The Honorable Charles R. Wolle, Chi ef Judge, United States District Court for 1 the Southern District of Iowa.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2893

___________ Loren Glen Huss, Jr., * * Appellant, * * v. * Appeal from the United States * District Court for the Herb Maschner, Warden, * Southern District of Iowa. * Appellee, * [UNPUBLISHED]

___________ Submitted: November 4, 1998 Filed: November 9, 1998

___________ Before FAGG, BEAM, and LOKEN, Circuit Judges.

___________ PER CURIAM. Loren Glenn Huss, Jr. , an Iowa inmate, appeals from the district court & s denial 1 of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
In June 1987, Huss was convicted o f and sentenced to life imprisonment for the murder of hi s former girlfriend. During the trial proceedings, Huss & s attorney and the prosecutor, confident that Huss would be found not guilty by reason of insanity,-2-

negotiatedan agreement to waive a jury trial and to submit the case on a stipulate d record. The trial judge found the stipulated evidence insufficient to support Huss & s insanity de fense, however, and scheduled the case for a jury trial which resulted i n Huss & s conviction.

On direct appeal to the Iowa Supreme Court, Huss argued that the trial judg e placed hi m in double jeopardy, in violation of the Fifth Amendment, by trying hi m twice for the same crime. The Iowa Supreme Court affirmed Huss & s conviction , concluding that jeopardy had attached when the case was submitted on a stipulate d record, but also concluding that Huss was retried to protect his interests and without violating the Fifth Amendment. See State v. Huss , 430 N.W.2d 621, 623-25 (Iow a 1988), cert. denied , 490 U.S. 1024 (1989). Huss later raised th e double jeopardy claim and other claims in a post-conviction motion, which was denied at the state trial court level, and he appealed to the Iowa Court of Appeals.

Wh ile his state post-conviction appeal was pending, Huss filed the instan t pe tition (two prior petitions had been dismissed for failure to exhaust state remedies) raising the double jeopardy claim. Concluding that Huss again had failed to exhaust state remedies, the district court dismissed the petition without prejudice. While this appeal was pending, the Iowa Court of Appeals denied Huss & s post-conviction appeal, concluding as relevant here that Huss was barred from relitigating the double jeopardy claim in post-conviction proceedings as the issue already had been resolved in hi s direct appeal.

We review the district court & s conclusions of law de nov o and its findings of fact for clear error. See Bounds v. Delo , 151 F.3d 1116, 1118 (8th Cir. 1998). As a prerequisite to habeas corpus relief, a pe titioner must exhaust available state remedies. See Vasquez v. Hillery , 474 U.S. 254, 257 (1986). A petitioner & s state remedies are exhausted when the state & s highest court has had an opportunity to rule on the factual and theoretical substance of the petitioner & s claims. See Schneider v. Delo , 85 F.3d-3-

335, 339 (8th Cir.), cert. denied , 117 S. Ct. 530 (1996). Because the instant petition raised only the double jeopardy claim, wh ich was considered and rejected by the Iowa Supreme Court in Huss & s direct crimi nal appeal, we conclude the claim was exhausted when Huss fi led the instant petition. See Wayne v. Missouri Bd. of Probation & Parole , 83 F.3d 994, 998 (8th Cir. 1996) (if petitioner has raised claim in one full set of proceedings, state remedies are exhausted).

We also conclude, however, that Huss is not entitled to relief based on hi s double jeopardy claim. Even though jeopardy attached when the state trial judge began to hear the evidence, see Bally v. Kemna , 65 F.3d 104, 107 (8th Cir. 1995), cert

. denied , 516 U.S. 1118 (1996), the trial judge did not finally resolve the merits of the charges against Huss and thus wa s not barred under the Double Jeopardy Clause from
su bjecting Huss to a jury trial, see Shaw v. Norris , 33 F.3d 958, 961 (8th Cir. 1994 ) (Fifth Amendment prohibits second prosecution of defendant for same offense afte r acquittal or conviction); United States v. Dixon , 913 F.2d 1305, 1310 (8th Cir. 1990) (retrial is not automatically barred under Double Jeopardy Clause when crimina l proceeding i s terminated without finally resolving merits of charges against accused).

Ac cordingly, we affirm the district court & s dismissal of the instant petition, see Cook sey v. Delo , 94 F.3d 1214, 1218 (8th Cir. 1996) (this court may affirm on an y basis supported by record), cert. denied , 118 S. Ct. 624 (1997), although we modif y the dismissal to be with prejudice.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.