          United States Court of Appeals
                     For the First Circuit

No. 13-1965

                         RYAN MARSHALL,

                      Petitioner, Appellee,

                               v.

                     BRISTOL SUPERIOR COURT,

                     Respondent, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

        [Hon. Edward F. Harrington, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
               Howard and Kayatta, Circuit Judges.


     Amy L. Karangekis, Assistant Attorney General, with whom
Martha Coakley, Attorney General of Massachusetts, and Kris C.
Foster, Assistant Attorney General, were on brief, for appellant.
     Richard J. Fallon for appellee.



                          May 23, 2014
          LYNCH, Chief Judge. Petitioner Ryan Marshall was granted

a writ of habeas corpus, pursuant to 18 U.S.C. § 2241, on double

jeopardy grounds.     The writ bars Marshall's imminent prosecution

for the murder of George Carpenter pending in the Bristol County

Superior Court.

          Marshall was indicted in 2001 and convicted in 2006 as an

accessory before the fact to Carpenter's murder. The Massachusetts

Supreme Judicial Court ("SJC") reversed that conviction in August

2010.   It reasoned that although the evidence did establish

Marshall's "active participation in, and presence during, the

commission of the felony," the conviction could not stand where the

conduct that was charged was required to have taken place before

the felony was committed.     Commonwealth v. Rodriguez, 931 N.E.2d

20, 43 (Mass. 2010).

          Following     the   SJC's     decision   in    Rodriguez,   the

Commonwealth then indicted Marshall for murder.         Marshall moved to

dismiss this latter indictment, arguing that the SJC's earlier

reversal had been based on insufficiency of the evidence and,

hence, that the Double Jeopardy Clause as incorporated against the

states barred a second prosecution. In affirming the denial of his

motion to dismiss, the SJC disagreed with Marshall, holding that

its earlier reversal had been based on a variance between the crime

charged and the crime proved at trial under state law. Marshall v.

Commonwealth, 977 N.E.2d 40, 48 (Mass. 2012). Under both state and


                                  -2-
federal law, it held that a second prosecution following a reversal

based on such a variance does not give rise to a double jeopardy

problem.    Id.

            Marshall filed a petition for habeas relief under 18

U.S.C. § 2241 seeking to block his pending prosecution. On federal

habeas review, the district court granted petitioner's request for

relief.    Marshall v. Bristol Cnty. Superior Court, 951 F. Supp. 2d

232, 236 (D. Mass. 2013). The district court accepted petitioner's

double jeopardy argument.       Id. at 235-36.     In addition, the

district court held that a newly asserted and hence unexhausted "ex

post facto law" argument did not preclude it from granting relief.

Id. at 234 & n.1.    The Commonwealth has appealed.   The issuance of

the writ was stayed pending our review.

            We reverse.   We hold that, under Tibbs v. Florida, 457

U.S. 31 (1982), this court is bound by the SJC's interpretation of

its earlier reversal and the requirements of Massachusetts law.

Bound as we are to accept the SJC's interpretations of its own

state law and its own decision in Marshall of what it held in

Rodriguez, petitioner's double jeopardy argument necessarily fails.

We also reject petitioner's ex post facto claim as patently without

merit.

                                  I.

            The facts and background of the case are set forth in the

two SJC decisions.    In the early morning of February 16, 2001, the


                                 -3-
victim, George Carpenter, age 45, was socializing with friends at

the home of Donna Medeiros, Marshall's mother.                Rodriguez, 931

N.E.2d at 26-27. Petitioner, his girlfriend, and his three friends

-- Robert Tirado, Jonathan Torres, and Heather Lawrence -- arrived

at the house soon after.1       Id. at 27.

