     Case: 11-30910       Document: 00512152271         Page: 1     Date Filed: 02/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 22, 2013
                                     No. 11-30910
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN STANFORD LINDSEY,

                                                  Petitioner - Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-4502


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       For this challenge to the denial of relief under 28 U.S.C. § 2254, John
Stanford Lindsey, Louisiana prisoner # 110560, is proceeding pro se and in
forma pauperis. His underlying state-court conviction is for attempted creation
or operation of a clandestine laboratory for the unlawful manufacture of
methamphetamine,          attempted       possession     with     intent    to   distribute
methamphetamine, conspiracy to produce and manufacture methamphetamine,
and possession of 12 grams or more of pseudoephedrine. State v. Lindsey, No.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30910

2006 KA 1102, 2007 WL 437677, at *1 (La. Ct. App. 9 Feb. 2007) (unpublished).
Lindsey was adjudicated a fourth-felony offender and, accordingly, was
sentenced to life imprisonment at hard labor without the benefit of parole,
probation, or suspension of sentence. Id.; LA. REV. STAT. § 15:529.1(A)(1)(c)(ii)
(2004) (current version at LA. REV. STAT. § 15:529.1(A)(4)(b)).
      He was unsuccessful in state court on direct appeal and in subsequent
post-conviction proceedings. The issue presented here was raised in the latter.
      His application for federal habeas relief contended, inter alia, counsel was
ineffective for failing to move to quash the multiple-offender bill of information.
The district court denied this claim on the merits, as well as denying a certificate
of appealability (COA) for the claim.
      This ineffective-assistance-of-counsel (IAC) claim is the only one of the six
issues presented in the COA motion here for which our court granted a COA:
whether counsel was ineffective for failing to move to quash the multiple-
offender bill of information. Accordingly, at issue here is only that claim for IAC.
      A § 2254 application may not be granted unless the challenged state-court
decision: “was contrary to, or involved an unreasonable application of, clearly
established [f]ederal law, as determined by the Supreme Court of the United
States”; or “was based on an unreasonable determination of the facts in [the]
light of the evidence presented”. 28 U.S.C. § 2254(d). Lindsey fails to satisfy
this standard.
      For an IAC claim under § 2254, and consistent with the mandate of § 2254,
federal courts do not engage in an independent analysis of the claim; instead,
they review the decision by the state court. E.g., Harrington v. Richter, 131 S.Ct.
770, 788 (2011) (review is “doubly” deferential when federal court reviews IAC
claims under § 2254). To establish IAC in state court, Lindsey had to show:
counsel performed deficiently; and defendant was prejudiced by that
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show
deficient performance to the state court, Lindsey had to show “counsel’s

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representation fell below an objective standard of reasonableness”. Id. at 687-88.
For showing prejudice to the state court, Lindsey had to show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”. Id. at 694.
      Adopting     the     magistrate   judge’s    comprehensive      report   and
recommendation, the district court assumed counsel’s failure to move to quash
the multiple-offender bill of information constituted deficient performance.
Nevertheless, the court ruled that performance did not prejudice Lindsey
because the bill of information’s being quashed would merely have delayed the
same result, as the state could have then issued a new, correct multiple-offender
bill of information. Although the bill of information contained some inaccurate
accounts of prior convictions, it was “clear that [Lindsey] had at least three prior
convictions which could properly have been used to adjudicate him as a fourth
offender”: those for possession of methamphetamine, possession of a firearm by
a convicted felon, and simple burglary. Because at least two of these three,
along with the current conviction for Lindsey’s methamphetamine operation,
were punishable by 12 years’ imprisonment or more, the applicable habitual-
offender statute provided for life imprisonment without benefit of parole,
probation, or suspension of sentence. LA. REV. STAT. 15:529.1(A)(1)(c)(ii) (2004).
      Lindsey contends no combination of his prior convictions could have
sustained his adjudication as a fourth-felony offender. First, he maintains the
firearm conviction was not punishable by 12 years’ imprisonment or more when
he committed the offense in 1989. But, the relevant time is not when he
committed the predicate felony; rather, it is when he committed the current
(fourth) felony.   “A defendant must be sentenced according to sentencing
provisions in effect at the time of the commission of the offense.” State v.
Sugasti, 820 So. 2d 518, 520 (La. 2002); see also State v. Grimes, 16 So. 3d 418,
425 (La. Ct. App. 2009) (“the applicable law is that in effect at the time of the
commission of the current offense and not the predicate crime”). When Lindsey

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committed the current offense, possession of a firearm by a convicted felon was
punishable by 10 to 15 years’ imprisonment. LA. REV. STAT. 14:95.1(B) (2003).
Therefore, the firearm conviction could have served as a predicate felony for
habitual-offender purposes. See id.; LA. REV. STAT. § 15:529.1(A)(1)(c)(ii) (2004).
      Lindsey next contends the firearm and simple-burglary convictions could
not have been used in the same multiple-offender bill of information.            A
conviction for felon in possession of a firearm may be used to enhance a
subsequent conviction, but only if the underlying felony used as an element of
the firearm conviction is not also used in the same multiple-offender bill of
information. State v. Baker, 970 So. 2d 948, 957 (La. 2007).
      According to the state-court record, the underlying felony used as an
element of Lindsey’s firearm conviction was a 1985 conviction for simple
burglary. The information listed two 1985 convictions for simple burglary. One
simple burglary conviction could have served as the underlying felony for the
firearm conviction and the other could have served as a separate predicate
felony.
      Lindsey also asserts his two simple-burglary convictions constituted a
single offense for enhancement purposes, because the convictions were obtained
on the same day and thus could not be used separately in the same multiple-
offender bill of information. At sentencing for the underlying conviction, counsel
unsuccessfully contended likewise: the simple-burglary convictions constituted
a single offense for enhancement purposes. Accordingly, Lindsey could not show
in state court a “reasonable probability” that he would not have been adjudicated
a habitual offender had counsel moved to quash the information on the same
basis as his above-described, unsuccessful objection. Strickland, 466 U.S. at 694;
Geiger v. Cain, 540 F.3d 303, 309-10 (5th Cir. 2008).
      Finally, Lindsey contends counsel was also ineffective for failing to object
to the sentencing court’s adjudication of him as a “multiple offender”, instead of
as a “fourth offender”, which he contends resulted in an “indeterminate

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sentence”. Lindsey did not raise this claim in his motion for a COA. Therefore,
we do not consider it. Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011), cert.
denied, 132 S. Ct. 2374 (2012) (“We have jurisdiction to address only the issue
specified in the COA.”) (internal quotation omitted).
      AFFIRMED.




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