Michael Whittlesey v.  PATRICK CONROY, Warden; ATTORNEY GENERAL OF THE STATE OF MARYLAND

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MICHAEL WHITTLESEY,
Petitioner-Appellant,
v.
No. 01-6158  PATRICK CONROY, Warden; ATTORNEY
GENERAL OF THE STATE OF
MARYLAND,
Respondents-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-00-2243-JFM)
Argued: April 3, 2002
Decided: August 23, 2002
Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and Walter K. STAPLETON, Senior Circuit Judge of the
United States Court of Appeals for the Third Circuit,
sitting by designation.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Chief Judge Wilkinson concurred. Judge Stapleton wrote a
concurring opinion.
COUNSEL
ARGUED: Wendy Michelle Marantz, Supervising Attorney, Appel-
late Litigation Program, GEORGETOWN UNIVERSITY LAW

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CENTER, Washington, D.C., for Appellant. Ann Norman Bosse,
Assistant Attorney General, Criminal Appeals Division, OFFICE OF
THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.
ON BRIEF: Steven H. Goldblatt, Director, Dan Rohwer-Nutter, Stu-
dent Counsel, Dominique Thomas, Student Counsel, Appellate Litiga-
tion Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. J. Joseph Curran, Jr., Attorney Gen-
eral of Maryland, Criminal Appeals Division, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.
OPINION
WIDENER, Circuit Judge:
Michael Whittlesey appeals from an order of the United States Dis-
trict Court for the District of Maryland, denying his petition for a writ
of habeas corpus and dismissing the case with prejudice. Whittlesey
argues that the decision of the Court of Appeals of Maryland violates
his constitutional double jeopardy rights because, after being prose-
cuted for robbery and assault with intent to rob, he was subsequently
prosecuted for first degree murder. The district court concluded that
the Maryland appellate court’s determination that the murder prosecu-
tion did not violate the Double Jeopardy Clause was neither contrary
to, nor an unreasonable application of clearly established federal law.
Whittlesey timely appealed the district court determination, but the
district court denied his motion for a certificate of appealability. We
granted a certificate of appealability, however, on the issue of whether
the state court’s decision is contrary to or an unreasonable application
of federal double jeopardy law. For the reasons that follow, we affirm
the district court.
I.
In 1984, Michael Whittlesey was tried and convicted by a jury for
robbery, assault with intent to rob, theft of an automobile belonging
to Griffin’s father, and theft of a cassette player and a number of cas-
sette tapes, all arising out of the 1982 disappearance of James Griffin.
The details of the crime and ensuing investigation are described at
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length in Whittlesey v. State, 606 A.2d 225 (Md. 1992) (Whittlesey I),
and Whittlesey v. State, 665 A.2d 223 (Md. 1995) (Whittlesey II), and
need not be repeated here. Whittlesey was sentenced to a ten-year
term for the robbery, a consecutive fifteen-year term for the theft of
the automobile and the remaining convictions were merged.
Whittlesey appealed his conviction and sentence to the Maryland
Special Court of Appeals on the basis of three alleged trial court
errors not at issue in this appeal. The Maryland intermediate appellate
court affirmed Whittlesey’s convictions and Whittlesey’s petitions for
writ of certiorari were denied by both the Court of Appeals of Mary-
land and the Supreme Court of the United States.
When the body of James Griffin, Whittlesey’s robbery victim, was
finally found in 1990 nearly eight years after his disappearance, Whit-
tlesey was indicted in Baltimore County Circuit Court for Griffin’s
murder. Whittlesey’s motion to dismiss on double jeopardy grounds
was denied by the Maryland circuit court, whereupon Whittlesey
noted an interlocutory appeal and the Court of Appeals of Maryland,
on its own motion, issued a writ of certiorari to consider whether the
Double Jeopardy Clause of the Fifth Amendment prohibited the pros-
ecution of Whittlesey for the murder of Griffin.
The Maryland Court of Appeals affirmed the circuit court’s denial
of Whittlesey’s motion to dismiss on double jeopardy grounds. See
Whittlesey v. State, 606 A.2d 225 (Md. 1992) (Whittlesey I). Whit-
tlesey was subsequently convicted by a jury of both first degree pre-
meditated murder and felony murder and sentenced to death. In an
appeal to the Maryland Court of Appeals, Whittlesey again argued his
double jeopardy claim, which was rejected for a second time. See
Whittlesey v. State, 665 A.2d 223, 244-48 (Md. 1995) (Whittlesey II).
