrancesco, 449 U.S. 117, 129-30 (1980);
Fong Foo v. United States, 369 U.S. 141, 143 (1962).
Once an acquittal is rendered, the State may not re-prosecute
the defendant for the same crime. E.g.,
Green, 355 U.S. at 188. And importantly here,
neither may the State prosecute the defendant for even a
different crime, if that crime has as an essential
element an issue necessarily determined by the acquitting
jury's verdict. Ashe, 397 U.S. at 443-46.
case, the verdict from Langley's second trial necessarily
determined that the State failed to prove beyond a reasonable
doubt that Langley acted with specific intent to kill or to
inflict great bodily harm. Hence, the State is
constitutionally barred from prosecuting Langley for any
crime having that same issue as an essential element.
Langley's second-degree-murder conviction from his third
trial is therefore invalid. We accordingly REVERSE the
district court's dismissal of Langley's habeas
petition and REMAND with directions to issue the writ. There
may well be crimes for which the State can constitutionally
prosecute Langley in connection with the horrific facts of
this case. But under clearly established Supreme Court
precedent, second degree murder as defined in La. R.S.
14:30.1(A)(1) cannot reasonably be one of them.
facts are heartrending. Six-year-old J.G. went missing on
February 7, 1992. Officers soon arrested Langley, who was
then twenty-six years old. Once inside the police cruiser,
Langley admitted to killing the young boy and leaving the
body in his closet. He described how he rented a room from a
family with two children; how J.G. came to the house looking
to play with one of those children; how Langley followed J.G.
inside; and how Langley strangled J.G. to death. He then gave
the officers a videotaped tour of the house, recounting the
events in a calm and neutral voice that one witness described
as having "no register whatsoever of horror, shame, [or]
anxiety." When an officer asked Langley why he had done
it, Langley shook his head and answered: "I couldn't
tell you. I still go through my mind trying to figure it out.
It's like, I know I did it, but yet it's like
something you read in a newspaper."
later gave two more custodial videotaped confessions. His
confessions gave differing stories, however, as to whether he
also beckoned J.G. inside the house; as to whether he abused
J.G. sexually; and as to whether any such abuse took place
before or after the strangling.
first trial took place in July 1994. A grand jury charged
Langley with first degree murder; a petite jury convicted
him; and a judge sentenced him to death. Those proceedings
were set aside, however, after a finding that the judge
presiding over the grand jury had selected the foreperson on
the basis of race. See generally State v. Langley
(Langley II), 813 So.2d 356, 359-65, 373 (La. 2002)
(applying Campbell v. Louisiana, 523 U.S. 392,
396-97 (1998)).Nei-ther party contends that this now-vacated
conviction carries double jeopardy consequences. See
generally Burks v. United States, 437 U.S. 1, 13, 16
second trial-the one most relevant here-took place in May
2003. The State re-indicted Langley on the same
first-degree-murder charge, and again sought the death
penalty. Langley pleaded not guilty and not guilty by reason
of insanity. See La. Code Crim. Proc. Ann. art.
arguments to the jury, defense counsel repeatedly emphasized
that they were not contesting that Langley had killed J.G.
The defense likewise conceded to the jury that J.G. had been
under the age of twelve.
the defense's closing argument contested primarily two
issues. First, defense attorney Phyllis Mann argued that the
State had failed to prove beyond a reasonable doubt that
Langley acted with specific intent to kill or to inflict
great bodily harm. The core of the argument was that Langley
could not have formed the requisite intent because his mental
illness prevented him from understanding and intending the
consequences of his actions. Second, defense attorney Clive
Smith argued separately that Langley had proved his insanity
defense by a preponderance of the evidence. Both arguments
turned in part on the same evidence of Langley's mental
illness. But Langley's attorneys were careful
to delineate the two theories-explaining that they involved
different substantive standards, required different degrees
of persuasion, and placed the burden of proof on different
would become relevant on appeal, the judge presiding over
Langley's second trial left the courtroom for significant
portions of the proceedings, cut off the defense's
closing argument early, refused to entertain certain
contemporaneous objections, and by and large "failed to
maintain order and decorum" in the courtroom. See
generally State v. Langley (Langley III), 896 So.2d 200,
203-07 (La. Ct. App. 2004).
judge did, however, give the following jury instructions:
First, the judge defined first degree murder. First degree
murder in Louisiana consists of (1) killing a human being (2)
with specific intent to kill or to inflict great bodily harm
(3) with one or more aggravating factors. See La.
