1 Pub. 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 aggrava ted 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 Penal ty Act, 1 

### Brown moved for authorization to file a successive petition2 28 U.S.C. § 2244(b).

3 498 U.S. 39 (1990).

4 See 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 (5 th

Cir. 1998).

6 Id. at 835 (quoting Rodriguez v. Superintendent, Bay State Correctional Ctr.

, 139

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

2 

### under 28 U.S.C. § 2254, 2 

### contending that the instruction on reasonable doubt given

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

. 3 

### A panel of

this cour t 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 Smith 5 

### we addressed the question whether the type of

Cage clai m 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 collateral7 Id. at 835 (quoting Rodriguez

, 139 F.3d at 275 and citing In re Vial

, 115 F.3d 1192

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

8 28 U.S.C. § 2244(b)(4); see also Bennett v. United States

, 119 F.3d 468, 469-70 (7 th

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 finds that the movant has not satisfied the requirements for 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 dismi s s 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 I n 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. I n re

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

successive p etition 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 unless the

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



### Accordingly, the trial court was obliged by the statute to dismiss Brown’s claim if9 We disapprove the approach taken in Tyler v. Cain

, No. 97-1549, 1998 WL 614183

(E.D. La. Sept. 10, 1998), where the court held that once the Fifth Ci rcuit 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).

10 See Lackey v. Johnson

, 116 F.3d 149 (5 th Cir. 1997); United States v. Kimler

, 150

F.3d 429 (5 th

Cir. 1998).

4 

### it did not meet the requirements of § 2244. 9



### The trial court granted the certif icate of appealability only as to the C age

claim; we therefore do not address Brown’s ineffective assistance claim. 1 0 

### We

deny Brown’s motion to remand.

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

AFFIRMED.