*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-60517

CARL EUGENE MILLER, 

Petitioner-Appellee, 

versus

BRUCE CARVER and 

MIKE MOORE, 

Respondents-Appellants. 

Appeal from the United States District Court

for the Southern District of Mississippi

(96-CV-586)

December 8, 1997

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges. 

PER CURIAM:*

Respondents-Appellants Bruce Carver and Mike Moore appeal the

rulings of the district court denying their motion to stay the

court’s earlier grant of a writ of habeas corpus and maintaining

such writ, which remanded the case to the state circuit court for

another bail hearing, not on a finding that the circuit court’s
2

requirement of a $250,000 bail was excessive but that the courts of

Mississippi violated their own process in the method employed in

setting Miller’s bail. In reaching its decision, the district

court concluded that the provisions of AEDPA modifying 28 U.S.C.

§ 2254(d) did not apply to Miller’s Petition because the

Mississippi Supreme Court’s denial of his motion seeking review of

the amount of his bail did not constitute “an adjudication `on the

merits’” and that the trial court acted arbitrarily and “violated

the petitioner’s Eighth and Fourteenth Amendment rights to

reasonable bail” by “failing to make a record indicating that it

considered the [criteria for determining bail as identified by the

Mississippi Supreme Court] in its decision[s].” The district court

then granted Miller’s petition for habeas relief and remanded the

case for a new bail hearing. 

We have carefully reviewed the opinion and ruling of the

district court, the facts of this phase of Miller’s encounter with

the law, and the legal arguments of able counsel as set forth in

their appellate briefs and in their arguments before this court.

As a result we conclude first that the district court erred when it

determined that, as amended, 28 U.S.C. § 2254(d) did not apply

because of a failure of the state courts’ disposition of the matter

to constitute an adjudication on the merits, and second that

§ 2254(d) now precludes habeas relief under the instant

circumstances. 

A case is adjudicated on the merits within the meaning of
1 Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). 

2 28 U.S.C. § 2254(d)(1). 

3 Up to now, the Court has merely stated that the “only

arguable substantive limitation of the Bail Clause is that the

Government’s proposed conditions of release or detention not be

`excessive’ in light of the perceived evil.” United States v.

Salerno, 481 U.S. 739, 754 (1987) (emphasis added). 

3

§ 2254(d) as amended by AEDPA when it is disposed of on substantive

rather than procedural grounds, regardless of the quality of a

judicial review afforded a claim.1 We conclude that Miller’s

excessive bail claim was adjudicated on the merits by the

Mississippi Supreme Court and thus falls within the ambit of AEDPA,

regardless of the short shrift given to the matter by that court.

Under AEDPA, Miller was required to demonstrate that the

disposition of his excessive bail claim by the courts of

Mississippi were “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.”2 To date, the Court has

not “clearly established” what limits, if any, the Eighth

Amendment’s excessive bail clause imposes on the amount of bail

pending appeal that a state court may impose on a convicted felon.3

AEDPA teaches that in the absence of a clearly established

precedent from the Supreme Court informing the state and federal

courts how to determine when bail pending appeal is excessive,

Miller’s petition for habeas corpus should have been denied. It

follows that we must reverse the district court, vacate its stay
4

and its grant of Miller’s habeas petition as well, and render

judgment denying habeas relief to Miller. 

REVERSED; STAY and WRIT VACATED; and RENDERED.