NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 17 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL GERARD LACEY, No. 19-36033

Petitioner-Appellant, D.C. No. 1:17-cv-00116-SPW

v.

MEMORANDUM*

BRIAN GOOTKIN, Director of Montana Department of Corrections; AUSTIN KNUDSEN, Montana Attorney General,

Respondents-Appellees.

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. §§ 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

2 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).

3 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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