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      This order and judgment is not binding precedent, except under the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