1 Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. UNITED STATES COURT OF APPEALS
for the Fifth Circuit

_____________________________________

No. 95-30339 Summary Calendar

_____________________________________

LEROY JOHNSON,

Petitioner-Appellant,

VERSUS

TERRY TERRELL, Warden, Etc., et al.,

Respondents-Appellees.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(94 CV 3350)

______________________________________________________ September 6, 1995

Before DAVIS, BARKSDALE and DEMOSS, Circuit Judges.

PER CURIAM: 1

Johnson appeals the district court's dismissal of his § 2254

petition. We affirm.

I.

Leroy Johnson, a prisoner of the State of Louisiana, is serving

a 30-year sentence for attempted armed robbery and attempted second

degree murder. At trial, the prosecution introduced evidence that

Johnson, wearing a stocking mask and a motorcycle helmet,2

app roached Larry Glorioso in front of Sam's Superette store and

demanded that Glorioso give hima money bag containing

approximately $8,000. Glorioso resisted, and Johnson beat Glorioso

severely about the head with a wrench and with the motorcycle

helmet until Glorioso was able to reach his gun and shoot Johnson.

After exhausting state remedies, Johnson filed a pro se
,

in forma pauperis , federal habeas corpus petition asserting that

his convictions for both attempted second degree murder and

attempted armed r obbery violate the Double Jeopardy Clause.

Johnson also argued that the evidence was insufficient to support

his convictio n for attempted murder and that the trial court

impro perly charged the jury concerning the elements of attempted

murder.

II.

A.

On appeal to this court, Johnson argues first that his

convictions violate the Doub le Jeopardy Clause, which prohibits

multiple punishments for the same offense. He contends that the

elements of both offenses

- attempted second degree murder and

attempted armed robbery were proved by the "same evidence," and he

was punished twice for the "same conduct."

Whether different statutes punish the same offense is

determined by the standard in B lockburger v. United States

, 2 8 4

U.S. 299 (1932). S ee also

, United States v. Singleton , 16 F.3d

1419, 1422 (5th Cir. 1994 ). That standard requires that the two

statutes be compared to determine "`whether each provision requires3

proof of an additional fact which the other does not.'" S ingleton

,

16 F.3d at 1422 (quoting Blockburger

, 284 U.S at 304). If "either

statute contains no element not also found in the other statute,"

the statutes fail the Blockburger test, precluding punishment under

both. Id

.

Johnson concedes on appeal that he was convicted under two

different sta t utes that required proof of different elements.

Under Bloc kburger , even if these convictions flow from the same

course of conduct, there is no violation of the Double Jeopardy

Clause and Johnson's contention that his federal constitutional

right was violated is without merit.

B.

Johnson's brief, liberally construed, also argues that the

evidence is i nsufficient to support his conviction for attempted

second degree murder. Specifically, he challenges the sufficiency

of the evidence to prove the element of "specific intent to kill."

The appropriate standard of review in this collateral

challenge, notwithstanding any state-law standard, is that

enunciated in Jackson v. Virginia , 443 U.S. 307, 319 (1979):

"[T]he relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt." The elements of the offense are defined by

state law. A lexand er v. McCotter , 775 F.2d 595, 598 (5th Cir.

1985).

In Louisiana, the crime of attempted second degree murder4

requires specific intent to kill. See State v. Allen , 571 So. 2d

758, 761 (La. Ct. App. 1990); State v. Pollard

, 585 So.2d 634, 638

( La. Ct. App. 1991). "Specific criminal intent is that state of

mind which exists when the circumstances indicate that the offender

actively desired the prescribed criminal consequences to follow his

act or his failure to act." S tate v. Lindsey

, 543 So. 2d 886, 902

(La. 1989) (quoting La. R.S. 14:10(1)), cert. denied

, 494 U.S. 1074

(1990).

At trial, Glorioso testified that Johnson hit him over the

head "rapidly" with something very hard. Johnson called him by

name and said "Larry, I'm gonna kill you." The two men struggled,

and Glorioso grabbed Johnson's wrist to stave off the wrench in

Johnson's hand. At that point, Johnson hit Glorioso with the

motorcycle helmet Johnson had been wearing. Glorioso almost lost

consciousness and had to let go of the wrench. Johnson started

hitting Glorioso with the wrench again. Glorioso managed to get to

his gun and shot Johnson.

Officer Greg Clay of the New Orl eans Police Department, who

responded to the call, stated that Glorioso was covered with blood

from his head to his shoulders. He was holding a gun and shouting

incoherently.

Glorioso was taken to the hospital and underwent approximately

four hours of plastic surgery. The plastic surgeon testified that

Glorioso's wounds were life-threatening. Glorioso suffered severe

trauma about the face and scalp, 15 deep cuts on his scalp down to

his skull, cuts on his forehead and under the eyes, massive2 Johnson asserts that the trial court erred in its

instruction to the jury on reasonable doubt. However, Johnson

did not raise this issue in the district court and we decline to

address it.

5 swelling about the face, and multiple fractures of the facial bones

and nose. The plastic surgeon wired the broken facial bones back

together and applied approximately 100 stitches to the wounds.

Viewing this evidence in the light most favorable to the

prosecution, a rational trier of fact could have found beyond a

reasonable doubt that Johnson actively desired to kill Glorioso

when he administe red the beating. Accordingly, the evidence was

sufficient to support Johnson's conviction for attempted second

degree murder. 2

III.

For the r easons stated above, the judgment of the district

court is AFFIRMED.