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

No. 10-30342

NOEL AUSTIN, Petitioner – Appellant
v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent – Appellee

Appeal from the United States District Court for the Eastern District of Louisiana

Before KING, GARZA, and GRAVES, Circuit Judges. PER CURIAM: On April 11, 2003, Petitioner-Appellant N o e l Au s tin was arrested in a sting o p e r atio n af

t e r att e m p ting to sell cocaine to a confidential informant. When the authorities moved in to make the arrest, Austin unsuccessfully sought to flee the scene in his sports utility vehicle, and in the process nearly ran over several arresting officers. Austin was convicted of two counts of attempted first degree murder, one count of possession with intent to distribute cocaine, and one count of aggravated battery, and was sentenced to fo u r c o n c urrent terms of imprisonment

. T h e court later imposed a life sentence on the first count of attempted first degree murder due to Austin’s sta t u s as a habitual offender. Au s t i n’s conviction was affirmed on direct appeal, and state habeas relief was 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 Octob er 17 , 20 11 Lyle W . Cayce Clerk Case: 10-30342 Document: 00511634377 Page: 1 Date Filed: 10/17/2011No. 10-30342

denied. He subsequently filed a pe t ition for writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, raising several grounds for relief, including a violation of the Double Jeopardy Clause of th e Fifth Amendment. The district court denied relief. We granted a certificate of appealability as to Austin’s double jeopardy c l a im only. We affirm the district court’s judgment denying Austin’s habeas corpus petition.

I. FACTUAL AND PROCEDURAL BACKGROUND O n t he evening of April 11, 2003, law enforcement officers with the Louisiana State Police Gulf Coast High Intensity Drug-Trafficki n g t ask force (“HIDO”), in cooperation with the Drug Enforcement Administration (“DEA”), executed a sting operation outside a restaurant in Jefferson Parish, Louisiana. With the assistance of a confidential informant and undercover DEA Agent Carlton Simmons (“Simmons”), HIDO officers arranged for the purchase of one kilogram of cocaine from Petitioner - Ap p ell ant No el Au s tin (“ Au s tin”) f

o r $ 2 1 , 5 0 0

. Several members of the Jefferson Parish Sheriff’s Office assisted the state police in this operation. On the night in question, Aust i n a r riv e d in a sports utility vehicle and parked in the restaurant’s parking lot. He walked between his vehicle and the restaurant several times, and eventually met an individual in another car (later identified as his brother) who handed him an unidentified item. Austin then met with both the confidential informant and Agent Simmons inside the restaurant t o a r r a n g e the details of the purchase. After leaving the restaurant, Simmon s returned to his car, while Austin and the confidential informant walked over to Austin’s p arked vehicle. The informant soon confirmed that Austin had the cocaine in his possession, and communicated this to Agent Simmons. Simmons rel a y e d this information to the other officers, who then moved in to make the arrest.

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Several law enforcement officers surrounded Austin’s parked vehicle, and ordered him to surrender. Instead, Austin backed out of the parking space and towards two officers, who quickly moved o u t of the way. Austin then collided with an undercover vehicle, but kept driving. One officer fired at Austin’s vehicle

as it swerved and narr o w l y m issed a fellow officer. Three other officers then stood in front of the vehicle and repeatedly ordered Austin to stop. Austin did not heed their w a r n i n g, and instead accelerated towards them. The officers then fired at the vehicle, and Austin swerved at the last minute. After nearly running over several officers, Austin drove out of the restaurant parking lot, ran over a median in the street, and crashed into a light pole in a nearby parking lot. A pursuing officer then fired into the vehicle after hearing what he thought sounded like gunshots (although i t was later determined that Austin was not armed). Finding that Austin had been shot, the police called for the paramedics. Upon arrival, the paramedics cut open Austin’s pant leg, at which point a kilogram of cocaine fell to the ground. The cocaine was later determined to have a street value of between $100,000 and $ 200,000. On October 9, 2003, the Jefferson Parish District Attorney filed an eight count bill of in formation against Austin, charging him with six counts of attempted first degree murder in violation of LA

. R E V
. S T A T
. § 1 4 : 27 and 14:30(A), corresponding to the six law enforcement officers on the scene (counts one through six), one count of possession of more than 400 grams of cocaine in violation of LA

. R E V
. S TAT
. § 40:967(F) (count seven), and one count of possession with intent to distribute cocaine in violation of LA

. R E V
. S TAT
. § 40:967(A) (count

e i ght). Importantly, the six counts of attempted first degree murder did not specify which of the applicable statutory circumstances under Section 14:30(A) (specific int e n t t o kill a police officer, intent to kill more than one person, or intent to kill while engaged in cocaine distribution) provided the basis for the

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charges. The state later dismi s s e d c o u n t seven, but went to trial on the remaining counts. Austin was found guilty on counts one, two, and eight, an d guilty of the responsive verdict of aggravated battery on count five. On M a r c h 4 , 2004, the trial court sentenced Austin to concurrent prison terms of fifty years for each attempted murder conviction, ten years for the aggravated battery conviction, and thirty years for the possession with intent to distribute cocaine conviction. Pursuant to LA