          At   some   point,    an   argument   began   between    Marshall,

Tirado, and the victim.        Id.   The altercation between Tirado and

the victim spilled out into the street when they left Medeiros's

house.   When Carpenter got into his car and tried to drive away,

Tirado slashed the front driver's-side tire.            Id.    After driving


     1
        Tirado, along with Lionel Rodriguez, Orlando Badillo, and
Dennis Smith, was charged with murder in the first degree, while
Torres was indicted as an accessory before the fact to murder in
the first degree. Marshall, 977 N.E.2d at 42 & n.4. Tirado and
Torres were tried first; Tirado was convicted of murder in the
second degree, and Torres was acquitted. Rodriguez, 931 N.E.2d at
26 n.4. After being tried together, both Badillo and Smith were
convicted of murder in the second degree. Id. Tirado's conviction
was affirmed by the Appeals Court, see Commonwealth v. Tirado, 842
N.E.2d 980 (Mass. App. Ct. 2006), as was the order denying his
motion for a new trial, Commonwealth v. Tirado, 898 N.E.2d 890
(Mass. App. Ct. 2009) (table). Badillo's and Smith's convictions
were reversed on the ground that certain medical evidence and
testimony had been improperly admitted. Commonwealth v. Badillo,
968 N.E.2d 942, at *2 (Mass. App. Ct. 2012) (table). "Other than
the improperly admitted evidence, the Commonwealth produced minimal
evidence about Carpenter's physical condition after the assault and
no evidence about the medical cause of his death." Id.
     As to Rodriguez, the jury had found him guilty of murder in
the first degree on a theory of extreme atrocity or cruelty.
Rodriguez, 931 N.E.2d at 25-26. On appeal, the SJC reduced his
conviction to murder in the second degree because, although other
properly admitted evidence established that Rodriguez had committed
an unlawful killing, medical evidence and testimony pertinent to
the theory of extreme atrocity or cruelty was erroneously admitted.
Id. at 34-39.


                                     -4-
the car a short distance, the victim got out of the vehicle and

continued arguing with Tirado.            Id.     The violence escalated when

Marshall and Torres, along with three more of their friends,

arrived on the scene outside.            Id.     With the exception of Torres,

all of the men present attacked the victim, including one who hit

him with a tire iron.          Id. at 27-28.       Marshall kicked the victim

twice and attempted to throw a trash barrel at him.                    Id. at 28.

              The perpetrators left the victim unconscious on the

street,    and    when   police    arrived       they   found    him     bloody      and

unconscious.       Id.   Carpenter died later that day as a result of

acute internal hemorrhaging due to blunt force trauma.                      Id.

A.            Trial

              The prosecution chose to indict Marshall as an accessory

before the fact to murder in the first degree under Mass. Gen. Laws

ch. 274, § 2 ("Whoever aids in the commission of a felony, or is

accessory     thereto    before    the    fact    by    counselling,        hiring    or

otherwise procuring such felony to be committed, shall be punished

in   the   manner     provided    for    the    punishment      of    the   principal

felon.").        Rodriguez, 931 N.E.2d at 39-40.                Marshall was not

indicted for the murder itself.           Though the indictment charged him

with   acts    before    the   murder    was     committed,     the    Commonwealth

proceeded at trial under an "aiding" the murder theory, not under

an accessory before the fact theory.              Id. at 40.         At the close of

the state's presentation of evidence, Marshall's counsel moved for


                                         -5-
a required finding of not guilty, arguing that no evidence had been

presented that, before the beating, Marshall had in any way

"counselled, hired, or otherwise procured" the commission of the

felony.    Id.     The prosecutor agreed, but argued that there was

sufficient evidence for the jury to convict on the aiding theory.

Id.      The trial judge, reasoning that the crime of being an

accessory before the fact is "largely identical to the joint

venture doctrine," denied the motion, id., and the jury convicted

in February 2006, id. at 25.

B.          First SJC Decision: Commonwealth v. Rodriguez

            A co-defendant, Lionel Rodriguez, and Marshall appealed

to the SJC.      Marshall argued that the denial of his motion was in

error because there was insufficient evidence to convict him of

being an accessory before the fact.       Id. at 40.   The SJC agreed

with Marshall; it reasoned first that "the actions of one who

'aids' and 'accessories before the fact' are not the same, and are

separate and distinct forms of accomplice liability."      Id.    Given

this "separate and distinct" conclusion, the SJC reasoned, "the

indictment charging Marshall improperly defined the offense on

which he was tried . . . [and] the [trial court] submitted the case

to the jury with improper instructions, as [it] told the jury that

they could convict Marshall as an accessory before the fact if he

'aided in the commission of the murder of [the victim].'"        Id. at

42-43.     Those instructions were in error because they were not


                                   -6-
consistent with the indictment, which charged conduct that took

place before the felony was committed.           Id. at 43.

            The SJC added that the evidence did establish Marshall's

"active participation in, and presence during, the commission of

the felony," and noted that the state "should have simply added

Marshall's name to that portion of the indictment alleging murder,

without reference to Marshall's acting as an accessory before the

fact."2     Id.    The   SJC    concluded     that   "because       the   evidence

presented   was   legally      insufficient    to    warrant    a    finding   of

Marshall's guilt as an accessory before the fact, Marshall's motion

for a required finding of not guilty should have been allowed."

