          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                               November 7, 2007
                                No. 04-31240
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk
DERRICK T. MITCHELL

                                            Petitioner-Appellant

v.

WARDEN LOUISIANA STATE PENITENTIARY, on behalf of N Burl Cain

                                            Respondent-Appellee


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 3:03-CV-1369


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Derrick T. Mitchell, Louisiana prisoner # 297573, appeals the district
court’s denial of his 28 U.S.C. § 2254 application, challenging his conviction and
sentence for second degree murder and aggravated kidnaping. At issue is
whether Mitchell’s convictions for both second degree murder and aggravated
kidnaping violate the constitutional prohibition against double jeopardy.
Mitchell contends that he was convicted under the theory of felony murder, and




      *
      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should not be published and is not precedent except under the limited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.
                                  No. 04-31240

therefore, his conviction for the underlying felony of aggravated kidnaping is an
essential element of second degree murder.
      Under the provisions of the Antiterrorism and Effective Death Penalty Act
(AEDPA), habeas relief may not be granted to any issue that was adjudicated on
the merits by the state court unless the state court’s conclusions were “contrary
to” or involved an “unreasonable application” of clearly established federal law
as determined by the Supreme Court or were based on an unreasonable
determination of the facts. 28 U.S.C. § 2254(d)(1), (2).
      The state pursued prosecution against Mitchell under both the specific
intent murder and felony murder theories. The jury was instructed on both
theories, and the verdict did not reveal under which theory Mitchell was
convicted. The pursuit of two different murder theories in conjunction with a
charge for an underlying felony does not violate clearly established federal law.
Taylor v. Cain, 227 F. App’x 387, 388 (5th Cir. 2007). Additionally, the state
appellate court found that the facts presented at Mitchell’s trial supported a
conviction for specific intent murder. The state court’s determination is not
unreasonable. See § 2254(d)(2).
      Accordingly, the judgment of the district court is AFFIRMED.




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