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This order and judgment is not binding precedent, except under the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
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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
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