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

                                                 FILED
                                                                            April 23, 2009
                                     No. 08-30570
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk
CHARLES BUTLER

                                                   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. 2:07-CV-5562


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Charles Butler, Louisiana prisoner # 366870, through counsel appeals the
district court’s denial of his 28 U.S.C. § 2254 petition, challenging his conviction
for attempted manslaughter. The district court granted Butler’s motion for a
certificate of appealability on the following issues: (1) whether the retroactive
application of a state judicial decision concerning the Louisiana Habitual
Offender statute violated the Ex Post Facto Clause; and (2) whether Butler’s life




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30570

sentence was excessive “insofar as it is impacted by finding in petitioner’s favor
as to claim one above.”
      The respondent argues that the COA motion filed by Butler’s counsel did
not specify the name of the court to which the appeal was taken, and therefore,
it was not the functional equivalent of a notice of appeal. This court has excused
the failure to name it as the court to which the appeal is taken where the
appellant has evinced an intent to appeal and “this is the only court to which an
appeal may be had.” McLemore v. Landry, 898 F.2d 996, 999 (5th Cir. 1990).
Therefore, Butler’s COA motion is construed as a timely notice of appeal. Cf.
Stevens v. Heard, 674 F.2d 320, 323 (5th Cir. 1982).
      Butler argues that the trial court incorrectly applied a retroactive judicial
interpretation of the Louisiana Habitual Offender statute to his case in violation
of the Ex Post Facto Clause. The retroactive application of a new judicial
interpretation of a criminal statute does not implicate the Ex Post Facto Clause.
Rogers v. Tennessee, 532 U.S. 451, 460 (2001). Butler has not shown that the
retroactive application of the Louisiana Supreme Court’s reinterpretation of the
statute violated his due process rights as he has not shown that it was
“‘unexpected and indefensible by reference to the law which had been expressed
prior to the conduct in issue.’” See id. at 462; Janecka v. Cockrell, 301 F.3d 316,
324 n.11 (5th Cir. 2002). The plain language of the statute itself does not
contain a sequencing requirement. L A. R EV. S TAT. A NN. § 15:529.1. The statute
was not amended during this time period between the Louisiana Supreme
Court’s decisions in State ex rel. Mims v. Butler, 601 So. 2d 649, 650 (La. 1992),
overruled by State v. Johnson, 884 So. 2d 568 (La. 2004) and Johnson, 884 So.
2d at 573-79. In Johnson, the Louisiana Supreme Court merely reinterpreted
the effect of a 1982 amendment to the statute. Contrary to Butler’s argument,
a 2005 amendment to the statute did not reinstate the Mims decision; rather, it
amended the statute to provide that if multiple convictions are obtained on the
same day, they count as one conviction for future multiple offender purposes.

                                        2
                                   No. 08-30570

See L A. R EV. S TAT. A NN. § 15:529.1(B) (applicable to convictions obtained after
October 19, 2004). The Louisiana Supreme Court in Johnson gave the statute
a different reasonable interpretation which was not unexpected and indefensible.
See Rogers, 532 U.S. at 462; see also Janecka, 301 F.3d at 324 n.11. Therefore,
the district court did not err in denying habeas relief on this claim.
      Butler argues that his life sentence is excessive in violation of the Eighth
and Fourteenth Amendments and especially in light of the violation of the
Ex Post Facto Clause. We have held that the retroactive application of the
judicial reinterpretation of the Louisiana Habitual Offender statute did not
violate Butler’s rights under the Ex Post Facto Clause. To the extent Butler is
arguing that his sentence is constitutionally excessive in violation of the Eighth
and Fourteenth Amendments, the district court did not grant a COA on this
issue. Butler did not make an express request to expand the COA to include this
additional issue. See United States v. Kimler, 150 F.3d 429, 430 (5th Cir. 1998).
Because this court’s review is limited to the issue specified in the grant of COA,
the court need not consider Butler’s argument that his sentence is
constitutionally excessive    in   violation   of the   Eighth   and     Fourteenth
Amendments. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
      He also argues that the trial court erred in imposing the statutory
maximum sentence of life imprisonment without providing sufficient reasons as
required by L A. C ODE C RIM. P ROC. art. 894.1(C). His claim that the trial court
violated state law is not cognizable in this federal habeas proceeding. See Estelle
v. McGuire, 502 U.S. 62, 67 (1991).
      AFFIRMED.




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