                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 11 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 RICHARD D. EATON,

          Petitioner-Appellant,
                                                        No. 96-6321
 v.
                                                 (D.C. No. # CIV-95-929-R)
                                                        (W.D. Okla.)
 RON WARD; ATTORNEY GENERAL
 OF THE STATE OF OKLAHOMA,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, 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); 10th Cir. R. 34.1.9. 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        This order and judgment is not binding precedent except under the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.
      Appellant Richard D. Eaton, an Oklahoma state prisoner, filed a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District

Court for the Eastern District of Oklahoma. 1 In August 1996, the district court

denied Mr. Eaton's petition for habeas relief. The court also denied Mr. Eaton a

certificate of probable cause for appeal. Mr. Eaton now seeks to appeal the

judgment and final order of the district court.



I. FACTUAL AND PROCEDURAL BACKGROUND

      In October 1983, the State of Oklahoma charged Mr. Eaton as a juvenile on

five separate counts in the juvenile division of Oklahoma District Court. On

November 23, 1983, the juvenile court held a "Prosecutive Merit Hearing for

Certification." At this hearing, Mr. Eaton alleges the government introduced

evidence relevant to counts one and two of the juvenile petition. 2 Mr. Eaton also

alleges he confessed to the crimes the state charged him with at the certification

hearing.




      1
       In June 1995, the United States District Court for the Eastern District of
Oklahoma transferred this action to the United States District Court for the
Western District of Oklahoma pursuant to 28 U.S.C. § 1406(a).

      2
         Apparently, the government dismissed counts three, four, and five of the
juvenile petition.


                                         -2-
      On December 16, 1983, the juvenile court conducted an "Amenability

Hearing" to determine whether Mr. Eaton was amenable to treatment within the

juvenile system. Based on the hearing, the juvenile court issued a written order

transfering Mr. Eaton to the adult division of the district court and waiving

juvenile jurisdiction over Mr. Eaton. In the order, the court noted it "ha[d]

previously found prosecutive merit as to Counts one through three of the State's

petition."

      Following the Amenability Hearing, the state filed a felony information in

Pottawatomie County District Court charging Mr. Eaton with unauthorized use of

vehicle and second degree burglary. 3 On January 8, 1984, Mr. Eaton pled guilty

to the charges in the felony information.

      Thereafter, on November 14, 1986, Mr. Eaton pled guilty to a two-count

information charging him with "uttering a forged instrument, after former

conviction of two or more felonies." Mr. Eaton's 1984 convictions for

unauthorized use of vehicle and second degree burglary were the "former" felony

convictions supporting the charges in the 1986 information. The Oklahoma

district court sentenced Mr. Eaton to twenty years imprisonment on each count in

the 1986 indictment, each sentence to run concurrently with the other.


      3
         The charges in the felony information were essentially the same charges
asserted against Mr. Eaton in counts one and two of the juvenile petition.


                                         -3-
      Following his 1986 convictions, Mr. Eaton filed a motion for post-

conviction relief in state district court, alleging his convictions and sentences

violated the Double Jeopardy Clause of the Fifth Amendment. The Oklahoma

district court concluded there was no merit to Mr. Eaton's allegations and denied

Mr. Eaton's motion. The Oklahoma Court of Appeals agreed and also determined

Mr. Eaton's double jeopardy claim was barred on procedural grounds.

      On May 24, 1995, Mr. Eaton filed a petition for a writ of habeas corpus in

Oklahoma federal court. Once again, Mr. Eaton requested the court to set aside

his convictions on the basis of double jeopardy. Similar to the Oklahoma Court

of Appeals, the district court determined Mr. Eaton's double jeopardy claim

lacked merit and was procedurally barred. Hence, the district court denied Mr.

Eaton's petition for a writ of habeas corpus and denied Mr. Eaton a certificate of

probable cause.



II. CERTIFICATE OF APPEALABILITY

      Mr. Eaton seeks to appeal the district court's denial of his petition for a writ

of habeas corpus. 28 U.S.C. § 2253(c)(1)(A) provides "an appeal may not be

taken to the court of appeals from ... the final order in a habeas corpus proceeding

in which the detention complained of arises out of process issued by a State

court" unless a circuit judge issues a certificate of appealability. "A certificate of


                                          -4-
appealability may issue ... only if the applicant has made a substantial showing of

the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Thus, we must

determine whether Mr. Eaton has made a substantial showing of the denial of a

constitutional right. If Mr. Eaton has failed to make such a showing, we must

dismiss his appeal.

