     Case: 16-30519      Document: 00513668547         Page: 1    Date Filed: 09/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-30519                              FILED
                                                                         September 7, 2016
                                                                           Lyle W. Cayce
In re: DONALD HENSLEY, JR.,                                                     Clerk

              Movant




                          Motion for an order authorizing
                      the United States District Court for the
                     Eastern District of Louisiana to consider
                     a successive 28 U.S.C. § 2254 application


Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Donald Hensley, Jr., Louisiana prisoner # 112218, was convicted by a
jury of armed robbery and sentenced to sixty years of imprisonment. State v.
Hensley, 900 So. 2d 1, 4 (La. Ct. App. 2005). The state trial court later found
Hensley to be a habitual offender and sentenced him to life without parole. Id.
at 4–5. A state appellate court affirmed his conviction and sentence, and the
Louisiana Supreme Court denied review. Id. at 14; State v. Hensley, 904 So.
2d 683 (La. 2005). Hensley then attempted to obtain postconviction relief,
which the state courts also denied. See Hensley v. Cain, No. 07-1423, 2008 WL




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30519
3365690, at *3 (E.D. La. Aug. 7, 2008); see also State ex rel. Hensley v. State,
942 So. 2d 549 (La. 2006).
       In 2007, Hensley filed a federal habeas petition, pursuant to 28 U.S.C.
§ 2254, challenging both his conviction and his sentence. A federal district
court rejected most of Hensley’s claims, including all claims directed at his
underlying conviction, but determined that Hensley had received ineffective
assistance of counsel during his habitual-offender proceeding. Consequently,
the    court   vacated    Hensley’s   habitual-offender    life   sentence   while
simultaneously reimposing Hensley’s original sixty-year sentence and
remanded to the trial court for the State to hold a new habitual-offender
hearing in its discretion. See generally Hensley v. Cain, 2008 WL 3365690.
The State chose not to hold such a hearing.
       Hensley now seeks authorization to file a new § 2254 petition challenging
his underlying conviction. Under 28 U.S.C. § 2244(b)(3)(A), a state prisoner
needs permission from a court of appeals to file a “second or successive” § 2254
application, and that permission may only be granted if the application
satisfies certain requirements. As explained below, Hensley’s petition does not
meet those requirements. So whether Hensley may proceed with his petition
depends on the threshold issue whether it would be “second or successive” at
all. Section 2244(b) does not define that phrase “second or successive,” which
is a “term of art.” Magwood v. Patterson, 561 U.S. 320, 332 (2010). And not
all second-in-time petitions are “second or successive.” Panetti v. Quarterman,
551 U.S. 930, 944 (2007). In Magwood, the Supreme Court clarified that even
if the claims in a petition were or could have been brought previously, that
petition is not “second or successive” if it “challenges a new judgment for the
first time.” 561 U.S. at 323–24. Whether Hensley needs this court’s permission
to proceed thus depends on whether the district court’s vacatur of his habitual-


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                                 No. 16-30519
offender life sentence and simultaneous reinstatement of Hensley’s original
and underlying sixty-year sentence effected a “new judgment.”
      Though the unique facts of this case make that question more difficult
than usual, we conclude that this adjustment of Hensley’s sentence did not
constitute a new “intervening judgment.”      Id. at 339.       “Whether a new
judgment has intervened between two habeas petitions, such that the second
petition can be filed without this Court’s permission, depends on whether a
new sentence has been imposed.” In re Lampton, 667 F.3d 585, 588 (5th Cir.
2012). Here, the reinstatement of Hensley’s original sentence, which has never
been invalidated, did not result in anything that “resemble[s] a full
resentencing.”   United States v. Jones, 796 F.3d 483, 486 (5th Cir. 2015)
(holding that a sentence modification pursuant to 18 U.S.C. § 3582(c)(2) did
not effect a new judgment under Magwood); cf. Magwood, 561 U.S. at 339
(finding a new judgment “where the state court conducted a full resentencing
and reviewed the aggravating evidence afresh”). Nor, clearly, did it result in
the entry of “a new judgment of conviction.” Lampton, 667 F.3d at 589. Hence,
on the facts of this particular case, Magwood’s rule is inapposite.
      Hensley therefore needs authorization from this court to proceed with
his habeas petition. To obtain such authorization, Hensley must make a prima
facie showing:
      (A) . . . that the claim relies on a new rule of constitutional law,
      made retroactive to case on collateral review by the Supreme
      Court, that was previously unavailable; or
      (B)   (i) the factual predicate for the claim could not have been
            discovered through the exercise of due diligence; and
            (ii) the facts underlying the claim, if proven and viewed in
            light of the evidence as a whole, would be sufficient to
            establish by clear and convincing evidence that, but for the
            constitutional error, no reasonable factfinder would have
            found the applicant guilty of the underlying offense.

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                                  No. 16-30519
28 U.S.C. § 2244(b)(2)(A), (B) (formatting altered).
      Hensley argues that his petition satisfies § 2244(b)(2)(A) because
Martinez v. Ryan, 132 S. Ct. 1309 (2012), announced a new constitutional rule
establishing a right to effective assistance of counsel in collateral proceedings
that has been made retroactive to cases on collateral review. Because he was
not afforded counsel during his state post-conviction relief proceedings,
Hensley asserts that he is entitled to bring a successive challenge to his armed
robbery conviction.     He is mistaken.       Martinez recognized a “narrow,”
“equitable” exception to the procedural default doctrine “[w]here, under state
law, claims of ineffective assistance of trial counsel must be raised in an initial-
review collateral proceeding . . . if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.” 132 S. Ct.
at 1313, 1319–20. That decision did not establish a new rule of constitutional
law. In re Sepulvado, 707 F.3d 550, 554 (5th Cir. 2013). Moreover, “the
Supreme Court has not made . . . Martinez . . . retroactive to cases on collateral
review . . . .” In re Paredes, 587 F. App’x 805, 813 (5th Cir. 2014). Accordingly,
Hensley’s successive petition is barred.
      For the reasons stated, IT IS ORDERED that Hensley’s motion for
authorization to file a second or successive § 2254 application is DENIED.




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