Id. In a footnote, the SJC expressly noted that Marshall could not

be retried as an accessory before the fact.            Id. at 43 n.34.

C.          Second SJC Decision: Marshall v. Commonwealth

            The Commonwealth indicted Marshall again, this time

charging him with murder for his involvement in the killing,

pursuant to Mass. Gen. Laws ch. 265, § 1.                Marshall moved to

dismiss the indictment, claiming that the second prosecution was

barred by double jeopardy, arguing that "murder is a form or a

'species' of lesser included offense to accessory before the fact

to murder."    Marshall, 977 N.E.2d at 41 (internal quotation marks

omitted).     The state trial judge (who was not the original trial


     2
       Petitioner claims that the prosecution chose to indict him
as an accessory before the fact "so that [he] would not get the
benefit of lesser included crimes such as manslaughter."

                                     -7-
judge) denied the motion, and Marshall appealed to a single justice

of the SJC pursuant to Mass. Gen. Laws ch. 211, § 3.                 Id. at 42.

The justice reserved judgment and presented the issues to the full

SJC.       Id.

                 The SJC rejected Marshall's argument and concluded that

the second indictment was not barred by the Double Jeopardy Clause

as   incorporated.          The   SJC   began   from    the   proposition    that

"[m]urder, prosecuted on a theory of aiding and abetting, is not a

lesser included offense of accessory before the fact to murder.

Rather,      the    two   are   different   species    of   the   same   crime."

Marshall, 977 N.E.2d at 45.              The SJC rejected the portion of

Rodriguez that appeared to read "aiding" the commission of a felony

to be a "separate and distinct" crime from acting as an accessory

before the fact.3          Marshall, 977 N.E.2d at 46-47.           The Marshall

court reasoned that "[a]lthough grounded in the language and

structure of the statute, [the Rodriguez] construction of § 2 goes

too far, and is an outlier among our recent decisions regarding the




       3
        As the Marshall court explained:
     Whether the defendant engages in conduct before the
     commission of the victim's murder to ensure its
     accomplishment, aids in its commission by others,
     or commits the murderous assault himself, he is
     liable for murder and, if convicted, will be so
     punished.   We cannot say, then, that each is a
     wholly independent theory of liability.
977 N.E.2d at 47.

                                        -8-
scope of accomplice (or joint venture) liability."4                      Id. at 45.

Thus,       Marshall,       addressing    a    question    of    state    legislative

interpretation,             modified      Rodriguez's           interpretation     of

Massachusetts' murder statutes.

               After interpreting the Massachusetts aiding and abetting

statute, the SJC turned to the double jeopardy implications of

Rodriguez.       The SJC acknowledged that the state cannot retry a

defendant       when    a    conviction       is    overturned    for    insufficient

evidence, but a state may do so

               [1] where other theories (supported by
               evidence at a first trial) would support a
               defendant's conviction in the second, see
               Commonwealth v. Fickett, [526 N.E.2d 1064,
               1068 n.4 (Mass. 1988)], or [2] where a
               conviction is reversed on appeal because of a
               variance between the indictment and the proof
               established at trial.    See Commonwealth v.
               Ohanian, [370 N.E.2d 695, 698 (Mass. 1977)].




        4
        In particular, the Marshall court noted its 1997 decision
in Commonwealth v. Ortiz, 679 N.E.2d 1007 (Mass. 1997), which found
that, "[a]lthough [section two] 'continue[d] to use the term
'before the fact,' the phrase now appears to be a vestige of
history, as [recent] statutory changes 'abrogate[d] the distinction
between principals and accessories before the fact.'" Marshall,
977 N.E.2d at 46 (third and fifth alterations in original) (quoting
Ortiz, 679 N.E.2d at 1010).

                                              -9-
Id. at 47-48.5   The Marshall court reasoned that this case falls

somewhere between these two "exceptions" to the double jeopardy

rule, and that while Rodriguez had not employed the "variance"

language precisely, it "essentially concluded . . . that such a

variance was fatal: the defendant was convicted of a crime for

which he had not been indicted."   Id. at 48.   Ultimately, the SJC

concluded, there was no double jeopardy problem with the state's

decision to prosecute Marshall for a second time for the crime

proved at the first trial.   Id.




