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

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

2 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.”

(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,

(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

(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

3 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.”

(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,

(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

4 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

5