JESUS DELGADO FLORIDA DEPARTMENT OF CORRECTIONS v. <<

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United States Court of Appeals, Eleventh Circuit.

JESUS DELGADO, lllllllllllllllllllll Petitioner—Appellant, versus FLORIDA DEPARTMENT OF CORRECTIONS, lllllllllllllllllllll Respondent—Appellee.

No. 10–13490 _ D.C. Docket No. 1:08–cv–21804–DLG

Decided: October 13, 2011

Before BARKETT, WILSON and MARTIN, Circuit Judges.   WILSON, Circuit Judge:  In 1994, Jesus Delgado was convicted of two counts of first-degree murder, one count of armed burglary, and one count of possession of a firearm by a convicted felon, but those convictions were set aside on appeal by the Florida Supreme Court.   In 2004, Delgado was retried and again convicted of two counts of first-degree murder.   He claims that this second trial violated the Fifth Amendment's prohibition on double jeopardy.   On direct appeal, the Florida Supreme Court denied him relief, as did the federal district court on his application for a writ of habeas corpus.   Having carefully reviewed the Florida Supreme Court's decision in light of United States Supreme Court precedent, we conclude that Delgado is not entitled to habeas relief because he was not “twice put in jeopardy” as that phrase is defined in federal constitutional law.   I. In order to properly frame the parties' arguments, we offer the following background.   A. On direct appeal from Delgado's first trial, the Florida Supreme Court summarized the underlying crime as follows:  Marlene McField was a neighbor of Tomas and Violetta Rodriguez, the victims in this case.   In the early evening hours of August 30, 1990, Ms. McField witnessed the Rodriguezes arrive home.   Later, at around 10 p.m., Ms. McField remembered hearing dogs in the home directly behind the Rodriguezes' home wailing in an unusual fashion.

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