   Case: 12-30710         Document: 00511944011           Page: 1   Date Filed: 08/03/2012




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

                                                                              FILED
                                                                             August 3, 2012

                                         No. 12-30710                        Lyle W. Cayce
                                                                                  Clerk

In re: LEONARD JOHNSON,

                                                    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 HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Leonard Johnson, Louisiana prisoner # 82109, has filed a motion for
authorization to file a successive application for a writ of habeas corpus. For the
following reasons, we deny his motion as unnecessary.
                                                I
       Johnson was convicted of second-degree murder in 1976 in Louisiana state
court and sentenced to imprisonment for life.1 His conviction and sentence were
affirmed on direct appeal.2 Johnson filed a federal habeas application in 1988,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
           State v. Johnson, 598 So. 2d 1288, 1288-89 (La. Ct. App. 1992).
       2
           State v. Johnson, 356 So. 2d 421 (La. 1978).
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and the district court denied relief. On appeal, this court remanded the case to
the district court to determine whether Johnson received ineffective assistance
of appellate counsel.3 On remand, the district court ruled that federal habeas
relief should be granted unless the state afforded Johnson an out-of-time appeal.
      The state trial court granted Johnson an out-of-time appeal in 1990.4
While his appeal was pending, the Supreme Court of the United States decided
Cage v. Louisiana, which concerned the adequacy of a jury instruction on the
meaning of “beyond a reasonable doubt.”5 Johnson challenged the trial court’s
reasonable-doubt instruction based on both Cage and a Louisiana decision, State
v. Mack.6 The state appellate court determined that these cases announced new
rules that were not retroactive in application and therefore affirmed Johnson’s
conviction and sentence.7            The Louisiana Supreme Court denied a writ of
certiorari.8 Johnson subsequently initiated state post-conviction proceedings,
which, according to Johnson’s motion in this court, remained pending until
November 19, 2010.
      Johnson filed a second habeas application in federal court in 2011 arguing,
among other things, that the reasonable-doubt instruction given at his trial was
unconstitutional in light of Cage and Sullivan v. Louisiana.9                         On the
recommendation of the magistrate judge, the district court determined that
Johnson’s application was successive because it challenges the same judgment

      3
          Johnson v. Smith, No. 89-3224, slip op. at 5-6 (Mar. 7, 1990).
      4
          Johnson, 598 So. 2d at 1289.
      5
          498 U.S. 39 (1990), overruled in part, Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991).
      6
          403 So. 2d 8 (La. 1981).
      7
          Johnson, 598 So. 2d at 1292.
      8
          State ex rel. Johnson v. State, 639 So. 2d 1176 (La. 1994).
      9
          508 U.S. 275 (1993).

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                                          No. 12-30710

of conviction and sentence as his previous habeas application. The district court
therefore dismissed his application without prejudice to refiling after obtaining
this court’s permission to file a successive habeas application.
                                                II
      Prior to filing a successive § 2254 application, an applicant must obtain an
order from the appropriate court of appeals authorizing the district court to
consider the application.10             We may authorize the filing of a successive
application only if the applicant makes a prima facie showing that either (1) “the
claim relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable,” or (2)
“the factual predicate for the claim could not have been discovered through the
exercise of due diligence” and “the facts underlying the crime, 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 constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.”11
                                                III
      Johnson makes two arguments as to why he should be allowed to file the
application at issue.         He first asserts that his application is not actually
successive because his original conviction and sentence were rendered non-final
by the grant of an out-of-time appeal. He relies on Magwood v. Patterson,12 in
which the Supreme Court held that the applicant’s challenge to a death sentence
reimposed after appeal and remand was not successive. Johnson alternatively
argues that even if his application is successive, his Cage claim relies on a new




      10
           28 U.S.C. § 2244(b)(3)(A).
      11
           28 U.S.C. § 2244(b)(2), (b)(3)(C).
      12
           130 S. Ct. 2788 (2010).