     5
        Federal law recognizes these exceptions to double jeopardy
under the heading "procedural dismissals." Evans v. Michigan, 133
S. Ct. 1069, 1075 (2013) ("Procedural dismissals include rulings on
questions that 'are unrelated to factual guilt or innocence,' but
'which serve other purposes,' including 'a legal judgment that a
defendant, although criminally culpable, may not be punished'
because of some problem like an error with the indictment."
(emphasis added) (quoting United States v. Scott, 437 U.S. 82,
98 & n.11 (1978))); see, e.g., United States v. Lanzotti, 90 F.3d
1217 (7th Cir. 1996) (allowing new trial where earlier conviction
reversed on ground that facts did not support direct violation of
Illinois gambling statute and aiding and abetting theory was not
fairly communicated by instructions); Parker v. Norris, 64 F.3d
1178, 1180-82 (8th Cir. 1995) (allowing retrial under premeditated
murder provision after government charged and convicted defendant
under felony murder provision that did not apply to the defendant's
acts); United States v. Todd, 964 F.2d 925, 929-30 (9th Cir. 1992)
(allowing retrial on related offense of sexual contact where
government charged and convicted defendant under sexual intercourse
statute that did not apply to defendant's acts); United States v.
Miller, 952 F.2d 866, 870-74 (5th Cir. 1992) (allowing retrial on
permissible theory of mail fraud after conviction on legally
deficient "intangible rights" theory had been overturned); United
States v. Davis, 873 F.2d 900, 903-07 (6th Cir. 1989) (same).

                               -10-
D.           Section 2241 Petition and District Court Decision

             Marshall then filed a § 2241 petition in the district

court, arguing that because the initial reversal of his conviction

was based on insufficient evidence, his second indictment and

pending trial were barred by double jeopardy.        Marshall v. Bristol

Cnty. Superior Court, 951 F. Supp. 2d at 233.           He also asserted

that the SJC's changing interpretation of the aiding and abetting

statute was impermissible as it created an ex post facto law.            Id.

at 234.

             The district court noted that petitioner's ex post facto

claim was not raised before the state court and had not been

exhausted. It held, however, without any supporting citation, that

"exhaustion is not required when the ground for the Writ is double

jeopardy."    Id. at 234 n.1.    The district court did not address the

merits of Marshall's ex post facto claim.

             As to petitioner's double jeopardy claim, the federal

district court agreed with Marshall's characterization of the SJC's

decision in Rodriguez      as resting on an insufficiency of the

evidence finding.     The district court held that Marshall's second

indictment    was   prohibited   by   the   Double   Jeopardy   Clause    as

incorporated. Id. at 235-36. It cited Burks v. United States, 437

U.S. 1 (1978), in which the Court held that a defendant cannot be

tried a second time after a reviewing court has found that the




                                   -11-
evidence presented was insufficient to sustain a guilty verdict.

Id. The district court granted the petition, saying that the state

            cannot be allowed to pick and choose
            successive theories of murder and to proceed
            upon successive trials for each of its new
            theories. The Commonwealth must stand on its
            theory of murder alleged at the first trial or
            otherwise the principle of one trial for each
            crime, which is at the core of the Double
            Jeopardy Clause, would be nullified.

Id. at 236.

            The Commonwealth argues to us that the petition should be

denied in full for failure to satisfy the exhaustion requirement as

to the ex post facto argument, and that, even if Marshall meets the

exhaustion requirement, the second indictment does not violate the

Double Jeopardy Clause as incorporated.

                                  II.

            "[W]e, as a federal habeas court reviewing a petition

under section 2241, must defer to the SJC's findings of fact but

must undertake plenary review of that court's resolution of issues

of law."    Gonzalez v. Justices of Mun. Court of Bos., 382 F.3d 1,

7 (1st Cir. 2004) (citation omitted), judgment vacated on other

grounds, 544 U.S. 918 (2005), and reinstated, 420 F.3d 5 (1st Cir.

2005).6    We review a district court's disposition of a section 2241




     6
        The Commonwealth does not challenge this de novo standard
of review under section 2241, as opposed to the deference owed to
a state court under the Antiterrorism and Effective Death Penalty
Act, 28 U.S.C. § 2254(d)(1).

                                 -12-
petition de novo.      Espinoza v. Sabol, 558 F.3d 83, 91 (1st Cir.

2009).

             Petitioner claims two grounds for relief in his § 2241

petition.     First, petitioner claims that, in changing "accessory

before the fact" to a "theory" of murder from a separate crime, the

SJC's decision in Marshall gave rise to an unconstitutional "ex

post facto law."      Second, petitioner claims that his prosecution

for murder is barred by the Double Jeopardy Clause.

