IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 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. His conviction and sentence were 1

affirmed on direct appeal. Johnson filed a federal habeas application in 1988, 2

United States Court of Appeals

Fifth Circuit

F I L E D

August 3, 2012

Lyle W. Cayce

Clerk

 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.

State v. Johnson, 598 So. 2d 1288, 1288-89 (La. Ct. App. 1992). 1

State v. Johnson, 356 So. 2d 421 (La. 1978).

2

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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. On remand, the district court ruled that federal habeas 3

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.” 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. Johnson subsequently initiated state post-conviction proceedings, 8

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. On the

9

recommendation of the magistrate judge, the district court determined that

Johnson’s application was successive because it challenges the same judgment

Johnson v. Smith, No. 89-3224, slip op. at 5-6 (Mar. 7, 1990).

3

Johnson, 598 So. 2d at 1289. 4

 498 U.S. 39 (1990), overruled in part, Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). 5

 403 So. 2d 8 (La. 1981).

6

Johnson, 598 So. 2d at 1292. 7

State ex rel. Johnson v. State, 639 So. 2d 1176 (La. 1994).

8

 508 U.S. 275 (1993). 9

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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. We may authorize the filing of a successive 10

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, in 12

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. § 2244(b)(3)(A). 

10

 28 U.S.C. § 2244(b)(2), (b)(3)(C). 11

 130 S. Ct. 2788 (2010).

12

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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. An application is not 13

successive just because it is second-in-time. Instead, “AEDPA’s bar on second 14

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. The 16

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. We held 18

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

Propes v. Quarterman, 573 F.3d 225, 229 (5th Cir. 2009). 

13

See Crone v. Cockrell, 324 F.3d 833, 836-37 (5th Cir. 2003); In re Cain, 137 F.3d 234, 14

235 (5th Cir. 1998).

In re Lampton, 667 F.3d 585, 588 (5th Cir. 2012).

15

 211 F.3d 862, 863 (5th Cir. 2000) 16

Id. 17

Id. at 869.

18

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could have alleged those claims in that [initial] motion.” We held, on the other 19

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). He received life sentences 21

for both of these convictions. Lampton’s convictions and sentence were 22

affirmed on direct appeal. He filed a § 2255 motion, and the district court

23

determined that his convictions for both conspiracy and CCE violated the

prohibition against double jeopardy. It therefore vacated his conspiracy 24

conviction and the corresponding life sentence, leaving his CCE conviction and

corresponding life sentence intact. Lampton filed another § 2255 motion, after 25

a number of failed attempts, arguing that his petition was not successive

because his judgment of conviction was amended by his successful earlier

petition. We rejected Lampton’s argument because, despite his successful 26

Id. 19

Id. 20

 667 F.3d 585, 586-87 (2012). 21

Id. at 587.

22

Id. 23

Id. 24

Id. 25

Id. 26

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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.

Id. at 589.

27

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