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.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 01-CV-172-K -------------------- 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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(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,

(1977); Blockburger v. United States,

(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 -3-

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

(d)(1).

AFFIRMED.