A.           "Ex Post Facto Law": Unexhausted But Frivolous

             Petitioner    claims   first   that   the    SJC's   decision   in

Marshall, 977 N.E.2d at 45 -- characterizing accessory before the

fact as a separate theory of murder as opposed to a separate

offense, abrogating the portion of Rodriguez interpreting the

Massachusetts aiding and abetting statute -- had the effect of

"creat[ing] an ex post facto law for Mr. Marshall in violation of

Article I of the U.S. Constitution."          Petitioner failed to exhaust

state remedies with respect to this claim.               We reject it on the

merits nonetheless.7

             Ordinarily, "[p]rinciples of comity and federalism push

in   favor   of   giving   state    courts,   without     premature   federal

interference,     a   meaningful    opportunity     to    consider,   and    if


      7
       Because we reach the merits of petitioner's "ex post facto
law" claim, we need not decide whether the "total exhaustion
requirement" that applies to habeas petitions filed pursuant to 18
U.S.C. § 2254, Rhines v. Weber, 544 U.S. 269, 274-78 (2005), also
applies to petitions filed pursuant to 18 U.S.C. § 2241.

                                     -13-
necessary to correct, claims of legal error in state criminal

prosecutions."    Pike v. Guarino, 492 F.3d 61, 71 (1st Cir. 2007).

However, "exhaustion is a prudential principle rather than a

jurisdictional limitation," id., and "where, as here, a habeas

petitioner's unexhausted claim is patently without merit, . . . the

interests of judicial economy" recommend "dispos[ing] of that claim

once and for all," Coningford v. Rhode Island, 640 F.3d 478, 483

(1st Cir. 2011); see also Granberry v. Greer, 481 U.S. 129, 135

(1987) (explaining that a federal habeas court may reach the merits

of   an   unexhausted   claim   "if   it     is   perfectly   clear   that   the

applicant does not raise even a colorable federal claim").

            For the same reason, this court need not decide whether

to abstain from deciding petitioner's ex post facto claim under

Younger v. Harris, 401 U.S. 37, 44–45 (1971), which cautions that

federal courts should generally refrain from enjoining pending

state court proceedings.8        Like exhaustion, "Younger is not a

jurisdictional bar based on Article III requirements, but instead

a prudential limitation on the court's exercise of jurisdiction

grounded in equitable considerations of comity."               Spargo v. N.Y.

State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003);

accord Benavidez v. Eu, 34 F.3d 825, 829 (9th Cir. 1994) ("Younger

abstention is not jurisdictional, but reflects a court's prudential


      8
        The issue of Younger abstention was not raised by the
Commonwealth in the district court. We do not address the issue of
whether the Commonwealth's waiver would be excused.

                                      -14-
decision not to exercise jurisdiction which it in fact possesses."

(emphasis in original)). The interest of comity is not advanced by

forcing state courts to consider frivolous claims.           In addition,

the Commonwealth has itself asked for dismissal on the grounds that

petitioner's   ex   post   facto   claim    is   without   merit   and    has

extensively briefed the issue.

          "As the text of the [Ex Post Facto] Clause makes clear,

it 'is a limitation upon the powers of the Legislature, and does

not of its own force apply to the Judicial Branch of government.'"

Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Marks v.

United States, 430 U.S. 188, 191 (1977)).            Marshall's "ex post

facto law" claim is mislabeled.        He asserts a due process claim.

The Supreme Court has recognized that "limitations on ex post facto

judicial decisionmaking are inherent in the notion of due process."

Rogers, 532 U.S. at 456.

          But even recast as a due process argument, petitioner's

claim fails.   Constraints on judicial retroactivity are rooted in

"core due process concepts of notice, foreseeability, and, in

particular, the right to fair warning as those concepts bear on the

constitutionality    of    attaching      criminal   penalties     to    what

previously had been innocent conduct." Id. at 459 (citing Bouie v.

City of Columbia, 378 U.S. 347, 351, 352, 354-355 (1964)).

Petitioner cannot seriously contend that he lacked fair notice that




                                   -15-
participation in a fatal beating constituted criminal conduct.

Petitioner's fair notice claim is utterly meritless.

