* The Honorable Glen M. Williams, United States District Judge for the Western District of Virginia, sitting by designation. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0584n.06 Filed: July 11, 2005 No. 04-1448 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IVORY L. HERRON, Petitioner-Appellant,

v. DENNIS STRAUB, Warden, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: KEITH, DAUGHTREY, Circuit Judges, and WILLIAMS, * District Judge. DAMON J. KEITH, Circuit Judge . Petitioner-Appellant Ivory L. Herron appeals the district court’s denial of his petition for writ of habeas corpus in which he challenged his successive prosecution for homicide as a violation of the D ouble Jeopardy Clause of the Fifth Amendment to the Constitution. Because we do not find that the state court’s decision is an unreasonable application of or contrary to cl early established federal law, we AFFIRM the decision of the district

court. I. BACKGROUND In this case, the factual circumstances are not indispute. The relevant facts are as follows: On October 17, 1995, after drinking alcohol and ingesting a controlled substance, phencyclidine (PCP), defendant drove a U-Haultruck at an immoderate rate of speed and in an erratic manner on the streets of Grosse Pointe Woods. He struck one car, causing it to spin around, then drove on, stri king another vehicle head-on, killing theCase No. 04-5725 Herron v. Straub Page 2 of 10

1 Herron was convicted of Count III, but it is not at issue before this court. driver, Christina Comito. These events o ccurred on a clear fall day at approximately 3:30 P.M., just as a nearby middle school was dismissing students for the day and traffic on the roads was heavy. Blood tests pe rformed later on defendant revealed the presence of PCP, but no alcohol. People v. Herron , 628 N.W.2d 528, 531(Mich. 2001). As a result of this incident, the State of Michigan charged Petitioner Ivory L. Herron (“Herron”) with a three-count indictment. Count I charged him with second-degree murder in violation of M.C.L. § 750.317. Count II charged him with operating a motor vehicle while under the influence of a combination of alcohol and a controlled substance thereby causing death (“OUI causing death”) in violation of M.C.L. § 257.625( 4). Count III charged him with driving on a suspended or revoked license. 1 Herron was tried by a jury. On C ount I, the court instructed the jury to consider the lesser-included offenses of i nvoluntary manslaughter involving a motor vehicle in violation of M.C.L. § 750.321, and of negligen t homicide in violation of M.C.L. § 750.324. Herron , 628 N.W.2d at 531. On Count II, the court instructed the jury to consider the lesser-included offense of negligent homicide. Id. at 531-32. The jury did not reach a verdict on Count I, and the court declared a mistrial. On Count II, however, the jury convicted Herron of negligent homicide, a lesser-included offense of both second-degree murder and OUI causing death. Herron was sentenced on his conviction for negligent homicide. Subsequent to Herron’s first trial, the State retried Herron on the second-degree murder charge (Count I). Id. In the second trial, the court instructedthe jury to consider the lesser-included offenses of involuntary manslaught er involving a motor vehicle and negligent homicide. The juryCase No. 04-5725 Herron v. Straub Page 3 of 10 convicted Herron of involuntary manslaughter. Id. Herron was then sentenced on his conviction for involuntary manslaughter. Herron appealed his convictions and sentences to the Michigan Court of Appeals. That court found that Herron’s Fifth Amendment right agai nst double jeopardy had been violated, and it therefore vacated his conviction for involuntary manslaughter but affirmed his conviction for negligent homicide. Id. Specifically, that court opined that Herron’s intoxicated driving resulted in the death of one individual, and th erefore he could only be convicted of one offense involving that death (i.e., second-degree murder, involuntary manslaughter, or OUI causing death). Id. Moreover, the state court of appeals “concluded that defe ndant’s conviction of both negligent homicide and involuntary manslaughter constituted multiple punishments for the same offense, given the statutorily created link between these two crimes, with negligent homicide being a necessarily included lesser offense of involuntary manslaughter.” Id. That court then found that “because the charges were improperly presented to the jury in th e first trial, defendant’s conviction of involuntary manslaughter in the second trial was ‘tainted and cannot stand.’” Id. at 532. As such, the court of appeals vacated Herron’s conviction and sentence for involuntary manslaughter and affirmed his conviction and sentence for negligent homicide. Id. That decision, however, was reversed by the Michigan Supreme Court. That court concluded “that there was no violation of defendant’s right to be free from multiple prosecutions when he was retried on the charge of second-degr ee murder in the second trial.” Id. at 533. While the Michigan Supreme Court determinedthat Herron’s multiple prosecutions did not violate the Fifth Amendment, it nevertheless concluded that Herron “received multiple punishments for the killing of the victim,Case No. 04-5725 Herron v. Straub Page 4 of 10

