dissenting:

Because I believe that Brimmage was placed in jeopardy twice for the same offense in violation of the fifth amendment, I respectfully dissent.

The fifth amendment protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072, 2076 , 23 L.Ed.2d 656 (1969). In determining what constitutes the “same offense,” Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), states:

284 U.S. at 304 , 52 S.Ct. at 182 ; see also Whalen v. United States, 445 U.S. 684 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980). The majority concedes that robbery is a lesser included offense of felony murder in Nevada, because the robbery statute, Nev.Rev. Stat. § 200.380 (1985), does not require proof of any fact beyond those required to convict under the statute for murder committed in the perpetration of robbery, Nev. Rev.Stat. § 200.030 (1985).

Yet even if the two statutes do proscribe the same conduct, recent Supreme Court cases hold that the Double Jeopardy Clause does not prevent the imposition of cumulative punishments if the legislature clearly intends that result. Whalen notes that Blockburger established a rule of statutory construction:

445 U.S. at 691-92 , 100 S.Ct. at 1437-38 (emphasis added). Similarly, Albernaz v. United States, 450 U.S. 333 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981), states that:

450 U.S. at 340 , 101 S.Ct. at 1142 (emphasis added). And in Missouri v. Hunter, 459 U.S. 359 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983), the Court amplified its prior holdings:

459 U.S. at 368-69 , 103 S.Ct. at 679 (footnote omitted) (emphasis added).

While these cases allow a legislature to impose cumulative punishments under two statutes, such an intent must be “clearly expressed.” The majority acknowledges that, absent such an expression, the imposition of multiple punishments for the greater and lesser included offenses violates the fifth amendment. There is no clear legislative expression in this case. In neither of the Nevada statutes in question nor any other legislation to which we have been referred is there any indication that the Nevada Legislature intended that multiple punishment be imposed, or, indeed, even considered that issue.

The Nevada robbery statute states only that: “Every person who shall commit robbery shall be punished by imprisonment in the state prison for not less than 1 year nor more than 15 years.” Nev.Rev.Stat. § 200.380(2) (1985). The murder statute provides that one guilty of murder committed in the perpetration of robbery shall be punished:

Nev.Rev.Stat. § 200.030(4) (1985). Not one word in the statutes evinces an intent to permit multiple punishments, and the parties have not pointed to any legislative history that could lead to such a conclusion.

It is in light of this complete absence of any, much less “clear,” indication of legislative intent to permit multiple punishment that we examine the Nevada Supreme Court decisions concerning this issue. Under the language of Missouri v. Hunter, 459 U.S. at 368 , 103 S.Ct. at 679 , we are required to accept a state court’s finding of legislative intent. But here there is no such finding. In neither Brimmage v. State, 93 Nev. 434 , 567 P.2d 54 (1977), nor Koza v. State, 681 P.2d 44, 50 (Nev.1984) (citing Brimmage), does the Nevada Supreme Court hold that the Nevada legislature intended multiple punishments for felony murder and the underlying felony of robbery. The court in Brimmage, 93 Nev. at 443 , 567 P.2d at 59-60 , merely referred to an earlier Nevada decision, Carmody v. District Court, 81 Nev. 83 , 398 P.2d 706 (1965), for authority that robbery and murder are separate and distinct offenses. And Koza , although citing Missouri v. Hunter as permitting the legislature to authorize cumulative punishments under two statutes proscribing the same conduct, makes no finding as to the Nevada Legislature’s intent in enacting the felony murder statute. 681 P.2d at 50 . It holds only that robbery and felony murder are two “separate and distinct offenses.” Id. The majority has previously concluded that this legal holding is incorrect, for robbery is a lesser included offense of felony murder committed in the perpetration of robbery. The majority also concedes that “[i]t is true that in neither Koza, Brimmage, nor Car-mody did the Nevada Supreme Court explicitly analyze legislative intent.”

Thus we are left with what the majority admits is an incorrect legal holding by the Nevada court and no Nevada decision finding any clearly expressed legislative intent to authorize cumulative punishment. From these circumstances the majority concludes that, because the Nevada Supreme Court quoted the relevant Missouri v. Hunter *1018 language on legislative intent before it reached the erroneous legal conclusion that “separate and distinct statutes and offenses are involved,” 681 P.2d at 50 , the requisite legislative intent exists. I cannot accept this reasoning.

While the majority is correct in noting that Missouri v. Hunter requires federal courts to accept state courts’ construction of state statutes pertaining to legislative intent for cumulative punishments, 459 U.S. at 368 , 103 S.Ct. 679 , the Court also noted that “we are not bound by the [state] Supreme Court’s legal conclusion that these two statutes violate the Double Jeopardy Clause, and we reject its legal conclusion.” Id. This court is likewise not bound by the Nevada Supreme Court’s legal conclusion that a robbery is a separate and distinct offense from murder committed in the perpetration of robbery. See Harris v. Oklahoma, 433 U.S. 682 , 97 S.Ct. 2912 , 53 L.Ed.2d 1054 (1977) (per curiam).

CONCLUSION

Robbery is a necessarily included offense and cumulative punishments are forbidden under the Blockburger test “in the absence of a clear indication of contrary legislative intent.” Whalen, 445 U.S. at 691-92 , 100 S.Ct. at 1437-38 . In this case we not only have no “clear indication” of legislative intent, we have no indication at all in the statutes of an intent to impose cumulative punishments. Nor has the Nevada Supreme Court stated that the legislature indicated such an intent. Missouri v. Hunter does not require us to defer to an erroneous legal holding by a state court nor to manufacture a state court’s finding of legislative intent.

In the absence of any indication of legislative intent to impose cumulative punishments and any state court finding on that issue, I conclude that it was a violation of the double jeopardy prohibition against multiple punishments to impose an additional sentence for robbery. I would remand for vacation of the robbery conviction and affirm the district court’s denial of the petition for a writ of habeas corpus on all other grounds.