B.         Double Jeopardy

           It is black letter law that "the Double Jeopardy Clause

precludes a second trial once the reviewing court has found the

evidence legally insufficient."     Burks, 437 U.S. at 18; see also

Benton v. Maryland, 395 U.S. 784, 794-95 (1969) (holding that the

"double    jeopardy"   protection   of   the   Fifth   Amendment    was

incorporated into the Fourteenth, and hence also carries to the

States).    By contrast, where reversal is based upon a variance

between the crime charged in the indictment and the crime proved at

trial, the Double Jeopardy Clause is no bar to retrial.             See

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.").

           Rodriguez, were it standing alone, could be read as

giving conflicting signals. On the one hand, the decision does use

the phrase "the evidence was insufficient."     931 N.E.2d at 43.   On

the other hand, the decision uses that phrase in the context of a

discussion emphasizing the mismatch between the crime charged in

the indictment and the crime proved at trial.9          In addition,


     9
        Rodriguez said:
     [T]he indictment charged conduct that took place
     "before the said felony was committed," an element
     that we have stated is required under G.L. c. 274,
     § 2, to establish guilt as an accessory before the

                                -16-
Rodriguez noted that Marshall could have been convicted pursuant to

a corrected indictment.           See id. ("To charge Marshall with this

conduct, the Commonwealth should have simply added Marshall's name

to   that   portion    of   the    indictment    alleging    murder,   without

reference to Marshall's acting as an accessory before the fact.").

             By itself, the SJC's decision in Rodriguez could be

thought     to   be   ambiguous.      Marshall    resolved    any   ambiguity,

explaining:

             Although the proof of liability at trial, and
             the jury instructions that accompanied it,
             would have sufficed if the defendant had been
             indicted simply for the murder itself, they
             were at variance with the wording of the
             indictment. Although we did not employ this
             term specifically, we essentially concluded in
             Rodriguez . . . that such a variance was
             fatal: the defendant was convicted of a crime
             for which he had not been indicted.

977 N.E.2d at 48. Marshall held that the reversal in Rodriguez was

based upon a defect in the charging instrument, language of

"insufficien[cy]" notwithstanding.

             And a federal habeas court is bound by that holding.

"[T]he meaning attached to an ambiguous prior reversal is a matter


     fact. In this case, the evidence was insufficient
     to satisfy this requirement, for there was no
     evidence at trial that Marshall, before the felony
     took place (as was required by the indictment, the
     statutory prescribed indictment form, and G.L. c.
     274, § 2), counselled, hired, or otherwise procured
     the felony to be committed. Rather, the evidence
     established his active participation in, and
     presence during, the commission of the felony.
931 N.E.2d at 43 (emphasis added).

                                      -17-
of state law."            Tibbs, 457 U.S. at 47 n.24 (citing Greene v.

Massey,      437   U.S.     19   (1978)).      For    that   reason,    the     SJC's

"construction of its prior opinion binds this Court."                         Id. at

46-47. We are similarly bound by the state court's construction of

its state statutes and other issues of state law.               E.g., Wisconsin

v. Mitchell, 508 U.S. 476, 483 (1993) ("There is no doubt that we

are bound by a state court's construction of a state statute.").

              The Supreme Court addressed a similar situation in Tibbs.

In    that   case,    the    Florida   Supreme       Court's   initial    decision

reversing the defendant's conviction left unclear whether reversal

was based on "insufficient evidence" or rather on "weight of the

evidence." 457 U.S. at 38-39. Following a retrial and conviction,

the Florida Supreme Court issued a second opinion clarifying that

its earlier reversal had been based on "weight of the evidence."

Id.    The defendant argued on appeal, among other things, that the

earlier reversal had, in fact, been based upon insufficiency, and,

as a result, that the Double Jeopardy Clause as incorporated barred

his retrial.       The Supreme Court affirmed the conviction following

retrial, reasoning that "[a]ny ambiguity in Tibbs I . . . was

resolved by the Florida Supreme Court in Tibbs II."                    Id. at 46.

The state court's "bind[ing]" construction of its earlier decision

established        that    the   defendant's    "successful     appeal     of    his

conviction rested upon a finding that the conviction was against

the weight of the evidence, not upon a holding that the evidence


                                       -18-
was legally insufficient to support the verdict."   Id. at 46-47.

"Under these circumstances," the Court concluded, "the Double

Jeopardy Clause does not bar retrial."     Id. at 47.     On like

reasoning, we conclude that the grant of the petition here was in

error.

                              III.

          The district court's grant of petitioner's request for

habeas relief is reversed.    Habeas relief is barred, and the

petition is dismissed with prejudice.




                              -19-
