Cardec v. Day

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 98-30511
                          Summary Calendar



JAMES CARDEC,

                                            Petitioner-Appellant,

versus

ED C. DAY, Warden; RICHARD IEYOUB,
Attorney General, State of Louisiana,

                                            Respondents-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 97-CV-1572-N
                       - - - - - - - - - -

                           March 10, 1999

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

PER CURIAM:*

     James Cardec, a Louisiana prisoner (# 109107), appeals the

district court’s denial of his petition for writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254.     Cardec argues that

his rights under the Double Jeopardy Clause were violated when he

was convicted of manslaughter and an underlying felony,

aggravated burglary, when he had initially been charged with

first-degree murder.



     *
        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that this opinion should not be published and is not precedent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.
                           No. 98-30511
                                -2-

     Whether different statutes punish the same offense is

determined by the standard announced in Blockburger v. United

States, 284 U.S. 299 (1932).   Brown v. Ohio, 432 U.S. 161, 166

(1977).   The Double Jeopardy Clause prohibits prosecution for

both a felony-murder and the underlying felony.   Harris v.

Oklahoma, 433 U.S. 682, 682-83 (1977).

     Because Cardec pleaded guilty to manslaughter and aggravated

burglary, and because he does not challenge the voluntariness of

that plea, he may prevail only if the face of the indictments or

state-court record establishes that his convictions violate

double jeopardy.   Broce v. United States, 488 U.S. 563, 574-75

(1989).   The state trial court rejected Cardec’s double-jeopardy

challenge because “the evidence necessary to prove the additional

charge of aggravated burglary was not the same evidence needed to

convict [Cardec] of manslaughter.”   Neither the indictments nor

the record on appeal affirmatively show that Cardec was subjected

to a double-jeopardy violation.   Cardec cannot show that the

state-court decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States[.]”      See 28

U.S.C. § 2254(d)(1).   Accordingly, the district court’s judgment

is AFFIRMED.