                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                           AUGUST 19, 2005
                             No. 04-14890                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D.C. Docket No. 02-01746-CV-CO-NE

RICKEY LYNN CLOUD,

                                                     Petitioner-Appellant,

     versus

JAMES DELOACH, Warden,
ATTORNEY GENERAL OF ALABAMA,

                                                     Respondent-Appellee.

                      __________________________

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

                             (August 19, 2005)


Before ANDERSON, CARNES, and WILSON, Circuit Judges.

PER CURIAM:
          Rickey Lynn Cloud was convicted in Alabama state court for the aggravated

stalking of his ex-wife. During the jury trial, a great deal of evidence came in,

mostly without objection, as to acts and threats by Cloud for which he had already

been convicted of attempted stalking. Cloud, represented by counsel, appealed his

conviction to the Alabama Court of Criminal Appeals. Cloud argued, among other

things, that the admission of certain cassette tapes and testimony concerning acts

and threats for which he had already been convicted violated his double jeopardy

rights.

          The state appellate court held that Cloud’s claim of double jeopardy

concerning the cassette tapes was preserved on appeal, but that Cloud had not

preserved his double jeopardy claim as to the testimony because he had not

objected at trial. The court went on to hold that, even if Cloud had preserved his

double jeopardy claim as to both the cassette tapes and the testimony, the evidence

was properly admitted. Cloud had been prosecuted for two threatening phone

calls that he had made after his conviction for attempted stalking. He had not been

prosecuted a second time for acts—recorded on the cassette tapes and described in

the testimony—that occurred before the attempted stalking conviction. According

to the court, “Cloud’s prior harassment history was admissible to prove a credible

threat and intent, which are elements of stalking.”

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      Cloud’s application for rehearing before the state appellate court was

overruled, and his petition for writ of certiorari before the Alabama Supreme Court

was denied. Cloud’s conviction became final, and he proceeded to represent

himself in state collateral proceedings. Having failed to gain relief there, Cloud

filed a habeas petition pursuant to 28 U.S.C. § 2254. In his petition, Cloud

alleged, among other things, that his double jeopardy rights had been violated,

though he did not specify how. The district court concluded that Cloud was

procedurally barred from raising this claim. We granted a certificate of

appealability to determine “[w]hether the district court erred in dismissing as

procedurally barred [Cloud’s] claim that his conviction violated his double

jeopardy rights.”

      We review de novo the district court’s denial of habeas relief. Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).

      Under the doctrine of procedural default, “[i]n all cases in which a state

prisoner has defaulted his federal claims in state court pursuant to an independent

and adequate state procedural rule, federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage of justice.” Coleman

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v. Thompson, 501 U.S. 722, 749, 111 S. Ct. 2546, 2565 (1991); Marek v.

Singletary, 62 F.3d 1295, 1301–02 (11th Cir. 1995).

      One way in which procedural default can arise is when the state court

correctly applies a procedural default principle of state law to conclude that the

petitioner’s federal claims are barred. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th

Cir. 1999). In such a case, a federal court must determine whether the last state

court rendering judgment clearly and expressly stated that its judgment rested on a

state procedural bar. Id. at 1303.

      “In Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990), we established a

three-part test to enable us to determine when a state court’s procedural ruling

constitutes an independent and adequate state rule of decision.” Judd v. Haley,

250 F.3d 1308, 1313 (11th Cir. 2001). “First, the last state court rendering a

judgment in the case must clearly and expressly state that it is relying on state

procedural rules to resolve the federal claim without reaching the merits of that

claim.” Id.

      Second, the state court’s decision must rest entirely on state law grounds; it

may not be intertwined with an interpretation of federal law. Id. We have held,

however, that “[w]hen a state court addresses both the independent state

procedural ground and the merits of the federal constitutional claim, the federal

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court should apply the state procedural bar and decline to reach the merits of the

claim.” Marek, 62 F.3d at 1301 (citing Alderman v. Zant, 22 F.3d 1541, 1549

(11th Cir. 1994)); see also Alderman, 22 F.3d at 1549 (“However, as here, where a

state court has ruled in the alternative, addressing both the independent state

procedural ground and the merits of the federal claim, the federal court should

apply the state procedural bar and decline to reach the merits of the claim.”).

      Third, the state procedural rule must be adequate. Judd, 250 F.3d at 1313.

The adequacy requirement has been interpreted to mean that the state procedural

rule must be firmly established and regularly followed, that is, not applied “in an

arbitrary or unprecedented fashion.” Id.

      The district court correctly found that Cloud was procedurally barred from

litigating his testimony-based double jeopardy claim in federal court. The

Alabama Court of Criminal Appeals clearly applied an independent and adequate

state rule requiring contemporaneous objection in finding that this claim was not

preserved for review. See Smelcher v. Attorney Gen. of Alabama, 947 F.2d 1472,

1477 n.7 (11th Cir. 1991) (“The rule that ‘[r]eview on appeal is limited to review

of any questions properly and timely raised at trial,’ is often repeated by the

Alabama courts.” (internal citation and marks omitted)). The fact that the court

alternatively concluded the testimony was admissible even if Cloud had objected

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does not change the result here. See Marek, 62 F.3d at 1301; Alderman, 22 F.3d at

1549. Cloud has not attempted to demonstrate cause and prejudice to excuse the

default, nor has he demonstrated that failure to consider his claim would result in a

fundamental miscarriage of justice.

      The district court, however, erred in not addressing Cloud’s cassette tapes-

based double jeopardy claim. The Alabama Court of Criminal Appeals found that

Cloud had preserved that argument for direct appeal and resolved the issue against

him on the merits. Given Cloud’s pro se status and the breadth of his § 2254

petition, we conclude that Cloud was seeking habeas review of this claim as well.

The State of Alabama acknowledges that, if we find that Cloud raised his cassette

tapes-based double jeopardy claim in the district court, then we should vacate and

remand as to that claim so that the district court can consider the merits of it. We

agree, and that is what we will do.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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