Despite the rejection of Whittlesey’s double jeopardy claim, the court
ordered a new capital sentencing proceeding on other grounds. The
Supreme Court declined certiorari review. See Whittlesey v. Mary-
land, 516 U.S. 1148 (1996).
Whittlesey was resentenced to life imprisonment, consecutive to all
sentences previously imposed, and his subsequent appeal of this sen-
tence was unsuccessful. After Whittlesey was denied post conviction
relief in state court, he filed a petition for a writ of habeas corpus in
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the United States District Court for the District of Maryland, which
was denied and is the subject of this appeal.
In his § 2254 petition to the district court, Whittlesey argued that
his "guaranteed rights pursuant to the Fifth and Fourteenth Amend-
ments to the United States Constitution were violated when [he was]
put to trial for murder." Recognizing that its review was governed by
the amendments to the habeas corpus statutes contained in the Anti-
Terrorism and Effective Death Penalty Act (AEDPA), the district
court denied Whittlesey’s petition for habeas corpus and dismissed
the case with prejudice after concluding that "[t]he [Maryland] appel-
late court’s determination that the murder prosecution did not violate
the Double Jeopardy Clause was neither contrary to, nor an unreason-
able application of clearly established federal law as it existed at that
time." This court granted a certificate of appealability and we now
affirm the district court’s judgment.
II.
Although our review of the district court’s decision on a petition
for habeas corpus based on a state court record is de novo, see Spicer
v. Roxbury Correctional Institute, 194 F.3d 547, 555 (4th Cir. 1999),
like the district court, the scope of our review is prescribed by the
AEDPA at 28 U.S.C. § 2254(d)(1) and (2). The AEDPA of 1996 pro-
hibits federal courts from granting an application for a writ of habeas
corpus with respect to any claim adjudicated on the merits in state
court proceedings unless the adjudication of the claim resulted in a
decision contrary to clearly established federal law as determined by
the Supreme Court of the United States or the decision was an unrea-
sonable application of federal law as determined by that Court. 28
U.S.C. § 2254(d). The Court explained the constraint placed on fed-
eral courts by the AEDPA in Williams v. Taylor, 529 U.S. 362 (2000):
Under the "contrary to" clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion oppo-
site to that reached by this Court on a question of law or if
the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the "un-
reasonable application" clause, a federal habeas court may
grant the writ if the state court identifies the correct govern-
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ing legal principle from this Court’s decisions but unreason-
ably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
We begin with the Fifth Amendment, which provides in pertinent
part that "[n]o person shall . . . be subject for the same offense to be
put twice in jeopardy of life or limb." U.S. Const., Amend. V. This
constitutional guarantee applies to the States through the Due Process
Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S.
784, 787 (1969). At issue in this case is the protection the Fifth
Amendment guarantees against successive prosecutions for the same
offense. See North Carolina v. Pierce, 395 U.S. 711, 717 (1969).
In United States v. Dixon, 509 U.S. 688 (1993), the Supreme Court
reiterated that the "same-elements" test announced in Blockburger v.
United States, 284 U.S. 299 (1932), is the appropriate test for deter-
mining whether two offenses are the same for double jeopardy pur-
poses:
In both the multiple punishment and multiple prosecution
contexts, this Court has concluded that where the two
offenses for which the defendant is punished or tried cannot
survive the "same-elements" test, the double jeopardy bar
applies. The same-elements test, sometimes referred to as
the "Blockburger" test, inquires whether each offense con-
tains an element not contained in the other; if not, they are
the "same offence" and double jeopardy bars additional pun-
ishment and successive prosecution.
Dixon, 509 U.S. at 696 (citations omitted).
In analyzing whether Whittlesey’s prosecution for murder was
barred by the Fifth Amendment’s protection against successive prose-
cutions, the Maryland court correctly identified the Blockburger test
as controlling and applied it to the facts of this case.*
*We note that the Maryland court also determined that the narrow
reach of the traditional Blockburger test had been expanded in Grady v.
