UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-60433
WILLIE L. BULLINS,
Petitioner-Appellant
VERSUS
WALTER BOOKER; MIKE MOORE,
Respondents-Appellees.
Appeal from the United States District Court
For the Northern District of Mississippi
(2:98-CV-98-D-B)
January 10, 2001
Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit
Judges.
PER CURIAM:1
Willie Bullins (“Bullins”) appeals the district court’s denial
of his petition for writ of habeas corpus. Bullins contends that
the prosecutor in his Mississippi state court murder trial goaded
him into moving for a mistrial by intentionally committing a
discovery violation and that, therefore, Bullins’s retrial and
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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this opinion should not be published and is not precedent except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.
subsequent conviction for murder violated his constitutional
guarantee against double jeopardy. For the following reasons, we
affirm the district court’s denial of Bullins’s habeas petition.
BACKGROUND
In 1995, a Mississippi jury convicted Bullins of murder and
aggravated assault. Bullins then sought post-conviction relief
from the Mississippi Supreme Court. There, Bullins argued, among
other things, that his conviction violated his constitutional
guarantee against double jeopardy. The Mississippi Supreme Court
denied relief.
Bullins then recast his double jeopardy argument as a petition
for writ of habeas corpus to the district court. On the
recommendation of the magistrate judge, the district court denied
Bullins’s petition. Specifically, the district court found that
the prosecutor did not intend to induce a mistrial by withholding
during discovery and attempting to introduce at trial evidence that
Bullins went home shortly after the murders and washed his clothes
of incriminating physical evidence. Because the prosecutor’s
discovery violation was not an intentional effort to goad Bullins
into moving for a mistrial, the court concluded, Bullins’s retrial
and subsequent conviction for murder did not violate the
Constitution’s Double Jeopardy Clause. Bullins appeals that
holding.
DISCUSSION
The district court did not err in denying Bullins’s habeas
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petition. The court correctly applied The Antiterrorism and
Effective Death Penalty Act (“AEDPA”), which determines when a
federal court may grant a habeas petition with respect to a claim
adjudicated on the merits in state court. AEDPA allows a federal
court to grant habeas relief on such a claim only when the state
adjudication is “contrary to, or involve[s] an unreasonable
application of clearly established federal law, as determined by
the Supreme Court of the United States” or makes “an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d).
First, the district court correctly concluded that the
Mississippi court that denied Bullins’s request for post-conviction
relief adjudicated his double jeopardy claim on the merits.
Adjudication on the merits occurs when a court’s disposition of a
case is “substantive” rather than “procedural” in character. See
Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997) (“‘Resolution
on the merits’ is a term of art in the habeas context that refers
not to the quality of a court’s review of claims, but rather to the
court’s disposition of the case – whether substantive or
procedural”). As in Green, we discern nothing in the Mississippi
court order denying Bullins’s request for post-conviction relief
that makes its disposition “procedural.” See id. (in reaching
holding that petitioner’s habeas claim was adjudicated on the
merits in state court, noting that “[n]either the trial court’s nor
the Court of Criminal Appeals’s order makes mention of procedural
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grounds for denying relief, nor has [petitioner] brought any to our
attention”). Indeed, Bullins’s Application for Leave to File Post
Conviction Motion in the Trial Court and its accompanying
Memorandum of Authorities assert only substantive constitutional
arguments. The Mississippi court’s denial of that application,
therefore, was “substantive” in character and a final judgment on
the merits and the district court properly treated it as such.
Second, the district court correctly held that Bullins’s
habeas petition did not satisfy the AEDPA standard. That is, the
court correctly determined that the Mississippi court’s denial of
Bullins’s application for post conviction relief was not “an
unreasonable application of clearly established federal law, as
determined by the Supreme Court of the United States” and made no
“unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Bullins contends that the district court erroneously held that the
prosecutor did not intend to goad him into moving for a mistrial by
withholding during discovery and attempting to introduce at trial
evidence that Bullins went home shortly after the murders and
washed his clothes of incriminating physical evidence from the
crime scene. On this contention his double jeopardy argument
(indeed, his petition) depends. See, for example, United States v.
Landerman, 109 F.3d 1053, 1068 (5th Cir. 1997) (the Double Jeopardy
Clause generally does not bar the state from retrying a defendant
who moves for a mistrial but does prohibit retrial “when the
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governmental conduct was intended to goad the defendant into moving
for a mistrial”).
The district court's holding here was not erroneous. The
record does not support Bullins's contention that the prosecutor
intended with his discovery violation to goad him into moving for
a mistrial. Bullins’s contention is not supported by the record.
In particular, Bullins does not explain why the prosecutor
vigorously opposed a continuance or retrial on account of the
discovery violation and why the prosecutor sought, in an attempt to
avert a mistrial, to have the court instruct the jury to ignore the
testimony concerning Bullins’s freshly washed clothes (i.e., to
ignore the evidence presented through the discovery violation).
Bullins’s former counsel even opined in an affidavit that Bullins’s
“goading” allegation is “blatantly unfounded.”
CONCLUSION
Because the district court did not err in finding that the
prosecutor in Bullins’s case did not intend by committing a
discovery violation to goad Bullins into moving for a mistrial and
correctly applied the AEDPA habeas standard, we affirm its denial
of Bullins’s habeas petition.
AFFIRMED
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