MEMORANDUM ***
Prisoner Daniel Lacey appeals the district courts denial of his habeas petition alleging ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) and review a district courts 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 Montanas 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 Montanas 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, 351 Mont. 389, 212 P.3d 1063 (2009), a case decided three months after Laceys 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 courts interpretation of state law.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005). We are doubly deferential when reviewing ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052.
Laceys 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, 104 S.Ct. 2052). 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 Laceys counsel were not ineffective for failing to raise a double jeopardy argument because “Neufeld was a significant departure from [Montanas] 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, 386 Mont. 204, 389 P.3d 233, 242 (2017).
We cannot disregard the Montana Supreme Courts determination that Neufeld was a significant departure from prior state jurisprudence. Bradshaw, 546 U.S. at 76, 126 S.Ct. 602; 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, 421, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014). The Montana Supreme Courts determination of its own laws is beyond the purview of this courts habeas review because “state courts are the ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (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, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Counsels 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.