                 Not for Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                         For the First Circuit
Nos. 02-2398
     02-2560

                              LANCE 3X HULLUM,

                         Petitioner, Appellant,

                                       v.

                MICHAEL MALONEY, COMMISSIONER OF THE
                     DEPARTMENT OF CORRECTIONS,

                          Respondent, Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

               [Hon. Rya W. Zobel, U.S. District Judge]


                                    Before

                       Torruella, Circuit Judge,
                     Stahl, Senior Circuit Judge,
                      and Lynch, Circuit Judge.



     Lance 3X Hullum on brief pro se.
     Thomas F. Reilly, Attorney General, and Annette C. Benedetto,
Assistant Attorney General, on brief for appellee.



                                June 30, 2004
          PER CURIAM.    This habeas appeal presents a single issue

involving the Double Jeopardy Clause.         To prevail on this claim,

petitioner must establish that the state court's decision "was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States."   28 U.S.C. § 2254(d)(1).          As petitioner has not

come close to making such a showing, we affirm the denial of habeas

relief.

          Following his brutal assault on a fellow Massachusetts

inmate,   petitioner    Lance   Hullum       was   subjected      to   prison

disciplinary proceedings and sanctioned with a 66-month sentence to

the Departmental Disciplinary Unit (DDU) at MCI Cedar Junction.

For that same conduct, he was also indicted in state court for

assault and battery with a dangerous weapon (along with another

charge that was later dropped).      Claiming that the administrative

sanction constituted    punishment     for    double   jeopardy    purposes,

petitioner moved for dismissal of the indictment.         He prevailed on

this argument at the trial court level, but the Supreme Judicial

Court (SJC), in a pair of opinions addressing successive appeals

brought by petitioner and other inmates, found no double jeopardy

violation.   See Commonwealth v. Forte, 423 Mass. 672 (1996); Clark

v. Commonwealth, 428 Mass. 1011 (1998) (rescript).                Petitioner

thereafter pled guilty to the criminal charge.


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          After another round of state court challenges, petitioner

sought habeas relief in federal court, advancing four separate

claims.   The district court ended up denying relief under United

States v. Broce, 488 U.S. 563 (1989), concluding that petitioner's

voluntary and counseled guilty plea effected a waiver of any

ensuing attempt to collaterally attack his conviction.    The court

did, however, certify the double jeopardy issue for appeal.

          At the outset, petitioner disputes the finding of waiver.

He claims to fall within an exception to the Broce rule announced

in Menna v. New York, 423 U.S. 61 (1975) (per curiam).   Addressing

an analogous double jeopardy claim, the Court there held that

"[w]here the State is precluded by the United States Constitution

from haling a defendant into court on a charge, federal law

requires that a conviction on that charge be set aside even if the

conviction was entered pursuant to a counseled plea of guilty."

Id. at 62 (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)).

Petitioner's reliance on Menna is arguably justified.    See, e.g.,

Jackson v. Coalter, 337 F.3d 74, 78-81 (1st Cir. 2003) (applying

Menna exception under somewhat comparable circumstances). For this

reason, and because petitioner's claim so plainly fails to meet the

rigorous § 2254(d)(1) standards, we sidestep the waiver issue and

turn to the merits.

          As mentioned, our task is not to decide whether the SJC's

double jeopardy ruling was correct, but only whether it contravened


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or unreasonably applied Supreme Court precedent.    It clearly did

neither of those things.   At the time petitioner first raised his

double jeopardy claim, the view was widely accepted that "prison

discipline does not preclude a subsequent criminal prosecution or

punishment for the same acts."    Garrity v. Fiedler, 41 F.3d 1150,

1152 (7th Cir.   1994) (listing cases from eight other circuit

courts).   In concluding that a different result was nonetheless

warranted, the first superior court judge in petitioner's case

relied on United States v. Halper, 490 U.S. 435 (1989)–-and in

particular its comment that "a civil sanction that cannot fairly be

said solely to serve a remedial purpose, but rather can only be

explained as also serving either retributive or deterrent purposes,

is punishment," id. at 448.

           Yet Halper does not assist petitioner.   For one thing,

those federal courts that reconsidered the issue in the wake of

Halper uniformly deemed that decision inapplicable in the prison-

discipline context.   See, e.g., United States v. Mayes, 158 F.3d

1215, 1220 n.9 (11th Cir. 1998) (collecting cases); cf. United

States v. Stoller, 78 F.3d 710, 717-18 (1st Cir. 1996) (limiting

Halper to compensatory, monetary penalties).   More important, the

Supreme Court narrowed the Halper decision in United States v.

Ursery, 518 U.S. 267, 284 n.2, 286 (1996), and then "in large part

disavow[ed]" the entire Halper analysis in Hudson v. United States,

522 U.S. 93, 96, 100-02 (1997).


                                 -4-
            The Hudson Court noted that "[i]f a sanction must be

'solely'     remedial    (i.e.,      entirely     nondeterrent)    to    avoid

implicating the Double Jeopardy Clause, then no civil penalties

are beyond the scope of the Clause."                Id. at 102.     Instead,

reverting to "traditional double jeopardy doctrine," id. at 101,

it declared that double jeopardy "protects only against the

imposition    of     multiple   criminal    punishments      for   the    same

offense," id. at 99.        As it did in Ursery, see 518 U.S. at 288,

the Hudson Court applied a two-part test to determine "[w]hether

a particular punishment is criminal or civil," 522 U.S. at 99.

The first step is to ascertain what the government intended in

this regard.         See id.      The second is to ask "whether the

statutory scheme was so punitive either in purpose or effect as

to transfor[m] what was clearly intended as a civil remedy into

a criminal penalty." Id. (internal quotation marks and citations

omitted).    The Court listed seven "guideposts" to facilitate the

latter inquiry, see id. at 99-100, and added that "only the

clearest proof will suffice to override legislative intent" in

that respect, id. at 100 (internal quotation marks omitted).

            Far from deviating from these principles, the SJC's

disposition     of    the   double     jeopardy     issue   was    consistent

therewith.    It determined that "imposition of prison discipline

is a civil proceeding," Forte, 423 Mass. at 676, and that DDU

confinement had a "remedial purpose" as well as a punitive one,


                                      -5-
id. at 677.    On the sparse record in Forte, it also found no

showing "that DDU confinement is so extreme as to any defendant

in relation to his wrongdoing that the double jeopardy clause is

implicated."   Id at 678.    The superior court on remand reached

the same conclusion after making detailed findings of fact, and

the SJC justifiably endorsed that determination in Clark.      See

428 Mass. at 997.     Nothing in the SJC's analysis contravened or

unreasonably applied Supreme Court precedent.     Cf. Jackson, 337

F.3d at 81-85 (holding that double jeopardy claim failed to

satisfy § 2254(d)(1) standards).

          Affirmed.




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