Milner v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10461
Summary Calendar
KENNETH GLENN MILNER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:94-CV-207
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February 17, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kenneth Glenn Milner, Texas-state prisoner #573559, appeals
the district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Milner argues that his conviction
for the first degree of the murder of Frankie Garcia in cause no.
2379 violates the Double Jeopardy Clause and that the district
court’s finding of waiver is in error because the double jeopardy
violation is apparent on the face of the indictment. Milner also
contends that his counsel rendered ineffective assistance in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-10461
-2-
3failing to advise him of his double jeopardy defense and that
his guilty plea was unknowing and involuntary. The respondent
confesses error, conceding that the district court’s finding of
waiver is not supported by legal authority and that Milner’s
conviction in cause no. 2379 violates the Double Jeopardy Clause.
The Double Jeopardy Clause of the Fifth Amendment protects
against: (1) a second prosecution for the same offense after
acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977). “The same-elements test
. . . inquires whether each offense contains an element not
contained in the other; if not, they are the `same offence’ and
double jeopardy bars additional punishment and successive
prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993);
see Blockburger v. United States, 284 U.S. 299 (1932). A guilty
plea waives a double jeopardy claim unless either the knowing and
voluntary nature of the plea is challenged or the double jeopardy
violation is discernible on the face of the indictment or record.
See Taylor v. Whitley, 933 F.2d 325, 327-28 (5th Cir. 1991).
Count three of Milner’s indictment in cause no. 2379
contains no element which also was not required to be proved in
Milner’s attempted capital murder prosecutions, cause nos. 2404
and 2405. Thus, Milner’s conviction in cause no. 2379 violates
the Double Jeopardy Clause. See Dixon, 509 U.S. at 696. Because
the double jeopardy violation is apparent on the face of the
indictment, Milner did not waive the claim by pleading guilty.
See Taylor, 933 F.2d at 327-28.
No. 99-10461
-3-
The judgment of the district court denying Milner’s habeas
petition is VACATED and this case is REMANDED to the district
court with instructions to grant Milner’s petition for a writ of
habeas corpus. Milner’s claims of ineffective assistance of
counsel and an involuntary guilty plea are moot.
VACATED AND REMANDED.