R.S. 14:30(A). Here, the State chose to rely on two possible
aggravators: either (a) that Langley was committing or
attempting second degree kidnapping, see id.
14:30(A)(1); or (b) that J.G. was less than twelve years old,
see id. 14:30(A)(5).The judge accordingly defined
first degree murder as requiring proof of those elements
beyond a reasonable doubt. The judge then defined specific
Specific criminal intent is that state of mind which exists
when the circumstances indicate that a defendant actively
desired the prescribed criminal consequences to follow his
act or failure to act.
judge told the jury: "[I]f you are convinced beyond a
reasonable doubt that [Langley] is guilty of first degree
murder, your verdict should be 'guilty.'"
the judge instructed the jury, "If you are not convinced
that [Langley] is guilty of the offense charged, you may find
[him] guilty of a lesser offense, " including second
degree murder. See La. Code Crim. Proc. Ann. art.
804(B). Second degree murder in Louisiana is defined in the
alternative. As relevant here, it consists of either: (1)
killing a human being (2) with specific intent to kill or
inflict great bodily harm ("specific-intent second
degree murder"), see La. R.S. 14:30.1(A)(1); or
(1) killing a human being (2) while committing or attempting
certain enumerated felonies ("second degree felony
murder"), see id. 14:30.1(A)(2). The judge
instructed the jury as to both types. With respect to
specific-intent second degree murder, the judge gave no
definition of "specific intent" other than the one
quoted above. With respect to second degree felony
murder, the judge instructed the jury that the relevant
felonies were second degree kidnapping, see id.
14:44.1,  and cruelty to juveniles, see id.
14:93. The judge then told the jury: "If you
are not convinced that [Langley] is guilty of first degree
murder, but you are convinced beyond a reasonable
doubt that [he] is guilty of second degree murder, the form
of your verdict should be 'guilty of second degree
murder.'" (emphasis added).
the judge instructed the jury on the insanity defense. He
explained that "[Langley] has the burden of proving his
insanity at the time of the commission of the offense by a
preponderance of the evidence." He then defined
[Langley was insane at the time of the commission of the
offense] if the circumstances indicate that because of his
mental disease or mental defect the defendant was incapable
of distinguishing between right and wrong with reference to
the conduct in question . . . .
instructed that, if the jury found that the State had proved
Langley's guilt beyond a reasonable doubt, but
also found that Langley established his insanity
defense, the verdict "must be 'not guilty by reason
verdict form listed the possible responsive verdicts-
"guilty, " "guilty of second degree murder,
" "guilty of manslaughter, " "not guilty
by reason of insanity, " and "not guilty"-and
instructed the jury to return exactly one of them.
See La. Code Crim. Proc. Ann. arts. 809, 814(A)(1),
816. During deliberations, the jury requested a written list
of elements for each responsive verdict, and a clarification
of the phrase "great bodily harm" in the
specific-intent requirement. The judge provided the first
requested item, but not the second.
jury returned a verdict finding Langley guilty of second
degree murder and, by implication from the verdict form and
the judge's instructions, acquitting him of first degree
appealed his second-degree-murder conviction, and the
Louisiana Third Circuit Court of Appeal reversed and remanded
for a new trial. Langley III, 896 So.2d at 212. The
Third Circuit first held that the trial judge's
misconduct amounted to structural error warranting reversal
with no showing of prejudice necessary. Id. at
207-10. Then, reasoning that the verdict was "an
absolute nullity, " the Third Circuit opined that
Langley could be re-tried even for first degree
murder-notwithstanding his recent acquittal. Id. at
remand, the defense moved to quash the first degree murder
charge, citing Fong Foo, 369 U.S. at 143, and
Green, 355 U.S. at 188-91, on the ground that
Langley had just been acquitted of that exact crime. The
trial court (this time a new judge) granted the motion,
ordering that the re-trial be limited to second degree
murder. The State sought interlocutory review, and the Third
Circuit summarily reversed.
certiorari, the Louisiana Supreme Court reversed the Third
Circuit, reinstated the trial judge's order, and quashed
the first degree murder charge. State v. Langley (Langley
IV), 958 So.2d 1160, 1169-70 (La.) (citing
Green, 355 U.S. at 188), cert. denied, 552
U.S. 1007 (2007). The opinion held that Langley's
second-degree-murder conviction operated as an implied
acquittal of first degree murder. Id. at 1170. That
was so both because the jury instructions required the jury
to acquit on first degree murder before considering second,
see id. at 1169-70, and because Louisiana law
provides that "[w]hen a person is found guilty of a
lesser degree of the offense charged, the verdict . . . is an
acquittal of all greater offenses charged in the indictment,
" id. at 1170 (quoting La. Code Crim. Proc.