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Whittlesey was indicted for first degree murder, which in Maryland
is proven by a determination by the trier of fact that the homicide (1)
was wilful, deliberate, and premeditated, or (2) was committed in the
perpetration of a felony (felony murder). The jury returned a verdict
of guilty on both first degree murder and felony murder. The Mary-
land appellate court examined the proof necessary for a conviction
under Maryland’s first degree murder statute and concluded that:
Under the Blockburger test, subsequent prosecutions for
premeditated murder, murder in the second degree, and
manslaughter, all encompassed in the murder indictment,
are not barred by the prior convictions under the robbery
indictment. Neither premeditated murder, murder in the sec-
ond degree, nor manslaughter share identical elements with
robbery, assault with intent to rob, or theft, nor are any of
them a lesser included offense of premeditated murder, mur-
der in the second degree or manslaughter.
Whittlesey I, 606 A.2d at 236.
Although the Maryland court found that Blockburger did not bar
Whittlesey’s prosecution for first degree murder, in applying the
Blockburger test to felony murder, the court found otherwise:
The underlying felony is an essential ingredient of felony
murder. In the case sub judice, it is readily apparent that the
underlying felony is robbery. Robbery therefore is a lesser
included offense of the felony murder. Inasmuch as the
charge of robbery filed against Whittlesey had been previ-
Corbin, 495 U.S. 508 (1990). While declining to pinpoint the holding of
Corbin, the court assumed that the application of the broader test
announced in Corbin barred the prosecution of Whittlesey for murder.
Subsequent to the Maryland decision, Dixon expressly overruled Grady
v. Corbin and its more expansive "same-conduct" test. See Dixon, 509
U.S. at 704. Thus the Maryland appellate court’s assumption that the
Corbin test barred the prosecution of Whittlesey for murder under any
theory is irrelevant and we address the court’s application of the Block-
burger test and the associated Diaz exception.
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ously litigated, Blockburger bars a subsequent prosecution
of him for murder in the first degree based on felony mur-
der, unless the Diaz exception applies.
Whittlesey I, 606 A.2d at 236-37.
The result in this case is not dictated by the application of the
Blockburger test alone, however. As the Maryland court recognized,
the Supreme Court has acknowledged a significant double jeopardy
exception, first contemplated in Diaz v. United States, 223 U.S. 442
(1912). Diaz held that the Double Jeopardy Clause did not bar a pros-
ecution for homicide subsequent to a conviction for assault and bat-
tery where the victim died after the first conviction. The two crimes
were not the same in all elements because, death being required for
a homicide prosecution, was not present for assault and battery. Diaz,
223 U.S. at 448-449.
The Maryland court traced the history of the Supreme Court’s
treatment of what it characterized as the Diaz exception. Over time,
the exception has been expanded beyond the particular situation in
Diaz, where the crime was uncompleted because an element, the
death, had yet to occur, to include instances where a crime was undis-
covered or where "due diligence" failed to produce facts necessary to
support the prosecution. As the Supreme Court explained in Illinois
v. Vitale, 447 U.S. 410 (1980): "We recognized in Brown v. Ohio, 432
U.S. at 169, n.7 that ‘[a]n exception may exist where the State is
unable to proceed on the more serious charge at the outset because the
additional facts necessary to sustain that charge have not occurred or
have not been discovered despite the exercise of due diligence.’" Illi-
nois v. Vitale, 447 U.S. at 420 n.8.
Thus the Maryland court correctly found that the Diaz exception to
the Blockburger test is not limited to an uncompleted or an undiscov-
ered crime, rather, the Supreme Court has included within the excep-
tion the situation where "facts necessary to sustain that charge . . .
have not been discovered despite the exercise of due diligence."
Brown v. Ohio, 432 U.S. 161, 169, n.7 (1977). In the case at hand,
despite an extended search for James Griffin’s body, a critical fact
necessary to sustain a charge of murder had not been revealed, specif-
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ically, that James Griffin was dead and had died as a result of a homi-
cide.
It is possible to prove the corpus delicti of murder in Maryland
without producing a body, see Hurley v. State, 483 A.2d 1298 (Md.
1984), but as the Maryland court stated:
But here, absent a body and lacking, therefore, an expert
opinion as to the manner and cause of death, it would be dif-
ficult to establish, by way of circumstantial evidence, the
elements called for under the murder indictment, namely,
that Jamie was dead, that the manner of his death was felo-
nious homicide, and that Whittlesey had killed him.