. R E V
. S TAT
. § 15:529:1, the state subsequently filed a “habitual offender bill of information” against Austin based upon his prior convictions for cocaine distribution in 1991 and f o r a t t empted murder in 1995. Following a hearing, the trial court found Austin to be a third time felony offender, vacated his original sentence as to count one, and imposed a sentence of life i m p risonment without parole, probation, or suspension of sentence, to r u n concurrently with the sentences on the other counts. Austin’s sentences were affirmed on direct appeal, and his p e t i t i o n for state habeas relief was denied. See State v . A u s t i n , 900 So. 2d 867 (La. App. 5 Cir. 2005) (direct appeal); 916 So. 2d 143 (La. 2005) (denial of writ of certiorari); 963 So. 2d 389 (La. 2007) ( denial of writ of habeas corpu s )

. Austin timely filed his petition for writ of habeas corpus in the district court on December 6, 2007. In his habeas petition, Austin argued that (1) he was denied protection against double jeopardy, (2) he was denied effective assi s t a n c e of counsel, (3) he was denied a fair trial because the trial court failed to consider or declare a mistrial due to mid-trial prejudicial publicity, and (4) the trial court erred in denying his motion to reveal the identity of the confidential informant. The magistrate judge recommended that habeas relief be denied. Austi n v . Ca i n , No. 07-9362, 2009 WL 6319555 (E.D. La. Oct. 16, 2009). The distr i c t c o u r t adopted this recommendation over Austin’s objecti o n s , and denied a certificate of

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appealability (“COA”). Austin v. Cain , No. 07-9362, 2010 WL 1294060 (E.D. La. Mar. 26, 2010). We granted a COA as to Austin’s double jeopardy claim only, specifically to consider whether Austin was subjected to double jeopardy b a s e d upon his conviction and sentenc e f o r b oth possession with intent to distribute cocaine unde r LA

. R E V
. S TAT
. § 40:967(A)(1) and attempted first degree murder under LA

. R E V
. S TAT
. § 14:30, where the attempted first degree mur d e r conviction could have been based on a specific intent to ki l l o r i n f l i ct great bodily harm upon a person while engaged in the distribution of cocaine, as provided by LA

. R E V
. S TAT
. § 14:30(A)(6). 1 II. STANDARD OF REVIEW This habeas proceeding is subject to the Antiterrori s m an d E f f e ctive Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, as Austin filed his habeas petition on December 6, 2007, well after the effective date of AEDPA. Lindh v. Murphy , 521 U.S. 320, 324-26, 336 (1997). Under AEDPA, a federal court may not grant a p e t i tioner habeas relief on a claim that was adjudicated on the merits by th e state court unless the st a t e c o u r t decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The phrase “clearly established Federal law, as determined by th e S u p r e m e Court,” “refers to the holdings, as opposed to the dicta, of [the

Altho ugh Aust in wa s se nten ced to conc urr ent rat her than conse cut ive pr iso n ter ms , 1
conc urr ent se nten ces may st ill cons ti t u t e “m ulti ple puni shm ents ” for doub le jeop ardy pur pos es . See Bal l v. Uni ted States , 470 U. S. 856, 864- 65 (198 5) (“ The se cond convic tio n, wh os e conc om itant se nten ce is se rved conc urr entl y, doe s not evapo rat e sim ply beca use of the conc urr ence of the se nten ce. The se par ate conv ic tion , apar t fr om the conc urr ent se nten ce, has pot enti al adver se coll ater al cons equenc es that ma y n o t be ignore d. ”) ; Uni ted States v. Bri tt , 112 F. App ’x 352, 357 ( 5 t h Cir. 2004) (“ The Sup rem e Court [in Bal l] has clea rly st ated that even conc urr ent se nten ces can c o m p ris e mul tip le puni shm ents violat ive of the Do uble Jeop ardy Claus e.” ). 5 Case: 10-30342 Document: 00511634377 Page: 5 Date Filed: 10/17/2011No. 10-30342

Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor , 529 U.S. 362, 412 (2000). “An unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because t h a t c o urt concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously

or incorre c t l y . Rather, that application must be objectively unreasonable.

. . . AEDPA thus imposes a highly deferential standard for evalu a t i n g state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett , __ U.S. __, 130 S. Ct. 1855, 1862 (2010) (cit a tions and internal quotation marks omitted). The d e c i s i o n of a state court is “deemed contrary to clearly established federal law if it reaches a le g al conclusion in direct conflict with a prior deci s i o n o f t he Supreme Court or if it reaches a dif f erent conclusion than the Supreme Court based on materially indistinguishable facts.” Gray v. Epps , 616 F.3d 436, 439 (5th Cir. 2010) (citing Williams , 529 U.S. at 404-08). A state court’s factual findings are “presumed to be correct,” although a habeas petitioner may rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). I n a n appeal of the district court’s denial of habeas relief, “this cou r t reviews the district court’s findings of fact for clear error and its conclusions of law de novo , applying the same standard of review that the district court applied to the state court decision.” Jones v. Cain , 600 F.3d 527, 535 (5th Cir. 201 0). III. DISCUSSION A. Concurrent Sentence Doctrine B efore turning to the merits, we first address the argument of R e s p o n d e nt

