                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 13 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JEFFREY D. KING,

                Petitioner-Appellant,

    v.                                                   No. 97-6009
                                                     (D.C. No. 96-CV-778)
    H. N. SCOTT,                                         (W.D. Okla.)

                Respondent-Appellee.




                             ORDER AND JUDGMENT *



Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.


         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      This order and judgment is not binding precedent, except under the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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      Petitioner-appellant Jeffrey Dean King appeals the district court’s denial of

his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.

Because petitioner has not made a substantial showing of the denial of a

constitutional right, we deny his application for a certificate of appealability and

dismiss the appeal. 1

      In 1989, petitioner was charged with first degree malice-aforethought

murder, but was convicted of second degree felony murder. Because felony

murder was not a lesser included offense of first degree malice-aforethought

murder, the Oklahoma Court of Criminal Appeals reversed his conviction, and

remanded the case for another trial. Upon remand, the state amended the

information to charge petitioner with alternative counts of second degree

depraved-mind murder and second degree felony murder. The jury again

convicted petitioner of second degree felony murder, and petitioner was sentenced

to 400 years’ incarceration. On appeal, the Oklahoma Court of Criminal Appeals

affirmed, rejecting petitioner’s claims of double jeopardy, speedy trial violation,

and insufficiency of the evidence.




1
       On April 24, 1996, the President signed into law the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214, which amended 28 U.S.C. § 2253(c)(2) to require that a petitioner obtain a
“certificate of appealability” as a prerequisite to bringing an appeal. Because
petitioner filed his petition on May 16, 1996, he is subject to this requirement.

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      Petitioner brought this habeas proceeding in May 1996, alleging that his

second trial constituted double jeopardy and violated his right to due process and

a speedy trial. After considering petitioner’s arguments, a magistrate judge

recommended that the petition for a writ of habeas corpus be denied. Petitioner

objected to the magistrate judge’s recommendation, but because of a delay in the

prison mail system, his objections were not filed until after the ten-day period

within which objections must be filed. The district court adopted the magistrate

judge’s report and recommendation, and this appeal followed.

      On appeal, petitioner argues that the district court improperly dismissed his

objections to the magistrate judge’s report and recommendation, and that the state

lacked jurisdiction to amend the information to charge him with second degree

murder after he was implicitly acquitted of the only offense charged in the

original information. We conclude petitioner has not made a substantial showing

of the denial of a constitutional right as to either claim. See 28 U.S.C.

§ 2253(c)(2).

      Although the district court noted that petitioner filed his objections to the

magistrate judge’s recommendation one day after they were due, the court did not

reject petitioner’s objections. Instead, the court expressly reviewed the magistrate

judge’s report and recommendation “de novo,” which is the standard applied

when timely objections are filed. See 28 U.S.C. § 636(b)(1).


                                         -3-
      Further, there was no impropriety in amending the information to charge

petitioner with second degree murder after he was implicitly acquitted of first

degree murder. The bar of double jeopardy only prohibited petitioner’s retrial for

first degree murder, the charge upon which he was implicitly acquitted. See

Green v. United States, 355 U.S. 184, 189-191 (1957) (holding defendant who

was charged with first degree murder and convicted of second degree murder

could not be retried on first degree murder charge after second degree murder

conviction was overturned). Double jeopardy did not prohibit petitioner’s retrial

for second degree murder after his conviction was reversed on appeal. See Tibbs

v. Florida, 457 U.S. 31, 39-42 (1982) (explaining that a defendant who

successfully appeals a conviction may be retried for the same offense unless the

reversal was based on a finding that the evidence was legally insufficient); see

also Montana v. Hall, 481 U.S. 400, 404 (1987) (“It is clear that the Constitution

permits retrial after a conviction is reversed because of a defect in the charging

instrument.”).

      Petitioner’s argument that the state was without jurisdiction to retry him on

an “amended” information, as opposed to a “new” information, is meritless. The

amended information began petitioner’s prosecution anew, this is not a case in

which petitioner was prejudiced by an amendment charging a different offense in

the middle of trial. Cf. Fed. R. Crim. P. 7(e). Whether the information was


                                         -4-
“new” or “amended” is merely a matter of semantics, and does not establish a

substantial violation of petitioner’s constitutional rights.

      Petitioner’s application for a certificate of appealability is DENIED, and

the appeal is DISMISSED. The mandate shall issue forthwith.



                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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