### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-30710
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 m o t i o n 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 w a s c onvicted of second-degree murder in 1976 in Louisiana state court and sentenced to imprisonment for life. His conviction and sentence were 1 affirmed on direct appeal. Johnson filed a federal habeas application in 1988, 2 U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 3, 2 012 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR
. R. 47.5 , the cour t has dete rm inedthat thi s op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR
. R. 47.5 .4. State v. Jo hnson , 598 So. 2d128 8, 1288- 89 ( La. Ct. Ap p. 199 2). 1 State v. Jo hnson , 356 So. 2d421 ( La. 1978)

. 2 Case: 12-30710 Document: 00511944011 Page: 1 Date Filed: 08/03/2012No. 12-30710

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. On remand, the district court r u l e d t hat federal habeas 3 relief should be granted unless the state afforded Johnson an out-of-time appeal. The state trial court granted J o h nson 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 jur y instruction on the meaning of “beyond a reasonable doubt.” Johnson challenged the trial court’s 5 reasonable-doubt instruction based on both Cage and a Louisiana decision, State

v. Mack

. The state appellate court determined that these cases announced new

6 rules that were not retroactive in application and therefore affirmed Johnson’s conviction and sentence. The Louisiana Supreme Court denied a writ of 7 certiorari. John s o n s ubsequently initiated state post-conviction proceedings,

8

w h i c h, according to Johnson’s motion in this court, remained pending unt i l 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
u n c o n s titutional in light of Cage and Sullivan v. Louisiana

. On t h e 9

recom mendation of the magistrate judge, the district court determined that Johnson’s application was successive because it challenges the same judgment

Johns on v. Sm ith , No. 89- 3224, s lip op. at5- 6 (Mar

. 7, 1990)

. 3 Johns on , 598 So. 2dat128 9. 4498 U.S . 39 (199 0), ove rru le d in par t , Estel lev. Mc Gu ir e , 502 U. S. 62, 72 n.4 (19 91). 5
403 S o. 2d 8 ( La. 1981)

. 6 Johns on , 598 So. 2dat129 2. 7 State ex rel

. Johns on v. State , 639 So. 2d117 6 ( La. 1994)

. 8
508 U .S

. 275 (199 3). 9 2 Case: 12-30710 Document: 00511944011 Page: 2 Date Filed: 08/03/2012No. 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 d i s trict court to consider the application. We may aut h orize the filing of a successive 1 0 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 t o 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 p r oven and viewed in ligh t o f t h e e v idence as a whole, would be sufficient to establish by clear and convincing evidence that, but for const i t u t i onal error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 1 1 III Johnson makes two arguments as to why he should be allowed to file the application at issue. He first asserts that his applic a tion is not actually successive because his original conviction and sentence were rendered non-final by the grant of an out-of- t i m e appeal. He relies on Magwood v. Patterson , in 1 2 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

28 U. S. C. § 2 244(b)( 3)(A). 1 0
28 U. S. C. § 2 244(b)( 2), (b)( 3)( C). 1 1
130 S

. Ct. 278 8 ( 2010)

. 1 2 3 Case: 12-30710 Document: 00511944011 Page: 3 Date Filed: 08/03/2012No. 12-30710

rule of constitutional law made re t r o a c t i v e by the Supreme Court to cases on direct appeal or not yet final. T he Antiterrorism and Effective Death Penalty Act (AEDPA) does n o t define what constitutes a successive application. An a p p l i c a tion is not 1 3 successive just because it is second-in-time. Instead, “AEDPA’s bar on second 1 4

or successive petitions only applies to a later-in-time petition that challenges the same state-court judgment as an earlier-in-time petition.” 1 5 O u r p r e vious cases addressing whether an application fil e d af t e r a n e a rli e r successful application is successive provide little guidance in th i s case. In United States v. Orozco-Ramirez , the applicant filed a motion cha l l e n g i n g his sentence pursuant to 28 U.S.C. § 2255, a r g u i n g that he received ineffective assistance of counsel because his counsel did not file a n o t i c e of appeal. The 1 6 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. 1 7 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. We held 1 8 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

Prop es v. Q uar term an , 573 F.3d225 , 229 (5t h Cir

. 2009)

. 1 3 See Crone v. Cockr el l , 324 F.3d 833, 836- 37 (5t h Cir. 2003) ; In re Cai n , 137 F.3d 234, 1 4 235 (5t h Cir

. 1998)

.

In reLa mp ton , 667 F.3d585 , 588 (5t h Cir

. 2012)

. 1 5
211 F. 3d 862, 863 ( 5th Cir. 200 0) 1 6
Id. 1 7
Id. at869

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could have alleged those claims in that [initial] motion.” We held, on the other 1 9 hand, that his claim for ineffective assistance of couns e l o n his out-of-time appeal was not successive because the facts underlying that claim did not arise until afterhis initial habeas application. 2 0 In In re Lampton , Lampton was convicted of multiple offenses, including

one count of conspiracy to distribute heroin a n d marijuana and one count of engaging in a continuing criminal enterprise (CCE). He received life sentences 2 1 for both of these convictions. Lampton’s convictions a n d s e ntence were 2 2

a ffirmed on direct appeal. He filed a § 2255 motion, and the distr i c t c o u r t 2 3 determined that his convictions for both consp i r a cy and CCE violated the prohibition against double jeopardy. I t t herefore vacated his conspiracy 2 4 conviction and the corresponding life sentence, leaving his CCE conviction and corresponding life sentence intact. Lampton filed another § 2255 motion, after 2 5

a number of failed attempts, arguing that his pe t ition was not successive becaus e h i s j udgment of conviction was amended by his successful earlier petition. We rejected Lampto n ’ s argument because, despite his successful

2 6

Id. 1 9
Id. 2 0
667 F. 3d 585, 586 -87 (201 2). 2 1 Id. at587

. 2 2
Id. 2 3
Id. 2 4 Id. 2 5
Id. 2 6 5 Case: 12-30710 Document: 00511944011 Page: 5 Date Filed: 08/03/2012No. 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. 2 7 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 address e d s u c h a situation because they were cases reviewing federal convictions, not sta t e c onvictions. We conclude that in this limited situation, i n 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 applicatio n , 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 no t f i n a l u n d er 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.

Id. at589

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