Appellee Bur l C ain (“the State”) that this court should decline federal habeas review of Austin’s claim under the concurrent sentence doctrine. The State argues that Aust i n ’ s sentence as to count one (attempted first degree murder)
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was enhanced to life imprisonment without parole, and that even if Austin could prevail on the merits of his double jeopardy claim, the maximum habeas relief available would be the invalidation of his thirty-year s entence with respect to count eight (possession with intent to distribute cocaine). As such, he would still 2

serve a life sentenc e w i t hout the benefit of parole, probation, or suspension of sentence on count one, and a fifty year sentence on count two. We decline to apply the concurrent sentence doctrine in this case. See 13C C H AR L E S ALA N WR I G H T & AR T H U R R. M I L L E R , F E D E RA L P RA C T I C E A N D P R O C E D U R E § 3533.4.2 (3d ed. 2011) (“[T]he [concurrent sentence] doctrine is a matter of appellate discretion, designed to serve the convenience of the courts; it can be put aside wi t h o u t n e e d for further explanation.”). It is true that this court has applied the concurrent sentence doctrine in circumstances similar to the case presently before us. For example, in Williams v. Maggio , 714 F.2d 554, 555-56 (5th Cir. 1983), we affirmed the district court’s application of the doctrine in a habeas action after concluding that no adverse collateral c o n s e quences would result from the unreviewed conviction. We explained:

even assuming t h a t [Williams could prevail on the merits of his claim], the maximum habeas relief avai l ab l e would be the invalidation of one of the sentences, and as the two sentences here are strictly identical in length, it would not matter which one were set aside. Moreover, because Williams was sentenced in ea c h case a s a t h i rd-time offender, he is not eligible either for parole on o r diminution of either sentence.
Id at 556

. This court has, when possible, applied the doctrine “in a manner that

removes t h e a dv erse collateral consequences of the sentence from the d ef e n dant,” and has “adopted the policy of vacating the unreviewed sentence and

See Uni ted States v. Buckley , 586 F.2d 498, 505 (5t h Cir. 1978) (“ [W] here a def enda nt 2 is im pr ope rly convic ted for a les se r inclu ded off ens e, the pr ope r rem edy is to vacateboth the convic tio n [a] nd se nten ce on the inclu ded off ens e, leaving the convic tio n and sente nce on the great er off

ens e i ntac t. ”)

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suspending imposition of that sentence.” United States v. Stovall , 825 F.2d 817, 824 (5th Cir. 1987); see also United States v. Harrelson , 754 F.2d 1182, 1185 (5th Cir. 1985); United States v. Cardona , 650 F.2d 54, 58 (5th Cir. 1981). We have, however , o n l y infrequently applied the concurrent sentence doctrin e i n t h e s t ate habeas context over the past thirty years. See Scott v. Louisiana , 934 F.2d 631, 635 (5th Cir. 1991); Williams , 714 F.2d at 556. In fact,

we are unaware of any decisions in which this court has applied the doctrine to

a state habeas petition after enactment of A EDPA in 1996. Cf. 13C C H AR L E S ALA N WR I G H T & AR T H U R R. M I L L E R , F E D E RA L P RA C T I C E A N D P R O C E D U R E § 3533.4.2 (3d ed

. 2 0 1 1) (“Not many of the cases invoking the doctrine post-date 1987

. . . . B u t the doctrine still is invoked on occasion.”). The State cites one recent decision, Davis v. Thaler , 373 F. App’x 446 (5th Cir. 2010), in support of its concurrent sentence doctrine argument. In that case, however, the district court applied the concurrent sentence doctrine to vacate a sentence for a lesser included offense. The panel granted a COA to determ i n e w h e t her the district court’s application of the doctri n e w a s erroneous. After the state conceded the existence of a clear double jeopardy violatio n , h o wever, the panel declined to consider whether the doctrine was applicable because the petitioner had already “received the maximum habeas relief available when the district court vacated his aggravated assault conviction.” Id. at 450-51. In so holding, the panel raised but de c l i n e d to answer the question of whether “the [concurrent sentence] doctrine is applicable for a state court conviction after AEDPA.” Id. at 450. We also decline to address this issue here. 3

The Sevent h Circ uit has rec entl y app lied the doc tri ne in the st ate habeas cont ext. See 3 Cheek s v. Ga etz , 571 F.3d 680, 689- 90 (7t h Cir. 2009)

. The Nint h Circ u i t , i n c o n t ras t, has aband oned the doctr ine alto gethe r. Uni ted States v. De Bri ght , 730 F.2d 1255, 1259 (9t h Cir. 1984) (en banc) (“We overr ule our pr ior cas es wh ich have autho rized use of the conc urr ent se nten ce doc tri ne. ”)

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B. Double Jeopardy Austin, proceeding pro se , offers few specific arguments in support of his d o ub le jeopardy claim. In essence, he contends that possession with intent to distribute cocaine and attempted first degree murder are the “same offense” for double jeo p a r dy purposes because the attempted first degree murder statute “requires proof of La. R. S. 40:967(A) [cocaine distribution].” He further argues that the state relied upon h is cocaine distribution as a basis for proving attempted f

i r s t d egree murder at trial, and he is being punished twice for the same offense, in violation of the Double Jeopardy Clause. The Louisiana Fifth Circuit Court of Appeal rejected Austi n ’s double jeopardy argument on direct appeal. The court first explained: When proof of a felony is an essential element of an attempted first degree murder, double jeopardy precludes conviction and punishment of the defendant fo r b oth attempted murder and the underlying felony. However, an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the principle of double jeopardy.
Austin , 900 So. 2d at 884 (citations omitted). The court then found that the state “did not specify the subsection of La.R.S. 14:30 with which it intended to proceed in the bill of information, and the tr i al judge charged the jury on subsections La.R.S. 14:30(A)(2), (3), and (6).” Id. Although the jury was not polled as to the particular subsection used to convict Austin, the court reasoned that the “attempted m ur d e r c o nvictions can be upheld if there is sufficient evidence based

on any of th e a l t e r n a tive theories with which the jury was charged.” Id. The court held that there was sufficient evidence to prove that Austin “committed attempted first d e gree murder by specifically intending to kill police officers under La.R.S. 14:30(A)(2).” Id. at 884-85. The court c o n c luded that, “[b]ecause the State proved the attem p t e d first degree murder convictions under La.R.S. 14:30(A)(2) as specific intent crimes, pro o f of possession of cocaine with intent
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to distribute was not an essential element.” Id