Ann. art. 598(A)).
third trial took place in November 2009, with Langley now
represented by his present-day counsel. Langley waived his
right to a jury and proceeded via bench trial.
one of trial, the State orally moved to amend the indictment
to reflect that only second degree murder was being charged.
Langley's counsel agreed that the indictment should be
amended, but also argued that the new indictment must be
limited to felony murder-raising the Ashe issue for
the first time. Specifically, Langley's counsel
contended (and continues to contend today) that no rational
jury could have returned the 2003 verdict without deciding
that the State failed to prove beyond a reasonable doubt that
Langley had specific intent to kill or to inflict great
bodily harm. Thus, Langley's counsel argued, the State
could not charge Langley with any crime requiring proof of
that same element, including the crime of specific-intent
second degree murder under La. R.S. 14:30.1(A)(1). See
Ashe, 397 U.S. at 443-46. The court granted the
State's motion and denied Langley's from the
bench. The indictment was formally amended to
reflect charges for second degree murder under both La. R.S.
14:30.1(A)(1) (specific intent) and La. R.S. 14:30.1(A)(2)
next morning, however, the State orally dismissed the felony
murder charge, leaving only the charge of second degree
murder based on specific intent. The prosecutor
explained that he had looked at the 1992 code the night
before and realized for the first time that the crimes of
"second degree kidnapping" and "cruelty to
juveniles" were not enumerated felonies in the version
of the felony-murder statute in effect at the time of
Langley's alleged offense.
judge ultimately found Langley guilty of second degree
murder. The ruling explicitly stated that "[t]he issue
of specific intent . . . is necessary for the determination
of guilt, " and found that the requisite specific intent
was present. Langley's counsel renewed the Ashe
objection in a post-trial motion, but the judge stood by his
earlier ruling. The judge then imposed the mandatory sentence
of life imprisonment without parole. See La. R.S.
direct appeal, the Louisiana Third Circuit Court of Appeal
rejected Langley's Ashe claim on its merits.
State v. Langley (Langley V), 61 So.3d 747, 757-58
(La. Ct. App. 2011). The Third Circuit reasoned that the 2003
verdict had not "necessarily determined" the issue
of specific intent because the jury might have chosen not to
obey the judge's instructions. See id. The
Louisiana Supreme Court declined review, 78 So.3d 139 (La.
2012) (mem.), as did the United States Supreme Court, 568
U.S. 841 (2012) (mem.).
than one year later, Langley pressed his Ashe claim
in a federal habeas petition. See 28 U.S.C. §
2254. A magistrate judge issued a report and recommendation
that the petition be denied. Langley v. Prince (Langley
VI), No. 13-cv-2780, 2015 WL 10635328 (W.D. La. Dec. 14,
2015). The magistrate judge disavowed the state court's
reasoning, substituting her own reasoning instead. See
id. at *8. According to the magistrate judge,
Langley's Ashe claim failed because Langley had
not shown that "a rational jury would not find that
Langley acted with specific intent to kill."
Id. The magistrate judge further reasoned that,
because the jury rejected Langley's insanity defense, the
jury could not have used evidence of Langley's mental
illness to find a lack of specific intent. Id. Then,
because the magistrate judge could "locate no other
grounds within the record . . . to support a finding of no
specific intent, " she concluded that the issue
"was not necessarily determined." Id. The
district court adopted the report and recommendation in full
and dismissed Langley's petition. It did, however, issue
a certificate of appealability, permitting our review.
Because the state court rejected Langley's Ashe
claim on its merits, see Langley V, 61 So.3d at
757-58, Langley is not entitled to federal habeas relief
unless that adjudication
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1). This standard "stops
short of imposing a complete bar on federal-court
relitigation of claims already rejected in state court
proceedings, " Harrington v. Richter, 562 U.S.
86, 102 (2011)-but it comes close. Review under §
2254(d)(1) must be "highly deferential" to the
state court's decision, and must give that decision
"the benefit of the doubt." Cullen v.
Pinhol-ster, 563 U.S. 170, 181 (2011). The district
court's application of § 2254(d)(1) is reviewed de
novo. Williams v. Thaler, 684 F.3d 597, 603 (5th
purposes of § 2254(d)(1), "clearly established
Federal law" means "the governing legal principle
or principles set forth by the Supreme Court at the time the
state court render[ed] its decision." Lockyer v.