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                                         No. 12-30710

rule of constitutional law made retroactive by the Supreme Court to cases on
direct appeal or not yet final.
       The Antiterrorism and Effective Death Penalty Act (AEDPA) does not
define what constitutes a successive application.13                An application is not
successive just because it is second-in-time.14 Instead, “AEDPA’s bar on second
or successive petitions only applies to a later-in-time petition that challenges the
same state-court judgment as an earlier-in-time petition.”15
       Our previous cases addressing whether an application filed after an earlier
successful application is successive provide little guidance in this case. In
United States v. Orozco-Ramirez, the applicant filed a motion challenging his
sentence pursuant to 28 U.S.C. § 2255, arguing that he received ineffective
assistance of counsel because his counsel did not file a notice of appeal.16 The
district court ordered an out-of-time appeal, and on appeal, the applicant raised
two issues relating to the quantity of drugs forming the basis of his sentence.17
After his sentence was affirmed, he filed another § 2255 petition, asserting a
number of errors, including that he received ineffective assistance of trial
counsel and ineffective assistance of counsel on his out-of-time appeal.18 We held
that the applicant’s ineffective assistance of trial counsel claim was successive
because “the facts underlying [the applicant’s] claims relating to his counsel’s
performance at trial occurred before he filed his initial habeas motion” and “he


       13
            Propes v. Quarterman, 573 F.3d 225, 229 (5th Cir. 2009).
       14
         See Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir. 2003); In re Cain, 137 F.3d 234,
235 (5th Cir. 1998).
       15
            In re Lampton, 667 F.3d 585, 588 (5th Cir. 2012).
       16
            211 F.3d 862, 863 (5th Cir. 2000)
       17
            Id.
       18
            Id. at 869.

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                                          No. 12-30710

could have alleged those claims in that [initial] motion.”19 We held, on the other
hand, that his claim for ineffective assistance of counsel on his out-of-time
appeal was not successive because the facts underlying that claim did not arise
until after his initial habeas application.20
      In In re Lampton, Lampton was convicted of multiple offenses, including
one count of conspiracy to distribute heroin and marijuana and one count of
engaging in a continuing criminal enterprise (CCE).21 He received life sentences
for both of these convictions.22           Lampton’s convictions and sentence were
affirmed on direct appeal.23 He filed a § 2255 motion, and the district court
determined that his convictions for both conspiracy and CCE violated the
prohibition against double jeopardy.24             It therefore vacated his conspiracy
conviction and the corresponding life sentence, leaving his CCE conviction and
corresponding life sentence intact.25 Lampton filed another § 2255 motion, after
a number of failed attempts, arguing that his petition was not successive
because his judgment of conviction was amended by his successful earlier
petition.26 We rejected Lampton’s argument because, despite his successful




      19
           Id.
      20
           Id.
      21
           667 F.3d 585, 586-87 (2012).
      22
           Id. at 587.
      23
           Id.
      24
           Id.
      25
           Id.
      26
           Id.

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                                       No. 12-30710

motion, he was still serving the same life sentence for the CCE conviction—his
earlier motion did not lead to a new judgment of conviction.27
      Neither of these cases is directly applicable to the present case. In neither
case were we confronted with a situation in which a state court had addressed
a claim on the merits that was not raised in the initial habeas application. Nor
could those cases have addressed such a situation because they were cases
reviewing federal convictions, not state convictions. We conclude that in this
limited situation, in which a state court grants an applicant an out-of-time
appeal and addresses a claim on the merits that was not raised in the applicant’s
initial habeas application, the subsequent habeas application in federal court
challenging the state court’s decision on that claim is not successive. As to the
claims addressed by the state appellate court in the out of time appeal, review
of these claims was not final under AEDPA until the state court process of
review was completed. Because Johnson’s application is not successive, we deny
his motion for authorization to file a successive application as unnecessary.
                                   *        *         *
      Johnson’s motion for authorization to file a successive § 2254 application
is DENIED as unnecessary.




      27
           Id. at 589.

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