. at 885. Therefore, the court found

n o d o ub l e jeopardy violation. In reaching its conclusion, the court cited state authority inter p reting the Double Jeopardy Clause, rather than federal authority. The district court found that the state court’s analys i s di d “ n ot represent an unreasonable application of Supreme Court law to the facts of the instant case.” Austin , 2009 WL 6319555, at *6. For the reasons discu s sed herein, we conclude that the state appellate court’s rejection of Austin’s double jeopardy argument was not unreasonable in its factual or legal conclusions, 28 U.S.C. § 2254(d)(1), (2), and the district court properly denied habeas relief. 1. Background The Doub l e J e o p ardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. C O N S T
. amend. V. This constitutional guarantee is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton , 395 U.S. at 794

. T he Double Jeopardy Clause “protects against a second prosecution for the same offense after ac q u i t t al. It protects against a second prosecution fo r t h e same offense after conviction. And it protects against multiple punishments for the same offense.” Brown v. Ohio , 432 U.S. 161, 165 (1977) (internal quotation marks o mitt e d) (quo tin g N o r t h Carolina v. Pearce , 395 U.S. 711, 717 (1969)). The longstanding test for determining whether two s t atutes constitute the “same offense” for double jeopardy purposes was first developed in Blockburger

v. United States , 284 U.S. 299 (1932). There, the Supreme Court explained that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304. A court applying the Blockburger test must “focus[]

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on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial

o verlap in the proof offered to establish the crimes.” Iannelli v. United St a t e s , 420 U.S. 770, 785 n.17 (1975); see also United States v. Agofsky , 458 F.3d 369, 371 (5th Cir. 2006) (“Under the Blockburger test, each offense must contain an element not contained in the other; if not, they are the same offens e . . . a nd double jeopardy bars sub s e q u e nt punishment or prosecution.”) (internal quotation marks omitted). 2. Analysis of Double Jeopardy Claim Our analysis of Aust i n ’ s double jeopardy claim must begin with the relevant statutes in this case. The version of Louisiana Revised Statute Section 14:30 in effect at the t i m e Au s t in committed his offenses provided for seven alternatives thro u gh w h i ch first degree murder could be established, three of which are relevant here. The statute provided in relevant part as follows:

(A) First degree murder is the killing of a human being:

. . . (2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman, peace officer, or civilian employee of the Louisiana State Police Crime Laboratory or any other forensic laboratory engaged in the performance of his law f u l d uties, or when the s p ecific intent to kill or to inflict great bodily h a r m i s directly rel a t e d to the victim’s status as a fireman, peace officer, or civilian employee. (3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.

. . . (6) When the offender has the specific intent to kill or to inflict great b o dily harm while engaged in the distrib u t ion, exchange, sale, or purchase, or any

11 Case: 10-30342 Document: 00511634377 Page: 11 Date Filed: 10/17/2011No. 10-30342 attempt thereof, of a controlled dangerous substance listed in Schedules I, II, III, IV, or V of the Uniform Controlled Dangerous Substances Law. LA

. R E V
. S TAT
. § 14:30(A)(2), (3), (6) (2003). The offense of possession with intent to distribute cocaine provided: “it shall be unlawful for any person knowingly or intentionally: (1) To produce, manufact u re, distribute, or dispense or possess with intent to produce, manufacture, distribu t e , or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II.” LA

. R E V
. S TAT
. § 40:967(A)(1). Cocaine was listed in Schedule II as a controlled substance at the time of the offense. LA

. R E V
. S TAT
. § 40:964(II)(A)(4). In this case, the state did not s p e cify in the bill of information the subsection under which it brought the six counts o f a t t e m p t ed first degree murder, and evidence exi s t e d to s upport all three grounds noted above. Although the prosecution primarily relied upon the first alternative at trial (intent to kill

a police officer), it did at times argue the third ground (cocaine distribution) to the jury, and the trial court instructed the jury on all three grounds. As the state court recognized, the jury returned only a general verdict and was not polled as to which of the three grounds furnished the basis of the attempted first degree murder convictions. The S t a t e argues at length that Austin’s attempted first degree murder charges were based solely on Section 14:30(A)(2) (intent to kill or inflict great bo d ily harm on police officers), and not at all upon Section 14:30(A)(6). While we agree with the State that the record tends to support this position, we cannot entirely rule out the possibility that subsection six was an

