Carlo Angelo Green v. James Hayes

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT OCT 26, 2007 No. 06-16238 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 06-00817-CV-IPJ-TMP

CARL ANGELO GREEN,

Petitioner-Appellant,

versus

JAMES HAYES, ATTORNEY GENERAL OF THE STATE OF ALABAMA, THE

Respondents-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Alabama _________________________

(October 26, 2007)

Before TJOFLAT, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

On April 12, 2006, in the Circuit Court of Etowah County, Alabama, a jury convicted petitioner of aggravated stalking 1 and the court sentenced him to prison

for a term of ten years. He timely appealed his conviction to the Alabama Court of

Criminal Appeals, and while his appeal was pending, he petitioned the United

States District Court for the Northern District of Alabama for a writ of habeas

corpus. His petition stated that, prior to standing trial for aggravated stalking, he

had been convicted in “misdemeanor cases” in the “Gadsden City Court” of

“domestic violence” and that those misdemeanor cases involved the “same

evidence” and “same witnesses” the State used to obtain his conviction for

aggravated stalking. Because the State had already used such evidence to obtain

the misdemeanor convictions, he contended, the State was barred by the Double

Jeopardy Clause (as applied to the States under the Fourteenth Amendment) from

prosecuting him on the aggravated stalking charge.

The district court correctly noted that petitioner’s habeas petition was

premature and therefore dismissed it without prejudice. At the same time, the

court granted petitioner a certificate of appealability (COA) on the issue of whether

petitioner’s double jeopardy claim was exhausted.

We affirm the district court’s judgment dismissing the petition without

prejudice. At the time the district court entered its order, petitioner’s appeal was

1 See Ala. Code § 13A-6-91 (1975).

2 still pending; thus, the district court could not have known the disposition the

Alabama Court of Criminal Appeals may have made of petitioner’s double

jeopardy claim. Accordingly, the COA should not have been entered.

The district court’s dismissal of the instant petition without prejudice is

AFFIRMED.