### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-30910 Summary Calendar

JOHN STANFORD LINDSEY, 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. 2:10-CV-4502

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * For this c hallenge to the denial o f r e l i e f u n der 28 U.S.C. § 2254, John Stanford Lindsey, L ouisi a n a p r isoner # 110560, is p r oceeding pro se and in forma pauperis

. His underlying state-court conviction is for attempted creation

or operation of a clandestine laboratory for t h e u n l awful manufacture of

m e t h a m p h e t a m i n e , attempted posse s s i o n w i t h i n t e n t t o d i s t r ib u t e methamphet a m i n e , c o n s p iracy to produce and manufacture methamphetamine, and possession of 12 g r a m s or more of pseudoephedrine. State v. Lindsey , No. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February22, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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2006 KA 1102, 2007 WL 4 37677, at *1 (La. Ct. App. 9 Feb. 2007) (unpublished). Lindsey was adjudicated a f o urth-felony o ffender and, accordingly, was sentenced to life imprisonment at hard labor wit h o u t t h e benefit of parole, probation, or suspension of sentence. Id. ; LA
. R E V
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. § 15:529.1(A)(1)(c)(ii) (2004) (current version at LA
. R E V
. S TA T . § 15:529.1(A)(4)(b)). He was unsuccessful in state court o n direct appeal and in s u b s e q u e nt post-conviction proceedings. The issue presented here was raised in the latter. His application for federal habeas relief c ontended, inter a lia , counsel was ineffective for failing to move to quash the m ultiple-offender bill o f information. The district court denied this claim on the merits, as well as denying a certificate of appealability (COA) for the claim. This ineffective-assistance-of-counsel (IAC) claim is the only one of the six issues p r e s e n t e d in the COA motion here for which our court granted a COA: whether counsel was i neffective for failing to move t o q u a s h the m ultipleoffender bill of information. Accordingly, at issue h ere is only that claim for IAC. A § 2254 application may not be granted unless the challenged state-court decision: “was cont r a r y t o , or involved a n unreasonable application of, clearly established [f]ederal law, a s determined b y the Supreme C ourt of the United States”; or “was based on a n u nreasonable determination of the facts in [the] light of the evidence presented”. 28 U.S.C. § 2254(d). Lind s e y f ails to satisfy this standard. For an IAC claim under § 2254, a nd consistent with the mandate of § 2254, federal courts do not engage in an inde p e n d e n t analysis of the claim; instead, they review the decision by the state court. E.g. , Harrington v. Richter , 1 31 S.Ct. 770, 788 (2011) (review is “doubly” deferential when federal court reviews IAC claims under § 2254). To establish IAC in s t ate court, Lindsey h ad to show: counsel performed deficiently; and defendant was prejudiced by that performance. Strickland v. W ashington , 4 66 U.S. 668, 687 (1984). T o show deficient performance t o the state c ourt, Lindsey had to show “c ounsel’s
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r e p r e s e nt ati o n f

e ll below a n objective standard of reasonableness”. Id. at 687-88. For sh o w i ng prejudice to the state court, Lindsey had to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”. Id. at 694. Adopting the magistrate judge’s co m prehensive report and recommendation, the district court a s sumed counsel’s failure to move to quash the m ultiple-offender bill of information con s t i tuted deficient performance. Nevertheless, the court ruled that performance did not prejudice Lindsey because the bill of information’s being quashed would merely have delayed the

same result, as the state could have then issued a new, correct multiple-offender bill o f information. Although the bill of information contained some inaccurate accounts of prior convictions, it was “clear that [Lindsey] had at least three prior convictions which could properly have been used to a djudicate him as a fourth offender”: those for possession of methamphetamine, possession of a firearm by

a c onvicted f

elon, and s i m p le burglary. Because at least two of these three, along with the current c onviction for Lindsey’s methamphetamine operat i on,
were punishable by 12 years’ imprisonment or m ore, the appli c ab le h abitualoffender stat u t e p rovided for life imprisonment without benefit of parole, probation, or suspension of sentence. LA
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. 15:529.1(A)(1)(c)(ii) (2004). Lindsey contends no combination o f his prior convictions could have sustained his adjudication as a fourth-felony offender. First, he maintains the firearm conviction was not punishable b y 12 years’ imprisonment or more when he committed the offense in 1989. But, the relevant time is not when he committed the predicate felony; rather, it is when he c ommitted t h e current (fourth) felony. “A defendant must be sentenced a c c o rding to sentencing
p r ovisions in effect at the time of the commission of the offense.” Stat e v . Sugasti , 820 So. 2d 518, 520 (La. 2002); see also S tate v. Grimes , 16 So. 3d 418, 425 (La. Ct. App. 2009) (“the applicable law is that in effect at the tim e o f the commission of the current offense and not the predicate crime”). When Lindsey
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committed the c urrent offense, possession of a firearm by a convicted felon was punishable by 10 to 15 years’ imprisonment. LA
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. S TA T . 14:95.1(B) (2003). Therefore, the f

irearm conviction c ould have served as a predicate felony for habitual-offender p urposes. See id. ; LA
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. § 15:529.1(A)(1)(c)(ii) (2004). Lindsey next contends the firearm and simple-burglary convictions could not have been used in the same multiple-of f e n d e r b i ll o f information. A conviction for felo n i n possession of a firearm may be u sed to enhance a subsequent conviction , b u t o nly if the underlying felony u sed a s an element of the firearm conviction i s not also u sed in the same multiple-offender bill of information. State v. Baker , 970 So. 2d 948, 957 (La. 2007). According to the state-court record, the underlying felony used as an element of Lindsey’s firearm conviction was a 1 985 c o n v i c tion for simple burglary. The information listed two 1985 convictions for simple burglary. One simple burglary conviction could have served as the underlyi ng felony for the firearm conviction and th e o t h e r could have served as a separate predicate felony. Lindsey also asserts his two s i m ple-burglary convictions c on s t i t u ted a single offense for enhancement purposes, because the convictions were obtained

on the same day and thus c ould n ot be u s e d s eparately in the same multip l eoffender bill of information. At sentencing for the underlying conviction, counsel unsuccessfully contended l ikewise: the simple-burglary convictions constituted

a single o ffense for enhancement purposes. Accordingly, Lindsey c ould not show in state court a “reasonable probability” that he would n ot have been adjudicated

a habitual offender had counsel moved to quash the information on the same b a s i s a s hi s ab ove-described, unsuccessful objection. Strickland , 466 U.S. at 694 ; Geiger v. Cain , 540 F.3d 303, 309-10 (5th Cir. 2008). Finally, Lindsey contends counsel was also ineffective for failing t o object to the sentencing court’s adjudication of him as a “multiple offender”, i n stead of

as a “fourth offender”, which he contends resulted in a n “indeterminate
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sentence”. Lindsey did not raise this claim in his motion for a COA. Therefore,

we do not consider it. Simmons v. Epps , 654 F .3d 526, 535 (5th Cir. 2011), cert. denied , 132 S. Ct. 2374 (2012) (“We have j urisdic ti on to address only the issue specified in the COA.”) (internal quotation omitted). AFFIRMED.

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