4

For exam ple , in his ope ning st atem ent, the pr os ecut or sai d, “at the conc lus ion of this 4
cas e, we’r e cer tain that the State of Louisian a wi ll st and before you and ask you to find Noe l Aust in guilty of six count s of att em pt ed mur der of pol ice off icer s, as we ll as guilty as char ged of pos s e s s i o n w i t h the inte nt to dis tribute a ki logram of coc aine. ” A sim ilar st atem ent wa s mad e dur ing clos ing argum ent, wh ere the pr os ecut or expla ined : “[Aust in is] char ged wi th six count s of att em pt ing to com mi t fir st degr ee mur der by at t e mp ting to ki ll a num ber of law enf orc em ent of

fic ers , and he’s charged with one countof pos se ss ing wit h intentto dis tribute coc aine. ” In his conc lus ion, the pr os ecut or argued , “[h]e too k st eps to ki ll six peo ple wh o we re 12 Case: 10-30342 Document: 00511634377 Page: 12 Date Filed: 10/17/2011No. 10-30342

additional basis for the prosecution and verdict. More importantly, our purpose 5 h e r e i s not to make an independent assessment of the record, but instead to determine the reasonableness of the state court’s decision. 28 U.S.C. § 2254(d). As noted above, the state court found that there was sufficient evidence to prove attempted first degree murder under Section 14:30(A)(2), and that the state did in fact prove that subsection. The court did not conclude that Austin’s attempted first degree murder charges were based solely on Section 14:30(A)(2), but rather only that p r o o f of possession of cocaine with intent to distribute “was not an essential element” of the murder conviction s . 900 So. 2d at 885. We do not believe these findings to be “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Based on these factual determinations, we now must address whether the state court’s resolution of Austin’s double jeopardy claim is objectively unreasonable in light of clearly established federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1); Renico , 130 S. Ct. at 1862. The most relevant Supreme Court decision in the context of this case is Illinois v. Vita le , 447 U.S. 410 (1980), abrogated on other grounds by United

out the re toprot ectand def end th e peop le of our par ish

. That’ s wh y it ’s firs t degr ee mur der , beca use it’ s an a t t e m p t t o ki ll pol ice off icer s. . . . Ladie s and gentle me n, we have pr oved beyond a reas onable doub t that this De fen dant

. . . a tte mp ted to ki ll six pol ice off icer s, and thathep os se ss ed wi th an i nten t to dis tributec ocai ne. ”
Not ably, the pr os ecut or’ s st atem ent dur ing clos ing argum ent lis ted all thr ee pos sib le 5 bas es f or an a tte mp tedf

irs t degr ee mur derc onvict ion: [I]n ord er to pr ove the De fen dant guilty of att em pt ed f i rs t degr ee mur der , we have to pr ove thathe intend ed tokilllaw enforc em ent of fic ers , or he int ende d to ki ll mo re than one per so n, or that he wa s engaged in the dis tributio n or att em pt ed dis tributio n of a cont roll ed danger ous sub st ance and inte nded to ki ll so me one, andt ooka st ep in fur ther anceof t hat inte nt.

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States v. Dixon , 509 U.S. 688, 704 (1993). There, the petitioner had accidentally 6 struck and killed tw o c h i ldren while driving his vehicle, and was cited at the

scene for failure to reduce speed. One child died at the scene of the accident, and the other child d i ed the next day. Approximately one month later, Vitale
ap p e a r e d in court, pled not guilty to the charge of failure to reduce speed, and

was found guilty after a short bench trial. The day after his conviction, Vitale

was charged with involuntary manslaughter, based upon the same incident. Id. at 412-13. O n appeal, the Supreme Court addressed whether the Double Jeopardy Clause prohibited Illinois from prosecuting Vitale for involuntary manslaughter, after he had previously been convicted of failing to reduce speed. Id. at 411. The Court began its analysis by considering “whether the offense of failing to reduce speed to avoid an accident is the ‘ s a m e o f f e nse’ for double jeopardy purposes as the manslaughter charges” at issue. Id. at 415-16. The Court explained:

In Uni ted States v. Dixon , 509 U. S. 688 (199 3), the Sup rem e Court overr uled its pr ior 6 dec isi on in Grady v. Cor bin , 495 U. S. 508(1990) , wh ich had heldthat “th e D oubleJe opa rdy Claus e bars a sub se quent pr os ecut ion if, to es tabl ish an es se ntial elem ent of an off ens e char ged in that pr os ecut ion, the governm ent wi ll prove condu ct that cons tit utes an off ens e for
w hich the def

enda nt has alre ady been pr os ecut ed. ” 495 U. S. at 510 (em phas is ad d e d)

