Hollins v. Saffle , 36 F. App'x 366 ( 2002 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 17 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    EDDIE DEWAYNE HOLLINS,
    Petitioner - Appellant,
    v.                                                   No. 01-6287
    (D.C. No. 00-CV-560-M)
    JAMES L. SAFFLE, Warden,                          (W.D. Oklahoma)
    Respondent - Appellee.
    ORDER AND JUDGMENT            *
    Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Petitioner Eddie Dewayne Hollins applies for a certificate of appealability
    (COA) pursuant to 28 U.S.C. § 2253(c), seeking to appeal the district court’s
    dismissal of his petition for a writ habeas corpus filed pursuant to 28 U.S.C.
    § 2254. He also moves for leave to proceed on appeal       in forma pauperis .
    Because we determine that petitioner has failed to demonstrate a “substantial
    showing of the denial of a constitutional right,”   see § 2253(c)(2), we deny his
    application and dismiss the appeal.
    Mr. Hollins requests a COA on only one issue: whether he was subjected
    to double jeopardy by having been tried at a single trial for two crimes that were
    later determined to be a single offense under a double jeopardy analysis.        See
    Hollins v. State , No. F-98-605 (Okla. Crim. App. filed Sept. 2, 1999) (reversing
    conviction for assault with a dangerous weapon and remanding for dismissal of
    that count because punishment for both that crime and the crime of using a motor
    vehicle to facilitate the discharge of a firearm violated the prohibition against
    double jeopardy). Mr. Hollins claims that the district court erroneously construed
    this claim as a matter of state law instead of as a matter of constitutional law.
    He argues that being tried for the two crimes violated the double jeopardy clause.
    Mr. Hollins’ argument is without merit.
    The Fifth Amendment’s guarantee against double jeopardy protects
    against three types of abuses: (1) a second prosecution for the same
    offense after an acquittal; (2) a second prosecution for the same
    -2-
    offense after a conviction, and (3) multiple punishments for the same
    offense.
    United States v. German , 
    76 F.3d 315
    , 318 (10th Cir. 1996) (citing   United States
    v. Halper , 
    490 U.S. 435
    , 440 (1989)). Mr. Hollins was not tried twice for the two
    offenses. Because one of his convictions was dismissed, he has not been
    convicted or punished twice for the same offense. The double jeopardy
    prohibition is simply not implicated under the facts of this case. Mr. Hollins has
    failed to meet his burden to demonstrate a “substantial showing of the denial of
    a constitutional right.” § 2253(c)(2);   see also Slack v. McDaniel , 
    529 U.S. 473
    ,
    483-84 (2000).
    We DENY petitioner’s application for a COA, GRANT his motion to
    proceed in forma pauperis , and DISMISS the appeal.
    The mandate shall issue forthwith.
    Entered for the Court
    Stephanie K. Seymour
    Circuit Judge
    -3-
    

Document Info

Docket Number: 01-6287

Citation Numbers: 36 F. App'x 366

Judges: Baldock, Porfilio, Seymour

Filed Date: 5/17/2002

Precedential Status: Non-Precedential

Modified Date: 8/3/2023