Whittlesey I, 606 A.2d at 238.
As we noted in United States v. Ragins, 840 F.2d 1184 (4th Cir.
1988), the "undiscovered crime exception was not intended to permit
the government to reprosecute a defendant simply because it has dis-
covered more evidence strengthening its case." Ragins, 840 F.2d at
1193. But, such is not the case here where a required element of the
crime of murder, a death, was undiscovered at the time of the robbery
prosecution, despite a diligent search for James Griffin’s body.
In determining that the discovery of the body and the cause of
death were sufficient missing facts to invoke the Diaz exception and
allow Whittlesey’s prosecution for murder subsequent to his robbery
conviction, the Court of Appeals of Maryland applied what is called
a "reasonable person" test "so often relied upon in the law" to the
facts of the case. Whittlesey I, 606 A.2d at 236. Acknowledging that
the Supreme Court has not had occasion to articulate how the Diaz
exception should be tested in the context of undiscovered facts neces-
sary to sustain the subsequent prosecution, the Maryland court articu-
lated and applied its own test, stated as follows:
a subsequent indictment on a second offense, otherwise
barred by the Double Jeopardy Clause of the Fifth Amend-
ment, is not barred if, at the time of prosecution for the ear-
lier offense a reasonable prosecutor, having full knowledge
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of the facts which were known and in the exercise of due
diligence should have been known to the police and prose-
cutor at that time, would not be satisfied that he or she
would be able to establish the suspect’s guilt beyond a rea-
sonable doubt.
Whittlesey I, 606 A.2d at 236.
We cannot say that the Maryland court was unreasonable under 28
U.S.C. § 2254(d)(1) in its application of the Diaz exception. The
exception is recognized in Supreme Court precedent in Brown v.
Ohio, n.7, 437 U.S. at 161, and, as the Maryland court noted, there
has been no clear articulation of the appropriate test for determining
whether facts necessary to sustain the charge have not been discov-
ered despite due diligence. To evaluate whether there were missing
facts surrounding a prosecution which were necessary to sustain the
charge is of necessity a fact-based inquiry. And, we are of opinion
that a requirement to view those facts through the eyes of a reasonable
prosecutor using due diligence is not an unreasonable application of
Supreme Court precedent. We are of opinion the application of the
Maryland court was neither incorrect, nor erroneous, nor unreason-
able. See Williams v. Taylor, Part IIB, 529 U.S. at 409, et seq.
The judgment of the district court is accordingly
AFFIRMED.
STAPLETON, Senior Circuit Judge, concurring:
In my view, the constitutional principle applied by the Maryland
Court of Appeals in this matter imposes far too great a burden on the
interests protected by the Double Jeopardy Clause and would not be
endorsed by the Supreme Court of the United States if presented to
it. I nevertheless join the judgment of the Court.
A state’s highest court is entitled to interpret the United States
Constitution so long as it does so in a manner consistent with the
holdings of the Supreme Court. For that reason, the AEDPA allows
an inferior federal court to overturn a state judgment of conviction
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only if it is "contrary to" or "involve[s] an unreasonable application
of clearly established Federal law, as determined by the Supreme
Court of the United States," 28 U.S.C. § 2254(d)(1), and "clearly
established" in this context refers to "holdings, as opposed to the
dicta, of [Supreme Court] decisions as of the time of the relevant
state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
This is a situation in which the Supreme Court has not addressed
the issue presented to the Maryland Court of Appeals. Nor has it
endorsed a principle that can fairly be said to provide a rational basis
for resolving that issue. In such circumstances, I believe the Maryland
Court of Appeals was entitled to fashion its own constitutional rule
relying, if it chose, on the footnote dicta in Justice Brennan’s concur-
rence in Ashe v. Swenson 397 U.S. 436, 453 n. 7 (1970) (suggesting
an exception to double jeopardy preclusion "where a crime is not
completed or not discovered, despite diligence on the part of the
police") and on the ensuing footnotes in Vitale and Brown noting that
such an exception "may exist." Vitale, 447 U.S. at 420 n. 8; Brown,
432 U.S. at 167 n. 7.
Because I find no relevant "clearly established" Supreme Court
case law, I agree with my colleagues that Whittlesey’s judgment of
conviction is not "contrary to," and does not "involve an unreasonable
application of," such law.
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