. T h e Grady Court reli ed in par t upon the earl ier “s uggest ion” in Vi tale that “even if tw o suc ces sive pr os ecut ions we re not barr ed by the Bloc kburge r tes t, the se cond pr os ecut ion wo uld be barr ed if the pr os ecut ion so ught to es tabl ish an es se ntial elem ent of the se cond cri me by pr oving the cond uct for wh ich the def enda nt wa s convic ted in the fir st pr os ecut ion. ” Id. In Dixon , the Court fou nd that the Grady “s ame -c ondu ct” tes t lack ed “co nst itut ional roo ts ,” and wa s “w holly inco nsi st ent wi th earl ier Sup rem e Court pr ece dent and wi th t h e c lear com mo n-la w unde rs tand ing o f d o uble jeop ardy.” 509 U. S. at 704. Vi tale ’s dic ta ther efo re wa s ado pt ed in Grady , but thenexp res sly rejec tedin Dixon . At the sam e tim e, how e v e r , t he Sup rem e Court mad e clea r in Dixon that “ Vi tale unques tio nably read s Ha rri s[ v. Oklahom a , 433 U. S. 682 (197 7)] as mere ly an app lica tio n of the doub le jeop ardy bar to les se r and great er inclu ded o f f e n s e s. ” Id. at 707. The Court als o rejec ted the content ion that Vi tale in fac t ado pt ed a “s ame cond uct” tes t. Id. (“Jus tic e Sout er ins t e a d elevat es the st atem ent in Vi tale that , on cer tain hypot heti cal fac ts , the pet itio ner wo uld have a ‘s ubs tant ial’ ‘cl aim ’ of doub le jeop ardy on a Grady -t ype theo ry . . . into a hol ding that the pet itio ner wo uld wi n o n t hat theo ry. . . . No Jus tic e, the Vi tale dis se nter s inclu ded , has e v er cons tru ed this pas sage as ans we ring, rat her than sim ply rais ing, the ques tio n on wh ich wela tergra ntedc ert iora ri in Grady .” ). 14 Case: 10-30342 Document: 00511634377 Page: 14 Date Filed: 10/17/2011No. 10-30342

[I]f man s l a u gh t er by automobile does not always entail proof of a f ailure to slow, then the two offenses are not the ‘same’ unde r t h e Blockburger test. The mere possibility that the State will seek to rely on all of th e i ngredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.
Id. at 419 (emphasis added). The Court then instructed, “[i] f, as a matter of I l l i n o i s l aw, a careless failure to slow is always a necessary element of manslaughter b y a utomobile, then the two offenses are the ‘same’ under Blockburger and Vitale’ s trial on the latter charge would constitute double jeopardy under Brown v. Ohio [432 U.S. at 1 6 1 ]

. ” I d. at 419-20 (emphasis added). The Court then remanded the case to allow the state court to determine

7 the relationship betw e en the offenses of failure to slow and vehicular manslaughter under Illinois law. In its opinion, the Vitale Court discussed its earlier holding in Brown that

a conviction fo r a l e s s er - inclu d e d offense precludes later prosecution for a greater offense. The Court explained that a double jeopardy violation existed in Brown because the defendant had been convicted of joyriding (taking a vehicle without

We rec ognize that Vi tale involved suc ces sive pr os ecut ions , wh ile the cas e bef ore us 7 involves pot enti al mul tip le puni shm ents aft er o n e pr os ecut ion. Never thel es s, the Do uble Jeop ardy Claus e has the sam e me aning in both cont exts

. In Dixon , the Sup rem e Court rejec ted Jus tic e Sout er’ s att em pt to dis tinguis h betw een the “s ucc es sive pr os ecut ion” and “s ucc es sive puni shm ent” app lica tio n of the Claus e . 509 U. S. at 704. Rather , the court expla ined , “[w] e have oft en note d that the Claus e se rves the func tio n of pr event ing both suc ces sive puni shm ent and suc ces sivep ros ecut ion, butt hereis noaut hori ty, exc ept Grady , fort he pr opo sit ion that it has d iff

ere nt me aningsint he tw o c onte xts

. That is perhaps beca use it is em barr ass ing t o ass ert that the sin gle ter m ‘s ame off ence ’ (t he wo rd s of the F i f th Ame ndm ent at iss ue here) has tw o dif

fer ent me anings—t hat wh at is the sam e off e nse is yet not the sam e off ens e.” Id. (c itat ion om itt ed)

. The Sup rem e Court has als o rec ognized that , “[i]f tw o off ens es are the sam e unde r [Bloc kburge r] for pur pos es of barring cons ecut ive se nten ces at a s i n gl e tri al, they nece ss aril y wi ll be the sam e for pur pos es of barr ing suc ces sive pr os ecut ions

. Wher e the judge is forbidd en to im pos e cum ulative puni shm ent for tw o cri me s at the end of a sin gle pr oce edi ng, the pr os ecut or is forbidd en to st rive for the sam e res ult in suc ces sive pr oce edi ngs. ” Brow n , 432 U. S. at 166 (c itat ions om itt ed)

. There for e, the rele vant ques tio n is wh ethe r in fac t tw o off ens es are the “s ame ” unde r Bloc kburge r , regar dle ss of wh ethe r the ques tio n aris es in a mul tip le pr os ecut ion or mul tip le puni shm ent cont ext. 15 Case: 10-30342 Document: 00511634377 Page: 15 Date Filed: 10/17/2011No. 10-30342

the owner’s consent) as well as auto theft, and “[t]he Ohio courts had held that every element of the joyriding is also an element of the crime of auto theft.” Id. at 417 (internal quotation marks omitted). It was therefore not possible to prove auto theft without also proving joyriding. The Vitale Court noted, however, that if the prosecution in Brown had b e e n “able to prove auto theft, without also proving that the defendant took, operated, or kept the auto without the consent of the ow n e r

