Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge MICHAEL and Judge KING joined.
OPINION
Orlando Brad Jones petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006), alleging that the Commonwealth of Virginia violated his Fifth Amendment rights by punishing him twice for the same offense. The deferential review of state court judgments mandated by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires us to
I.
To better understand this case’s procedural history and the parties’ arguments, we must briefly set forth the nature of Jones’s atypical constitutional claim. He contends that the Commonwealth violated his rights under the Double Jeopardy Clause of the Fifth Amendment
not
by subjecting him to multiple prosecutions for the same offense but by subjecting him to “multiple
punishments
for the same offense.”
See North Carolina v. Pearce,
When the government convicts a defendant for two crimes based on identical conduct, the Fifth Amendment requires that the sentencing court “determine whether the legislature ... intended that each violation be a separate offense.”
Garrett v. United States,
“When the claim is made in relation to state offenses, federal courts are essentially bound by state court interpretations of state legislative intent on this score.”
Thomas v. Warden,
In
Brown v. Commonwealth,
With this understanding of the double jeopardy and state law principles at issue in this case, we turn to the facts.
II.
On December 12, 2001, Jones donned a mask and, together with his cousin, robbed at gunpoint a McDonald’s restaurant in Hampton, Virginia. The Commonwealth charged Jones with robbery, Va.Code Ann. § 18.2-58 (2009); abduction,
id.
§ 18.2-48; wearing a mask in public,
id.
§ 18.2-422; and two counts of using a firearm while committing a felony,
id.
§ 18.2-53.1, one
At the conclusion of the Commonwealth’s case, defense counsel moved to dismiss the two abduction charges on the ground that “the abduction must be separate and apart from and not merely incidental to the restraint employed in the commission of the [robbery].” The trial court denied the motion on the merits, finding that two distinct robberies had taken place, one for each cash register. The trial court reasoned that, because the Commonwealth charged Jones only with the first robbery, and the abduction charge was incidental only to the second robbery, the Commonwealth did not violate double jeopardy principles because the abduction was not incidental to the charged robbery.
On September 24, 2002, the jury convicted Jones on all counts. The trial judge, following the jury’s recommendation, sentenced Jones to thirty-four years in prison: five years for the robbery, three for using a firearm during the robbery, one for wearing a mask in public, twenty for the abduction, and five for using a firearm during the abduction. Thus, the abduction-related convictions accounted for twenty-five years of Jones’s thirty-four year sentence.
Jones timely filed petitions for appeal, first in the Court of Appeals of Virginia and then in the Supreme Court of Virginia. In his supporting (identical) briefs to each court, Jones asserted the following as an assignment of error:
The Trial Court erred in concluding that the abduction (and related firearm charge) could be sustained without a scintilla of evidence in the record to show intimidation or force in the movement of the victim from one cash register to the other cash register in the course of this robbery.
In the argument sections for this claim, Jones cited to
Brotm
and described the claim in terms very similar to those used in that case: “The alleged abduction is not the type of case that the legislature envisioned as a separate offense from a crime such as this robbery, for it is intrinsic in the very act of this robbery.”
Compare Brotm,
On July 16, 2003, the Court of Appeals of Virginia denied Jones’s appeal without mentioning double jeopardy, the Constitution, or Brown. Instead, the court focused on the sufficiency of the evidence supporting the abduction charges. On December 2, 2003, the Supreme Court of Virginia summarily denied Jones’s petition for appeal.
Jones, now proceeding
pro se,
filed with the state Supreme Court a petition for state habeas relief. This time, he explicitly alleged that his “conviction is in contravention of the Double Jeopardy Clause in the Fifth Amendment to the Constitution of the United States.” The court denied Jones’s state habeas petition, finding his double jeopardy claim procedurally barred under
Slayton v. Parrigan,
On March 30, 2007, the district court denied Jones’s petition. The court refused to find Jones’s double jeopardy claim procedurally barred, but held that punishing Jones for both robbery and abduction did not violate double jeopardy under Virginia’s incidental detention doctrine. The court did not mention the AEDPA standard of review.
The district court subsequently granted Jones a certificate of appealability as to this issue, and Jones timely noted this appeal. We review a district court’s denial of a § 2254 habeas petition
“de novo,
applying the same standard that the district court was required to apply.”
Longworth v. Ozmint,
III.
The Commonwealth initially maintains that Jones failed to present (and so exhaust) his double jeopardy claim to the state appellate courts on direct appeal. The Commonwealth argues that Jones did not “exhaust[] the remedies available in the courts of the State,” 28 U.S.C. § 2254(b)(1)(A), because he neglected to expressly invoke the Double Jeopardy Clause before the Virginia appellate courts, and instead litigated only “a state law claim concerning the sufficiency of the evidence of the abduction and firearm counts.” Resp. Br. 13. This argument fails.
Of course, it is true that “[b]e-fore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.”
Baldwin v. Reese,
Moreover, the burden of demonstrating fair presentment lies with the habeas petitioner, who must “do more than scatter some makeshift needles in the haystack of the state court record.”
Mallory v. Smith,
Thus the Supreme Court has held that a “litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim ... a
case deciding such a claim on federal grounds.” Reese,
For example, in
Daye v. Attorney General of New York,
Here, as in
Daye
and
Ellsworth,
Jones cited to a state
case
— Brown
v. Commonwealth
— that deals exclusively with federal double jeopardy law, and the Supreme Court of Virginia has since expressly recognized that its “ruling in
Brown
regarding incidental detention
only
applies when ... the guarantee of double jeopardy may be implicated.”
Walker,
Finally, the Commonwealth itself recognized and addressed the double jeopardy issue in its opposing brief before the state Supreme Court, evidencing Jones’s fair presentment of that claim.
