Daniel Gerard Lacey v. BRIAN GOOTKIN, Director of Montana Department of Corrections

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL GERARD LACEY,
Petitioner-Appellant,
v.
BRIAN GOOTKIN, Director of Montana
Department of Corrections; AUSTIN
KNUDSEN, Montana Attorney General,
Respondents-Appellees.
No. 19-36033
D.C. No. 1:17-cv-00116-SPW
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted August 13, 2021**
Seattle, Washington
Before: EBEL,*** BEA, and VANDYKE, Circuit Judges.
Prisoner Daniel Lacey appeals the district court’s denial of his habeas petition
alleging ineffective assistance of counsel. We have jurisdiction under 28 U.S.C.
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
FILED
AUG 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§§ 1291 and 2253(a) and review a district court’s denial of a habeas petition de novo.
Bradford v. Davis, 923 F.3d 599, 609 (9th Cir. 2019). We affirm.
This court granted a certificate of appealability on one issue: “whether counsel
provided ineffective assistance, including whether counsel should have raised a
challenge based on Montana’s double jeopardy law at trial and on appeal.” Lacey
argues that his trial and appellate counsel were ineffective because they “fail[ed] to
challenge his state prosecution as violative of Montana’s multiple prosecution
statute, Mont. Code Ann. § 46-11-504.” Lacey points to a similarly-situated
criminal defendant who successfully argued to the Montana Supreme Court that his
state and federal sex crime convictions constituted a double jeopardy violation in
State v. Neufeld, 212 P.3d 1063 (Mont. 2009), a case decided three months after
Lacey’s direct appeal concluded.
Habeas petitions bringing claims adjudicated on the merits in state court may
not be granted unless the state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. §
2254(d)(1). AEDPA stops just “short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings,” Varghese v. Uribe, 736
F.3d 817, 823 (9th Cir. 2013) (citation omitted), and we are bound by “a state court’s
interpretation of state law.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). We are
doubly deferential when reviewing ineffective assistance of counsel claims under

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Strickland v. Washington, 466 U.S. 668 (1984), and must “determine whether, in
light of all the circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance” and that the defendant suffered
prejudice as a result. Id. at 690, 694–95.
Lacey’s counsel cannot be found ineffective for failing to argue a theory that
had not been developed at the time of adjudication. Lawyers are “[]not … required
to anticipate” future changes in the law, but rather under Strickland are evaluated
“as of the time of [their] conduct.” Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994)
(quoting Strickland, 466 U.S. at 690). The failure to predict future changes in the
law cannot be considered ineffective assistance. See United States v. Chambers, 918
F.2d 1455, 1461 (9th Cir. 1990).
Lacey claims that his trial and appellate counsel should have familiarized
themselves with the Montana double jeopardy caselaw and “should have foreseen”
the successful double jeopardy argument made in Neufeld. But on state
postconviction review, the Montana Supreme Court determined that Lacey’s counsel
were not ineffective for failing to raise a double jeopardy argument because “Neufeld
was a significant departure from [Montana’s] prior jurisprudence” such that “it was
not unreasonable for counsel to think Montana law provided a different outcome
before Neufeld was decided.” Lacey v. State, 389 P.3d 233, 242 (Mont. 2017).

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We cannot disregard the Montana Supreme Court’s determination that
Neufeld was a significant departure from prior state jurisprudence. Bradshaw, 546
U.S. at 76; see also Babb v. Lozowsky, 719 F.3d 1019, 1029 (9th Cir. 2013)
(acknowledging the Nevada Supreme Court as having “the ultimate authority” to
characterize whether its caselaw “was a change in, rather than a clarification of,”
current state law), overruled on other grounds by White v. Woodall, 572 U.S. 415,
1021 (2014). The Montana Supreme Court’s determination of its own laws is
beyond the purview of this court’s habeas review because “state courts are the
ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).
Even were we to find error in that determination, we may not grant habeas relief for
perceived errors of state law. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S.
62, 67–68 (1991). Counsel’s failure to make the arguments later successfully
advanced in Neufeld is not grounds for a claim that his counsel rendered ineffective
assistance of counsel. Lacey has thus failed to meet his burden under Strickland.
AFFIRMED.

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