—if p roof of the auto theft had not necessarily involved proof of joyriding

—the successive pro s e cutio n s woul d no t h ave b e e n f or the ‘same offense’ within the meaning of the Double Jeopardy Clause.” Id. (emphasis added). Even prior to Vitale , the Supreme Court had focused upon the essential or necessary elements of separate offenses to determine if they were in fact the “same” for double jeopardy purposes. In Harris v. Oklahoma , 433 U.S. 682 (1977), the petitioner was first convicted of felony murder after shooting a store clerk during a robbery, and later convicted on the separate c h a r ge of robbery with firearms based upon the same incident. The petitioner objected on double jeopardy grounds, as robbery was the only lesser-included offense that could have served as the predicate for the felony murder charge. The Supreme Court reversed the conviction for the lesser offense, a n d e xplained, “[w]hen, as here, conviction of a greater crime, murder, cannot b e had without conviction of the lesser crime, robbery with firear m s, the Double Jeopardy Clause bars prosecution for the lesser crime, after conviction of the greater one.” Id. at 682 (emphasis added). Three years after Harris , the Supreme Court decided Whalen

v. United States , 445 U.S. 684 (1 9 8 0 )

. I n that case, the petitioner had been

c o nvi c t e d in the Superior Court of the District of Columbia for rape and fo r killing the same victim in the perpetration of the rape. The petitioner received

c o n s e cutive s e nt ences for each conviction. On appeal, the Supreme Court applied Blockburger in concluding that rape and a killing committed in the course of a
rape constitute the “same offense,” since “[a] conviction for killing in the course
16 Case: 10-30342 Document: 00511634377 Page: 16 Date Filed: 10/17/2011No. 10-30342

of a rape cannot be had without proving all the elements of the offense of rape.” Id. at 693-94. The government had argued that felony murder and rape were not the “same” offense under Blockburger , because the former offense did not in all

c ases require proof of rape, but rather the statute “proscribe[d] [the] k i l l i n g another person in the course of committing rape or robbery or kidnaping or arson, etc.” Id. at 694. The Court rejected this argument, and explained: Where the offense to be proved does not include proof of a rape—for example, where the offense is a killing in the perpetration of a robbery—the offense is of course different from the offense of rape, and the Government is correct i n b elieving that cumulative punishments for the felony murder and for a r a p e would be permitted under Blockburger

. In the present case, however, proof of rape is a necessary element ofproof of the felony murder, and we are unpersuaded that this case should be treated differently from other cases in which one criminal offense requires proof of every element of another offense.
Id. (emphasis added). This court has applie d V i t a le on multiple occasions, primarily in the context of felony-murder prosecutions. In Sekou v. Blackburn , 796 F.2d 108 (5th 8 C i r . 1986), the court addressed whether a conviction for armed robbery an d a subsequent p l e a t o felony murder violated the Double Jeopardy Clause, when the criminal activity underlying the felony murde r ch ar ge included a kidnapping in addition to the armed robbery. Id. at 109. The court h e l d t h a t “the Double Jeopardy Clause does not bar successive prosecutions for felony-murder and an underlying felony (regardless of which prosecution is first), so long as the specific underlying felony which is the subject of the earlier (or later) prosecution does not form the sole basis for the felony-murder prosecution.” Id. (emphasis added). In doing so, the court distinguished Harris and Brown , and relied upon Vitale

.

Louis iana’ s fel ony mur der st atut e is not at iss ue here

. Louis iana’ s fel ony mur der 8 st atut e is cod ifi ed at LA

. R EV

. S TAT

. § 14:3 0(A) (1) , and Aust in wa s not char ged unde r this pr ovis ion. 17 Case: 10-30342 Document: 00511634377 Page: 17 Date Filed: 10/17/2011No. 10-30342

The court explained, “in the pre s e n t a p p e al, if the state could have proved felony-murder without also proving armed robbery, t h e n the successive
p r o s e cutions do not constitute prosecutions for the ‘same offense’ within the meaning of the D o ub l e J e o pardy Clause.” Id. at 111 (citing Vitale , 447 U.S. at 417). The court cautioned, however, that “once the state tried and convicted Sekou for armed robbery, it was barred from prosecuting him for felony-murder only if the sole underlying felony upon which that prosecution was based was the armed robbery.” Id. (emphasis added). T h e court then examined whether the state had “bound itself to proving only armed robbery” at the defendant’s felonymurder trial. The court found “absolutely no indication that the state intended to prove only the armed robbery as the basis for a felony-murder conviction,” as the “state just as e a s i l y c o u ld have proven the kidnapping as the underlying felony.” Id. In a footnote, the court noted that “the government may have put on evidence of both the kidnapping and the armed robbery since both those crimes

were part of the course of criminal activity le a d i ng to the murder. We read nothing in Vitale which would have prevented the government f ro m proving both the kidnapping and the armed robbery if Sekou had gone to trial on the felonymurder charge.” Id. at 111 n.3. The court thus rejected Sekou’s double jeopardy argument. Id. at 111-12. In contrast, we found a double jeopardy violation in Neville v. Butler , 867 F.2d 886 (5th Cir. 1989). We first restated that the Double Jeopardy Clause does not require invalidation of “convictions of both felony m u r d e r and a felony arising out of the same oc c u r r e n c e where it is shown that another separate felony could have served as the predicate offense underlying the felony murder conviction.” Id. at 889 (emphasis add e d) (citing Sekou , 796 F.2d at 111). We ultimately found a double jeopardy violation, however, because “petitioner was convicted of both armed robbery and attempted felony murder predicated on the same armed robbery offense.” Id. at 890-91.