See Smith v. Digmon,
In an attempt to circumvent this more than ample authority supporting Jones’s contention that citation to
Brown
fairly presented his double jeopardy claim, the Commonwealth offers a technical argument. Virginia contends that Jones’s failure to include
Broum
or double jeopardy language specifically in his assignments of error on direct appeal — despite his clear focus on
Broum
in the argument sections of his appellate briefs — precludes us from holding that he fairly presented that claim. The Commonwealth directs our attention to the Rules of the Supreme Court of Virginia, which provide that “[ojnly errors assigned in the petition for appeal will be noticed by this Court.” Va. Sup.Ct. R. 5:17(c). However, the Commonwealth cites
no
authority for the proposition that a petitioner
exhausts
for federal habeas purposes only “assigned” errors. In fact, as the district court noted, although we of course defer to appropriate state procedural rules in determining if a petitioner has exhausted a claim, we have previously disregarded a Virginia defendant’s failure to identify a claim in his assignments of error, finding the claim fairly presented by the argument section of his brief.
Compare Kasi v. Angelone,
Moreover, even assuming that a petitioner only exhausts “assigned” errors, Jones’s assignment of a sufficiency of evidence error fairly presented his double jeopardy claim. This is so because the Supreme Court of Virginia has regularly treated sufficiency of the evidence and double jeopardy interchangeably in this
This is one of those “instances in which the ultimate question for disposition, will be the same despite variations in the legal theory or factual allegations urged in its support.”
Picard v. Connor,
For these reasons, we must reject the Commonwealth’s contention that Jones failed to exhaust his double jeopardy claim. As the district court held, he has done so and thus complied with 28 U.S.C. § 2254(b)(1)(A).
IV.
Even if Jones properly exhausted his double jeopardy claim, the Commonwealth argues that he procedurally defaulted the claim, thereby foreclosing federal habeas review. The Commonwealth points to the Supreme Court of Virginia’s state habeas opinion, in which that court, invoking
Slayton v. Parrigan,
concluded that Jones had not raised his double jeopardy claim on direct appeal.
Slayton
holds that a state prisoner may not obtain state habeas relief by raising a non-jurisdictional claim of error in state habeas proceedings that he could have but did not raise at trial and on direct appeal.
“If a state court clearly and expressly bases its dismissal of a habeas petitioner’s claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim.”
Breard,
Because procedural default constitutes an affirmative defense in habeas cases, the burden rests with a state to prove the adequacy of the relied-on procedural bar.
See Yeatts v. Angelone,
We have held on several occasions that the
Slayton
rule generally provides an adequate bar to federal habeas review.
See, e.g., Wright v. Angelone,
In fact, as the district court correctly observed, the Supreme Court of Virginia “has indulged a more lenient pleading standard where the alleged error pertains to the incidental detention doctrine.” In at least two cases, the state Supreme Court on direct appeal — despite the defendant’s failure to explicitly mention double jeopardy, federal law, or even
Brown
in his assignments of error — ruled on the merits of the defendant’s
Brown
claim.
See Powell,
These cases provide strong evidence that Virginia courts do not “regularly or consistently” require defendants, in order to receive on-the-merits review of
Brown
claims, to refer to the Constitution of the United States or other federal law. In the absence of any showing of consistency by the Commonwealth, these cases demonstrate Slayton’s inadequacy in this context. Because the Commonwealth has not met
V.
The Commonwealth next argues that Jones cannot obtain habeas relief on his double jeopardy claim under either AED-PA or the common-law principles that predate that statute.
AEDPA provides as follows:
An application for a writ of habeas corpus .... shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) 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). 5 Therefore, if Virginia adjudicated Jones’s double jeopardy claim, we cannot grant habeas relief unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” Supreme Court precedent. Id.
Jones conceded in his brief and again at oral argument (and the Commonwealth agrees) that the Virginia trial court adjudicated his double jeopardy claim on the merits. Some of our sister circuits have found trial-court adjudication sufficient to trigger the deferential review set forth in AEDPA.
See, e.g., Thomas v. Horn,
Applying AEDPA, we must deny Jones’s petition because the state courts’ adjudication of his double jeopardy claim was not “contrary to,” or 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). Because the Court of Appeals of Virginia determined that Jones instructed Williams and constricted his freedom of movement with force and intimidation, the appellate court did not unreasonably determine that Jones’s abduction of Williams was a distinct offense under Virginia law warranting separate punishment.
Garrett,
The judgment of the district court is AFFIRMED.
Notes
. On federal habeas as elsewhere, procedural questions "should ordinarily be considered first,” before on-the-merits review.
See Lambrix v. Singletary,
. This case is, therefore, a far cry from instances in which the Supreme Court or this court has found that the petitioner failed to fairly present his federal claim to the state courts.
Compare Reese,
. We recognize that the conclusion of the Supreme Court of Virginia on state habeas that Jones did not raise a
Brown
claim on direct appeal lies in some tension with our holding above that Jones did fairly present that claim, for federal habeas purposes, to the state courts. Even so, we must defer to the state court’s
application
of
Slayton
to bar Jones’s claim on state habeas. We do, however, retain the obligation to assess the
adequacy
of the
Slayton
rule for federal habeas purposes.
See Brown v. Lee,
. Jones does not assert that
Slayton
is "discretionary” and thus inadequate as a matter of law to bar federal habeas review; the Supreme Court recently rejected this contention.
See Beard v. Kindler,
— U.S.-,
. The Commonwealth did not explicitly raise AEDPA before the district court, but it did clearly raise the AEDPA standard before the district court by asserting that to prevail Jones must show that the state court’s determination was “not merely ... wrong, but ... unreasonably wrong.”
. Jones may well be correct that the state trial court’s "two robberies” theory constituted an erroneous application of Virginia’s incidental