Andrade, 538 U.S. 63, 71-72 (2003). In other words, it
includes the applicable Supreme Court holdings, but not
"the dicta." Id. at 71. Law may be clearly
established by the Supreme Court even if the Court has not
rendered a decision "on nearly identical facts";
rather, it is enough if Supreme Court holdings clearly
establish "a general standard." Marshall v.
Rodgers, 569 U.S. 58, 62 (2013) (per curiam).
"contrary to" and "unreasonable
application" clauses, moreover, "have independent
meaning." Bell v. Cone, 535 U.S. 685, 694
(2002). The "contrary to" clause is met "if
the state court applies a rule different from the governing
law set forth in [Supreme Court] cases, or if it decides a
case differently than [the Supreme Court] ha[s] done on a set
of materially indistinguishable facts." Id. The
"unreasonable application" clause, in turn, is met
"if the state court identifies the correct governing
legal rule" but "unreasonably applies it" to
the facts of the case, or "if the state court either
unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new
context where it should apply." Terry Williams v.
Taylor, 529 U.S. 362, 407 (2000).
unreasonable application is different from an incorrect
one." Bell, 535 U.S. at 694. To be an
"unreasonable application, " the state court's
error must have been "well understood and comprehended
in existing law beyond any possibility for fair-minded
disagreement." Richter, 562 U.S. at 108. And,
under our circuit's interpretation of the
"unreasonable application" clause, we review only
the reasonableness of the state court's "ultimate
legal conclusion, " as distinct from the thoroughness or
quality of its written opinion. Neal v. Puckett, 286
F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam).
these lines, our court has stated that review under §
2254(d)(1) encompasses not just the arguments and legal
theories the state court's opinion actually gave, but
also any arguments or legal theories the state court
reasonably could have given. E.g.,
Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017)
(citing Richter, 562 U.S. at 102); Clark v.
Thaler, 673 F.3d 410, 418 (5th Cir. 2012)
(same). Langley argues that the Supreme Court
unequivocally rejected this approach in Wilson v.
Sellers, 138 S.Ct. 1188, 1191-92, 1194-96 (2018), issued
after oral argument in this case. We leave
Wilson's impact to be decided another day.
Because Langley is entitled to relief even under
"Richter's 'could have supported'
framework, " id. at 1195, we assume for the
limited purpose of this appeal that, where the state court
denies the petitioner's claim by issuing an opinion that
rests on objectively unreasonable grounds, § 2254(d)(1)
still bars relief unless the petitioner "show[s] there
was no reasonable basis for the state court to deny relief,
" Richter, 562 U.S. at 98.
"starting point" for our analysis is to identify
the relevant Supreme Court precedent that was clearly
established when the state court issued its opinion.
Marshall, 569 U.S. at 61. Here, that precedent is
the Double Jeopardy Clause's issue-preclusion component,
as set forth in Ashe v. Swenson, 397 U.S. 436,
443-46 (1970), and related cases. The Ashe doctrine
"precludes the Government from relitigating any issue
that was necessarily decided by a jury's acquittal in a
prior trial." Yeager v. United States, 557 U.S.
110, 119 (2009).
challenge, of course, is deciphering exactly which issues (if
any) a jury's verdict "necessarily decided."
The use of general verdict forms muddies the analysis, as
general verdicts say little if anything about the jury's
specific rationale. Brackett, 113 F.3d at 1398-99.
But the Supreme Court in Ashe did not leave it to
the states to crack this puzzle. Rather, it prescribed a
specific solution: When the prior acquittal "was based
upon a general verdict, as is usually the case, " the
reviewing court must
examine the record of prior proceeding, taking into account
the pleadings, evidence, charge, and other relevant matter,
and conclude whether a rational jury could have grounded
its verdict upon an issue other than that which the defendant
seeks to foreclose from consideration.
397 U.S. at 444 (emphasis added). In other words, the court
must ask whether a rational jury could have returned the same
verdict without deciding the relevant factual issue. See
United States v. El-Mezain, 664 F.3d 467, 552-53 (5th
Cir. 2011) (citing United States v. Leach, 632 F.2d
1337, 1340 (5th Cir. 1980)). If not, that issue was
facts of Ashe are illustrative. A group of masked
men robbed six participants in a poker game. 397 U.S. at 437.
The state charged Bob Ashe with six separate counts of
robbery-one for each player. Id. at 438. At
Ashe's trial for the robbery of poker player Donald
Knight, however, the jury acquitted. Id. at 439. The
question was whether the state could proceed to try Ashe for
the robberies of the other five players.
could not. After announcing the test described above, the
Supreme Court held that the jury had "determined by its
verdict that [Ashe] was not one of the robbers."