      Mr. Eaton contends the government obtained his 1984 convictions for

unauthorized use of vehicle and second degree burglary in violation of the Double

Jeopardy Clause. The unauthorized use of vehicle and second degree burglary

charges were essentially the same offenses charged in counts one and two of the

1983 juvenile petition filed against Mr. Eaton. Mr. Eaton argues that "jeopardy

attached" with respect to these charges during the November 1983 prosecutive

merit proceeding in juvenile court. Thus, according to Mr. Eaton, the subsequent

prosecution and conviction on these charges in adult court violated Mr. Eaton's

rights under the Double Jeopardy Clause.

      The unauthorized use of vehicle and second degree burglary convictions are

the underlying "former" felony convictions supporting Mr. Eaton's 1986

convictions for "uttering a forged instrument, after former conviction of two or

more felonies." Mr. Eaton argues that because the state obtained the 1984

convictions in violation of the Double Jeopardy Clause, the state also obtained the

1986 convictions in violation of his double jeopardy rights.


                                         -5-
      In support of his contention that the 1983 juvenile prosecutive merit

proceeding subjected him to jeopardy under the Fifth Amendment, Mr. Eaton cites

Breed v. Jones, 421 U.S. 519 (1975). In Breed, the State of California filed a

petition in juvenile court alleging Mr. Breed had committed acts which, if

committed by an adult, would constitute robbery. 421 U.S. at 521. The juvenile

court then held an adjudicatory hearing at which the court determined Mr. Breed

had committed the acts alleged in the juvenile petition. Id. at 521-22. Thereafter,

the juvenile court found Mr. Breed "unfit for treatment as a juvenile," and

transferred Mr. Breed to adult court for prosecution. Id. at 524. The Superior

Court of Los Angeles County subsequently found Mr. Breed guilty of first degree

robbery. Id. at 525.

      Mr. Breed then filed a petition for a writ of habeas corpus alleging his

transfer to adult court and prosecution therein subjected him to double jeopardy in

violation of the Fifth Amendment. Id. at 525-26. The Supreme Court agreed with

Mr. Breed, finding a juvenile is put in jeopardy "at a proceeding whose object is

to determine whether he has committed acts that violate a criminal law and whose

potential consequences include both the stigma inherent in such a determination

and the deprivation of liberty for many years." Id. at 529. The Court determined

jeopardy attaches at the point in a juvenile proceeding where a juvenile is "'put to

trial before the trier of the facts.'" Id. at 531 (quoting United States v. Jorn, 400


                                           -6-
U.S. 470, 479 (1971)). The Court recognized its holding will require, in most

cases, that a decision to transfer a juvenile be made prior to an adjudicatory

hearing. Id. at 535-36. However, the Court specifically noted "nothing decided

today forecloses States from requiring as a prerequisite to the transfer of a

juvenile, substantial evidence that he committed the offense charged, so long as

the showing required is not made in an adjudicatory proceeding." Id. at 538 n.18.

      In the present case, the juvenile court conducted a "Prosecutive Merit

Hearing for Certification" in November 1983. The record reveals the court

merely determined at this hearing that there was "prosecutive merit" to counts one

through three of the juvenile petition. Unlike Breed, there was no determination

that Mr. Eaton did or did not commit the offenses alleged in the juvenile petition.

Since the Prospective Merit Hearing was not an adjudicative hearing, Mr. Eaton

was not put in jeopardy by this hearing. See Breed, 421 U.S. at 529, 538 n.18.

Nor did the December 1983 Amenability Hearing put Mr. Eaton in jeopardy. The

juvenile court simply determined Mr. Eaton should be transferred to adult court at

this hearing. The record indicates that jeopardy did not attach against Mr. Eaton

until after the juvenile court transferred his case to adult court. Consequently,

Mr. Eaton's double jeopardy claim is without merit.




                                          -7-
III. CONCLUSION

      Having determined there is no merit to Mr. Eaton's double jeopardy

argument, we hereby conclude a certificate of appealability should not issue. 4



                                      Entered for the Court


                                      WADE BRORBY
                                      United States Circuit Judge




      4
          In Mr. Eaton's opening brief, he raises the issue of whether "the state
district court [or] the Oklahoma Court of Criminal Appeals found [Mr. Eaton]
procedurally barred from post-conviction review of his stated double jeopardy
claim based upon prior juvenile proceedings." Because we have determined Mr.
Eaton's double jeopardy claim is without merit and a certificate of appealability
should not issue, we have no reason to resolve this issue.


                                        -8-