18 Case: 10-30342 Document: 00511634377 Page: 18 Date Filed: 10/17/2011No. 10-30342

Taken together, Vitale , Sekou , and Neville demonstrate that two offenses

are the “same” under Blockburger only if one offense is “always a necessary elem e n t” o f a n other offense. Vitale , 447 U.S. at 419; Sekou , 796 F.2d at 111; N e v i l le , 867 F.2d at 889. In contrast, where an offense constitutes only one o f several alternative elements of another offense, the two are not the “same offense” for double jeopardy p u rposes. As applied here, we conclude that no double jeopardy violation occurred in Austin’s case. It is clear that the l e s s e r offense (possession with intent to distribute cocaine) is not “always a necessary
e l e m e nt” of the greater offense (first degree murder) under Louisiana law. V i ta le , 447 U.S. at 419. Put another way, first degree murder does not “always entail proof” of possession with intent to distribute cocaine. Id. Rather, at the time of Austin’s off

e n s e , f irst degree murder could be proven in seven different ways, three of which are directly at issue here. Moreover, we need not speculate as to the specific grounds the state used to prove attempted first degree murder. The prosecution was based on three alternatives, namely that Austin had a specific intent to kill or to inflict great b o d i ly harm (1) upon a police officer, (2) upon
more than one person, or (3) while engaged in cocaine distribution. LA

. R E V
. S TAT
. § 14.30(A)(2), (3), (6). The state appellate court on direct review reasonably

c o n c l u d e d t hat the state sought to prove (and did in fact prove) specific inten t murder of police officers under subsection (A)(2), as a constitutionally valid basis for the attempted first degree murder c h a rge. Austin , 900 So. 2d at 884-85; 28 U.S.C. § 2254(d)(2). Cocaine distribution was therefore not a necessary element 9 of Austin’s attempted first degree murder charge.

The st ate cour t’s det erm inati on is sup por ted by the fac t that the jury convic ted Aust in 9 of only tw o of the six count s o f a t t e m pt ed fir st degr ee mur der (of Agents Da nny Jew ell and Mic hael Pizzolat o). This st rongly sugges ts that sub se cti on (A) ( 2) (m urd er of pol ice off icer s) , and perhaps (A) (3) (int ent to ki ll mo re than one per so n) pr ovide d the pr im ary bas es for the verd ict

. If the jury had in fac t reli ed upon sub se cti on (A) (6) (c ocai ne dis tributio n), ther e wo uld have been litt le reas on for it to dif fer enti ate betw een the victi ms , as Aust in’s coc aine dis tributio n w as ongoing thr oughoutt he incid ent, andno t sp ecif ic to par tic ular victi ms . 19 Case: 10-30342 Document: 00511634377 Page: 19 Date Filed: 10/17/2011No. 10-30342

The Louisiana Fifth Circuit Court of Appeal correctly recognized and applied the principl e s t h at we have detailed above, even though it did not directly cite federal authority. The court instead reli e d up o n Lo ui s i an a p r e c e d e nt that interpreted the Double Jeopardy Clau s e of the Fifth Amendment, the analogous provision of the Lo ui s i an a C o n s titutio n , an d r el evant S up r e m e Court 1 0 precedent. Austin , 900 So. 2d at 884-85 (c iting State v. Brown , 6 9 4 S o . 2d 435, 437 (La. App. 5 Cir. 2005); State v. Barton , 857 So. 2d 1189, 1201 (La. App. 5 Cir. 2003); State v. Jackson , 767 So. 2d 848, 853 (L a . Ap p . 5 C ir. 2000)). We have explained that “a federal habeas court is authorized by Section 2254(d) to review only a state c o urt’s ‘decision,’ and not the written opinion explaining that decision.” Neal v. Puckett , 286 F.3d 230, 246 (5th Cir. 2002) (en banc). Further, “our focu s o n the ‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached,” and “the only question for a federal habeas court is whether the state court’s determination is objectively unreasonable.” Id

. (emphasis added); see also Santellan v. Cockrell , 271 F.3d 190, 193 (5th Cir. 2001) (“[AEDPA] compels federal courts to review for reasonableness the s t ate court’s ultimate decision, not every jot of its reasoning.”). The state court properly concluded that no double jeopa r dy violation occurred because there was sufficient evidence to support the attempted first degree murder convictions based upon Austin’s intent to kill police officers, and “proof of possession of cocaine with intent to distribute was not an essential element.” Austin , 900 So. 2d at 885. In sum, we hold that the Louisiana Fifth Circuit Court of Appeal’s decision regarding Austin’s double jeopardy claim was neither contrary to, nor involved

an unreasonable application of, c l e a r l y established federal law, as determined

Arti cle 1, Sec tio n 15 of the Louis iana Cons tit utio n of 1974 pr ovide s, “[ n]o per so n sha ll 1 0 be tw ice plac ed in jeop ardy for the sam e off ens e, excep t on his app lica tio n for a new tri al, wh en a m ist rialis d ecla red , or wh en a m oti on in a rre stof jud gmen t is sus taine d. ” LA

. C ON ST

. art

. 1, § 1 5. 20 Case: 10-30342 Document: 00511634377 Page: 20 Date Filed: 10/17/2011No. 10-30342

by the Supr e m e Court. The decision also did not involve “an unreasonable determination of the facts in light of the evidence presente d in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The district court properly denied Austin’s petition for a writ of habeas corpus. IV. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court.

21 Case: 10-30342 Document: 00511634377 Page: 21 Date Filed: 10/17/2011