Friston v. Mills

Case: 21-60514 Document: 00516306666 Page: 1 Date Filed: 05/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 4, 2022
No. 21-60514
Summary Calendar Lyle W. Cayce
Clerk
Keith Friston,
Petitioner—Appellant,
versus
Andrew Mills,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:18-CV-207
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Keith Friston, Mississippi prisoner # 84468, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition challenging his convictions of
causing a death while driving under the influence and leaving the scene of an
accident resulting in death. In his petition, Friston alleged his double
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-60514 Document: 00516306666 Page: 2 Date Filed: 05/04/2022
No. 21-60514
jeopardy rights were violated (1) when the state trial court granted a mistrial
due to the unavailability of a prosecution’s witness without first inquiring if
reasonable alternative witnesses existed and (2) when he was sentenced as a
habitual offender under Mississippi law. The district court rejected both
claims on the merits. It granted a certificate of appealability (COA) as to his
first claim but denied a COA as to his second claim. As such, Friston also
moves this court to expand the COA to include his second claim.
“In an appeal of the district court’s denial of habeas relief, this court
reviews the district court’s findings of fact for clear error and its conclusions
of law de novo, applying the same standard of review that the district court
applied to the state court decision.” Austin v. Cain, 660 F.3d 880, 884 (5th
Cir. 2011) (internal quotation marks omitted). Under the Antiterrorism and
Effective Death Penalty Act (AEDPA), a state court’s adjudication of an
issue on the merits is entitled to deference. Hill v. Johnson, 210 F.3d 481,
484-85 (5th Cir. 2000). A § 2254 petition shall not be granted unless the
state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” § 2254(d).
Given the relevant Supreme Court precedent regarding whether a
manifest necessity justifies a retrial following a mistrial, particularly Downum
v. United States, 372 U.S. 734 (1963), as well as the circumstances of this
particular case, we cannot say that the Mississippi court’s rejection of
Friston’s double jeopardy claim was either contrary to or an unreasonable
application of clearly established federal law.
Regarding Friston’s motion to expand the COA to include his second
claim, this court reviews such a request under the same criteria it uses to
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No. 21-60514
determine whether to issue a COA. United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998). Accordingly, this court will grant Friston’s motion to
expand the COA if he makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). That is, he must establish that reasonable jurists would find
the decision to deny relief debatable or wrong, see Slack v. McDaniel, 529 U.S.
473, 483-84 (2000), or that the issue he presents deserves encouragement to
proceed further, see Miller-El, 537 U.S. at 327. Friston has failed to make the
requisite showing.
Accordingly, we AFFIRM the judgment of the district court and
DENY the motion to expand the COA.
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