2The court specifically indicated: “[I]n cases in which no successive prosecutions problem arises, but in which a defendant has been punish ed doubly ‘for offenses arising out of a single transaction but that could not have been exacted in a single proceeding,’ it is an appropriate remedy in a multiple punishment double jeopardy violation to affirm the conviction of the higher charge and to vacate the lower conviction.” People v. Herron , 628 N.W.2d 528, 538 (Mich. 2001) (citing People v. Harding , 443 Mich. 693, 716 (1993)). Ms. Comito, in violation of hi s double jeopardy right to be free from multiple punishments, when he was convicted of, and sentenced for, negligent homicide and involuntary manslaughter.” Id. at 535. The Michigan Supreme Court agreed with the court of appeals and found that Herron’s punishments violated double jeopardy, but it determin ed that the appropriate remedy was to vacate the conviction for the lesser offense and affirm the conviction for the higher offense. 2Thus, the Michigan Supreme Court held that “defendant’s conviction for involuntary manslaughter should stand, and his conviction of negligent homicide should be vacated.” Id. at 538. Subsequent to the Michigan Supreme Court’s decision, Herron filed a timely petition for writ of habeas corpus with the United St ates District Court for the Eastern District of Michigan. In his petition, Herron asserted that his Fifth Amendment ri ght to be free from multiple prosecutions for the same offense was violated when the State retried him for second-degree murder, after he had been convicted of the lesser-included offense of ne gligent homicide. The district court denied his petition, finding that the jury in his first trial wa s “hung” as to Count I (second-degree murder) and did not implicitly acquit him of involuntary manslaughter; therefore, the State was permitted to retry him on that offense. Herron now appeals the district court’s decision to this court. II. ANALYSIS A. Standard of ReviewCase No. 04-5725 Herron v. Straub Page 5 of 10 When reviewing a petition for a writ of habeas corpus filed after the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), th is Court may grant relief for any claim adjudicated on the merits in state court if the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceedings. 28 U.S.C. § 2254(d). This court may only find that a decision is “contrary to” Supreme Court law if a state court decides a case differently thanthe Supreme Court wher e there are materially indistinguishable facts. Williams v. Taylor , 529 U.S. 405-06 (2000). This court may find that a state court unreasonably applied the law if it correctly identified a legal rule, but unreasonably applies that rule to the facts. Id. at 409. The “unreasonable application” analysis requires that the decision be objectively unreasonable, not simply erroneous or incorrect. Id. at 411. This court will review the district court’s decision to grant a petiti on for habeas corpus de novo, but it will review factual findings made by the district court for clear error. Barker v. Yukins , 199 F.3d 867, 870 (6th Cir. 1999). B. Double Jeopardy The Double Jeopardy Clause of the Fifth Ame ndment, which is applicable to the states through the Fourteenth Amendment, states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U. S. Const. amend. V. “The underlying idea, one that is deeply ingrained in at least the Anglo-American sy stem of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individualCase No. 04-5725 Herron v. Straub Page 6 of 10 for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and in security, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States , 355 U.S. 184, 187-88 (1957). In general, the clause protects an accused against multiple punishments for the same offense, and against multiple prosecutions for the same offense after he has been either acquitted or convicted. Jones v. Thomas , 491 U.S. 376, 381 (1989). More specifically, the Supreme Court has held that an implicit acquittal can be determined by jury silence; when a jury is instructed to find a defendant guilty of either first or second-degree murder, a defendant will be implicitly acquitted of first degree murder upon a findi ng of guilt for second-degree murder. Green v. United
States , 355 U.S. 184, 190 (1957); see also Terry v. Potter , 111 F.3d 454, 458 (6th Cir. 1997) (holding that defendant was implicitly acquittedfrom count 1 where jury was provided with disjunctive instructions and found defe ndant guilty of count 2 but was sile nt as to count 1). If a jury does not reach a verdict, however, the Supreme Court has determined that “is not an event which terminates jeopardy.” Richardson v. United States , 468 U.S. 317, 325 (1984). Thus, “a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause.” Id. at 324. Moreover, “successive prosecutions are prohib ited by the Fifth Amendment ‘only if the two offenses for which the defendant is prosecute d are the “same” for double jeopardy purposes.’” Harding v. Bock , 2004 WL 1770575,**5 (6th Cir. Aug. 5, 2004) (quoting Heath v. Alabama, 474 U.S. 82, 87 (1985)). The Supreme Court has pr ovided guidance on what constitutes the “same offense.” See Blockburger v. United States , 284 U.S. 299 (1932). “Under Blockburger , ‘where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to beCase No. 04-5725 Herron v. Straub Page 7 of 10