Id. at 446. The jury instructions had stated in
effect that the jury was required to find Ashe guilty if it
found (1) that the alleged robbery had occurred; (2) that the
robbers had taken "any money" from Knight; and (3)
that Ashe had been one of the robbers, whether or not Ashe
had personally taken the money. See id. at 439 &
nn.2, 3. At trial, the evidence that the alleged robbery took
place and that the robbers had taken money from Knight was
strong and undisputed. Id. at 438. The evidence of
the robbers' identities, on the other hand, was weak.
Id. So the "single rationally conceivable"
basis for the jury's acquittal was that the jury was not
convinced beyond a reasonable doubt that Ashe had been one of
the robbers. Id. at 445. As a result, the state
could not "hale him before a new jury to litigate that
issue again." Id. at 446.
and the Supreme Court cases applying it clearly establish the
following relevant governing principles:
the subject of the Ashe inquiry is a hypothetical,
objective, and rational jury-not the actual jurors in the
room. The question is not what these particular
jurors decided, but rather what a rational jury
could have decided if faced with the trial record.
That, after all, is what Ashe literally says.
See 397 U.S. at 444 (test asks what "a rational
jury could have" done); see also id. at 445
(issue necessarily decided because it was "[t]he single
rationally conceivable issue in dispute"). The Supreme
Court has since reiterated that "what transpired in the
jury room" is beside the point; the Ashe
inquiry is "confined to the points in controversy on the
former trial, to the testimony given by the parties, and to
the questions submitted to the jury for their
consideration." Yeager, 557 U.S. at 122
(quoting Packet Co. v. Sickles, 72 U.S. (5 Wall.)
580, 593 (1866)); see also, e.g., United States
v. Powell, 469 U.S. 57, 67 (1984) ("Courts have
always resisted inquiring into a jury's thought processes
. . . ."); Garcia v. Dretke, 388 F.3d 496,
503-04 (5th Cir. 2004) (understanding Ashe to
clearly establish for purposes of § 2254(d)(1) that
"[o]ur inquiry into the potential rationale of the first
jury . . . must stay within the bounds of a rational
and as a corollary, Ashe is in fact
"predicated on the assumption that the jury
acted rationally." Powell, 469 U.S. at 68
(emphasis added). Thus, when the first jury returns
"irreconcilably inconsistent" verdicts-meaning
verdicts that acquit on one count while convicting on
another, where the two counts require opposite resolutions of
the same issue of ultimate fact-Ashe no longer
applies. Bravo-Fernandez v. United States, 137 S.Ct.
352, 356-57 (2016) (construing Powell, 469 U.S. at
68). But so long as the jury's verdicts are not "on
their face . . . logically inconsistent, " Ashe
still controls: the court must "respect . . . the
legitimacy" of the verdicts and assume the jury
rational. Yeager, 557 U.S. at 124-25; see also
id. at 134 (Alito, J., dissenting) (agreeing that
"courts should begin with the presumption that a
jury's actions can rationally be reconciled").
Ashe itself establishes that the court must assume
the hypothetical jury believed any "substantial and
uncontradicted evidence of the prosecution on a point the
defendant did not contest." 397 U.S. at 444 n.9.
Otherwise, the Supreme Court explained, issue preclusion
would never apply, "since it is impossible to imagine a
statutory offense in which the government has to prove only
one element or issue to sustain a conviction."
Id. This principle was essential to
Ashe's holding. Without it, the issues whether
the robbery occurred at all and whether any money was taken
from Knight would have been additional "rationally
conceivable issue[s] in dispute" that would have
foreclosed relief. See id. at 445.
and finally, a court applying Ashe must assume that
the jury- being a rational one-followed its jury
instructions. This principle is implicit in the concept of a
rational jury and in the Supreme Court's reasoning in
Ashe. See, e.g., United States v.
Tran, 433 Fed.Appx. 227, 231 (5th Cir. 2011)
(understanding Ashe's use of the phrase
"rational jury" to mean a jury that obeys its
instructions). And the Supreme Court made that principle
explicit when it decided Turner v. Arkansas, 407
U.S. 366 (1972) (per curiam).
Turner, the state had tried Dennis Turner for first
degree murder on theories of premeditated murder and
felony-murder committed in the course of a robbery.
Id. at 369. After the jury acquitted on both
theories, the state re-indicted him for the robbery itself.
Id. at 367. Turner argued that the acquittal had
necessarily decided that he did not commit the robbery.
Id. at 368. The state countered that a rational jury