F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 13 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JEFFREY D. KING,
Petitioner-Appellant,
v. No. 97-6009
(D.C. No. 96-CV-778)
H. N. SCOTT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
Petitioner-appellant Jeffrey Dean King appeals the district court’s denial of
his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.
Because petitioner has not made a substantial showing of the denial of a
constitutional right, we deny his application for a certificate of appealability and
dismiss the appeal. 1
In 1989, petitioner was charged with first degree malice-aforethought
murder, but was convicted of second degree felony murder. Because felony
murder was not a lesser included offense of first degree malice-aforethought
murder, the Oklahoma Court of Criminal Appeals reversed his conviction, and
remanded the case for another trial. Upon remand, the state amended the
information to charge petitioner with alternative counts of second degree
depraved-mind murder and second degree felony murder. The jury again
convicted petitioner of second degree felony murder, and petitioner was sentenced
to 400 years’ incarceration. On appeal, the Oklahoma Court of Criminal Appeals
affirmed, rejecting petitioner’s claims of double jeopardy, speedy trial violation,
and insufficiency of the evidence.
1
On April 24, 1996, the President signed into law the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214, which amended 28 U.S.C. § 2253(c)(2) to require that a petitioner obtain a
“certificate of appealability” as a prerequisite to bringing an appeal. Because
petitioner filed his petition on May 16, 1996, he is subject to this requirement.
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Petitioner brought this habeas proceeding in May 1996, alleging that his
second trial constituted double jeopardy and violated his right to due process and
a speedy trial. After considering petitioner’s arguments, a magistrate judge
recommended that the petition for a writ of habeas corpus be denied. Petitioner
objected to the magistrate judge’s recommendation, but because of a delay in the
prison mail system, his objections were not filed until after the ten-day period
within which objections must be filed. The district court adopted the magistrate
judge’s report and recommendation, and this appeal followed.
On appeal, petitioner argues that the district court improperly dismissed his
objections to the magistrate judge’s report and recommendation, and that the state
lacked jurisdiction to amend the information to charge him with second degree
murder after he was implicitly acquitted of the only offense charged in the
original information. We conclude petitioner has not made a substantial showing
of the denial of a constitutional right as to either claim. See 28 U.S.C.
§ 2253(c)(2).
Although the district court noted that petitioner filed his objections to the
magistrate judge’s recommendation one day after they were due, the court did not
reject petitioner’s objections. Instead, the court expressly reviewed the magistrate
judge’s report and recommendation “de novo,” which is the standard applied
when timely objections are filed. See 28 U.S.C. § 636(b)(1).
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Further, there was no impropriety in amending the information to charge
petitioner with second degree murder after he was implicitly acquitted of first
degree murder. The bar of double jeopardy only prohibited petitioner’s retrial for
first degree murder, the charge upon which he was implicitly acquitted. See
Green v. United States, 355 U.S. 184, 189-191 (1957) (holding defendant who
was charged with first degree murder and convicted of second degree murder
could not be retried on first degree murder charge after second degree murder
conviction was overturned). Double jeopardy did not prohibit petitioner’s retrial
for second degree murder after his conviction was reversed on appeal. See Tibbs
v. Florida, 457 U.S. 31, 39-42 (1982) (explaining that a defendant who
successfully appeals a conviction may be retried for the same offense unless the
reversal was based on a finding that the evidence was legally insufficient); see
also Montana v. Hall, 481 U.S. 400, 404 (1987) (“It is clear that the Constitution
permits retrial after a conviction is reversed because of a defect in the charging
instrument.”).
Petitioner’s argument that the state was without jurisdiction to retry him on
an “amended” information, as opposed to a “new” information, is meritless. The
amended information began petitioner’s prosecution anew, this is not a case in
which petitioner was prejudiced by an amendment charging a different offense in
the middle of trial. Cf. Fed. R. Crim. P. 7(e). Whether the information was
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“new” or “amended” is merely a matter of semantics, and does not establish a
substantial violation of petitioner’s constitutional rights.
Petitioner’s application for a certificate of appealability is DENIED, and
the appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
John C. Porfilio
Circuit Judge
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