IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30789
Summary Calendar
CARLO DESALVO,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-172-K
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March 17, 2003
Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Carlo Desalvo, Louisiana state prisoner # 102837, was
convicted following a bench trial of aggravated battery (count
one), armed robbery (count two), aggravated battery (count
three), second-degree kidnaping (count four), and armed robbery
(count five). Desalvo appeals from the district court’s denial
of his 28 U.S.C. § 2254 federal petition for a writ of habeas
corpus. The district court granted Desalvo a certificate of
*
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that this opinion should not be published and is not precedent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. 02-30789
-2-
appealability on his claims of the denial of a jury trial and of
violations of the Double Jeopardy Clause.
Desalvo contends that he did not knowingly and voluntarily
waive his right to a jury trial. The state court’s adjudication
of the issue of the voluntariness of Desalvo’s waiver of the
right to a jury trial was not contrary to and did not involve an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
Desalvo argues that he was subjected to double jeopardy
because he was charged with attempted second degree murder (count
one) and armed robbery (count two) of Todd Louque. Similarly, he
contends that he was subjected to double jeopardy because he was
charged with attempted second degree murder (count three) and
armed robbery (count five) of James Clair. The Double Jeopardy
Clause of the Fifth Amendment protects against a second
prosecution for the same offense after acquittal; a second
prosecution for the same offense after conviction; and multiple
punishments for the same offense. See Brown v. Ohio, 432 U.S.
161, 165 (1977); Blockburger v. United States, 284 U.S. 299
(1932). Desalvo was not subjected to a second prosecution.
Because he was not convicted of attempted second degree murder on
either counts one or three, but rather was convicted of
aggravated battery on both counts, he also has not shown that he
received multiple punishments for the same offense.
No. 02-30789
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Desalvo contends that he was subjected to double jeopardy
because he was charged, and convicted, of both second degree
kidnaping (count four) and armed robbery (count five). These
convictions do not violate the Double Jeopardy Clause test
because each offense contains an element of proof not shared by
the other. See LA. REV. STAT. 14:41.1, 14:64. The state court’s
adjudication of Desalvo’s double jeopardy claim does not involve
an unreasonable application of clearly established federal law as
determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
AFFIRMED.