1Pub. L. 104-132, 110 Stat. 1214 (1996).

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30733

Summary Calendar

MICHAEL J. BROWN,

Petitioner-Appellant,

versus

C.M. LENSING, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

April 19, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

Michael J. Brown was convicted of aggravated burglary in 1983. His

conviction was affirmed on appeal and has been tested in several collateral attacks,

state and federal. In 1996, in accordance with the Antiterrorism and Effective

Death Penalty Act,1 Brown moved for authorization to file a successive petition
2

28 U.S.C. § 2244(b).

3

498 U.S. 39 (1990).

4See In re Michael J. Brown, No. 96-00310 (Nov. 1, 1996) (quoting 28 U.S.C. §

2244(b)(2)(A)).

5

142 F.3d 832 (5th Cir. 1998).

6

Id. at 835 (quotingRodriguez v. Superintendent,Bay State Correctional Ctr., 139

F.3d 270, 275 (1st Cir. 1998)).

2

under 28 U.S.C. § 2254,2contending that the instruction on reasonable doubt given

to his jury violated his constitutional rights under Cage v. Louisiana.

3

 A panel of

this court authorized the filing, noting that Brown had satisfied 28 U.S.C. §

2244(b)(2)(A) by making a prima facie case “that 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.”4

Thereafter, in In re Smith5 we addressed the question whether the type of

Cage claim pressed by Brown qualifies under § 2244(b)(2)(A), holding that the

petitioner was not entitled to file a successive habeas petition because he had failed

to “‘identify a Supreme Court edict that renders Cage retroactively applicable to

cases on collateral review.’”6 We agreed with our colleagues in the First, Fourth,

and Eleventh Circuits that the plain language of the statute requires an applicant to

“point to a Supreme Court decision that either expressly declares the collateral
7

Id. at 835 (quoting Rodriguez, 139 F.3d at 275 and citing In re Vial, 115 F.3d 1192

(4th Cir. 1997) (en banc); In re Hill, 113 F.3d 181 (11th Cir. 1997)).

8

28 U.S.C. § 2244(b)(4);see alsoBennett v. United States, 119 F.3d 468, 469-70 (7th

Cir. 1997) (“[Our] . . . grant is . . . tentative in the following sense: the district court must

dismiss the motion that we have allowed the applicant to file without reaching the merits of

the motion, if the court findsthat the movant has notsatisfied the requirementsfor the filing

of such a motion. 28 U.S.C. § 2244(b)(4). The movant must get through two gates before

the merits of the motion can be considered.”); United States v. Kashiwabara, 962 F. Supp.

1278 (D. Hawaii 1996) (invoking 28 U.S.C. 2244(b)(4) to dismiss a successive petition

authorized by the Ninth Circuit under 28 U.S.C. § 2244(b)(2)).

3

availability of the rule . . . or applies the rule in a collateral proceeding.”7

In a thorough and careful opinion, the trial court determined that Brown had

failed to identify any decision by the Supreme Court authorizing collateral review

of his Cage claim, and dismissed the claim, citing In re Smith. The court then

granted a certificate of appealability solely on the Cage claim. 

We conclude that the trial court properly dismissed Brown’s petition. In re

Smith is controlling, binding precedent. Our authorization for Brown to file a

successive petition is not dispositive of the critical question. The statute

specifically directs the trial court to “dismiss any claim presented in a second or

successive application that the court of appeals has authorized to be filed unlessthe

applicant shows that the claim satisfies the requirements of this section.”8

Accordingly, the trial court was obliged by the statute to dismiss Brown’s claim if
9We disapprove the approach taken in Tyler v. Cain, No. 97-1549, 1998 WL614183

(E.D. La. Sept. 10, 1998), where the court held that once the Fifth Circuit authorizes a

successive petition, the trial court is no longer bound by the dictates of 28 U.S.C. §

2244(b)(2)(A). That holding is irreconcilable with § 2244(b)(4). Commentators agree that

the trial court must make its own determination that the statutory prerequisites are satisfied.

See, e.g., Robert S. Madancy, Jr., Shawn M. Bates & Timothy Lambert, Twenty-Seventh

Annual Review of Criminal Procedure, 86 Geo. L.J. 1896, 1923 (1998); Larry W. Yackle,

Developments in Habeas Corpus, 21-Dec. Champion 16, 17 (1997).

10See Lackey v. Johnson, 116 F.3d 149 (5thCir. 1997); United States v. Kimler, 150

F.3d 429 (5th Cir. 1998).

4

it did not meet the requirements of § 2244.9

The trial court granted the certificate of appealability only as to the Cage

claim; we therefore do not address Brown’s ineffective assistance claim.10 We

deny Brown’s motion to remand.

For these reasons, the judgment of the trial court is, in all respects,

AFFIRMED.