3 Application of the Blockburger test, however, has some limitation. “Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger , a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter , 459 U.S. 359, 368-69 (1983). applied to determine whether there are two offens es or only one, is whether each provision requires proof of a fact which the other does not.’” Kansas v. Hendricks , 521 U.S. 346, 370 (1997) (quoting Blockburger , 248 U.S. at 304). 3 Consistent with the Blockburger test, the Supreme Court has also held that “a conviction on a lesser-included offense bars subsequent trial on the greater offense.” Illinois v. Vitale , 447 U.S. 410, 421 (1980); see also Brown v. Ohio , 432 U.S. 161, 168 (1977) (“The greater offense is therefore by definition the ‘s ame’ for purposes of double jeopardy as any lesser offense included in it.”). In his petition for habeas, Herron argues that th e jury instructions coupled with the jury’s finding of guilt of negligent homicide cons tituted an implicit acquittal from Count I

. Specifically, Herron contends that the conviction in his first trial for the lesser-included offense of negligent homicide on Count II constitutes an implicit ac quittal on the greater offense of involuntary manslaughter because the mens rea required for OUI causing death is gross negligence, but the mens

rea for negligent homicide is only simple negligence. According to Herron, it follows that because the jury implicitly acquitted him of OUI causing d eath (by finding him guilty of the lesser-included offense of negligent homicide), th e jury’s verdict resulted in the absence of gross negligence. Thus, Herron would have this court find that the state was collaterally estopped from convicting him for involuntary manslaughter, a crime that includes a mens rea of gross negligence. See Ashe v.
Swenson , 397 U.S. 436, 443 (1970) (applying collateral est oppel to criminal case and explaining thatCase No. 04-5725 Herron v. Straub Page 8 of 10

4These elements are recited by the Michigan Supreme Court in People v. Lardie , 551 N.W.2d 656, 669 (Mich. 1996). While it is unclear whether the jury instructions in this case were identical to the elements set forth in Lardie , Herron has neither submitted the jury instructions in the record nor does he contest this recitation by the district court. “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit”). The district court denied Herron’s petition for writ of habeas corpus based on the grounds that his double jeopardy rights were not violatedwhen the state retried him on Count I (seconddegree murder) because the first jury was deadlocked as to that count. Moreover, the district court determined that Herron’s conviction in his first trial for negligent homicide did not constitute an “implicit acquittal” of the charge for second-degree murder or involuntary manslaughter. In reaching that conclusion, the district court found th at the jury that convicted Herron of negligent homicide “was not required to determine whether petitioner was grossly negligent to decide whether or not he was guilty of OUI causi ng death.” Joint Appendix (“J.A.”) at 136. The district court explained that, in the charge of OUI causing death, “[t]he jury was required to determine whether (1) the defendant was operating his motor vehicle while he was intoxicated, (2) that he voluntarily drove knowing that he might be in toxicated, and (3) that the defendant’s intoxicated driving was a substantial cause of the victim’s death.” Id. at 135. 4Consequently, the district court concluded that a jury’s finding of simple negligence does not indicate that the jury found that he was not grossly negligent. Our review of cases on habeas is limited, and we may only grant a petition if a state court has unreasonably applied or acted contrary to clearly established law. 28 U.S.C. § 2254(d). As theCase No. 04-5725 Herron v. Straub Page 9 of 10 United States Supreme Court has instructed: “If this Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar.” Taylor , 529 U.S. at 381. In this case, we are faced with a situation where the Supreme Court has clearly established a rule that a defendant may not be retried for a great er offense after he has been convicted on a lesser-included offense. Vitale , 447 U.S. at 421. The Supreme Court has also clearly established that a defendant may be retried following a hung jury. Richardson , 468 U.S. at 324. Here, the first jury convicted Herron of neg ligent homicide only with regard to Count II but deadlocked as to Count I, even though negligen t homicide is a lesser-included offense of both second-degree murder (Count I) and OUI while drivi ng (Count II). Because the jury deadlocked on Count I, Richardson appears to permit the government to retry Herron on that count. Herron’s retrial, however, places him in double jeopardy under the rule in Vitale , which bars retrial on a greater offense after conviction on a lesser-include d offense. Thus, the unique circumstances here suggest that the Michigan S upreme Court’s application of Richardson creates an apparent conflict with the rule in Vitale . We are unaware of any case in whic h the Supreme Court has established that its double jeopardy jurisprudence against subsequent prosecution on a greater offense takes precedence over its law permitting retrial after a hung jury. As such, we cannot conclude that the Michigan Supreme Court unreasonably applied or acted contrary to clearly established law regarding principles of double jeopardy. III. CONCLUSIONCase No. 04-5725 Herron v. Straub Page 10 of 10 As the Supreme Court has instructed, we are unable to establish a new rule where that Court “has not broken sufficient legal ground to estab lish an asked-for constitutional principle.” Taylor , 529 U.S. at 381. As such, we find that the distri ct court did not err in denying Herron’s petition for writ of habeas corpus, and we therefore AFFIRM its decision.