IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Noel Austin was arrested in a

sting operation after attempting 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 four concurrent terms of

imprisonment. The court later imposed a life sentence on the first count of

attempted first degree murder due to Austin’s status as a habitual offender.

Austin’s conviction was affirmed on direct appeal, and state habeas relief was

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2011

Lyle W. Cayce

Clerk

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denied. He subsequently filed a petition 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 the

Fifth Amendment. The district court denied relief. We granted a certificate of

appealability as to Austin’s double jeopardy claim only. We affirm the district

court’s judgment denying Austin’s habeas corpus petition. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of April 11, 2003, law enforcement officers with the

Louisiana State Police Gulf Coast High Intensity Drug-Trafficking task 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-Appellant Noel Austin (“Austin”)for $21,500.

Several members of the Jefferson Parish Sheriff’s Office assisted the state police

in this operation. 

On the night in question, Austin arrived 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

to arrange the details of the purchase. After leaving the restaurant, Simmons

returned to his car, while Austin and the confidential informant walked over to

Austin’s parked vehicle. The informant soon confirmed that Austin had the

cocaine in his possession, and communicated this to Agent Simmons. Simmons

relayed 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 out of the way. Austin then collided

with an undercover vehicle, but kept driving. One officer fired at Austin’s vehicle

as it swerved and narrowly missed a fellow officer. Three other officers then

stood in front of the vehicle and repeatedly ordered Austin to stop. Austin did not

heed their warning, 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 it 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 information against Austin, charging him with six counts of

attempted first degree murder in violation of LA. REV. STAT. § 14:27 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.REV.STAT. § 40:967(F) (count seven), and one count of possession

with intent to distribute cocaine in violation of LA.REV.STAT. § 40:967(A) (count

eight). Importantly, the six counts of attempted first degree murder did not

specify which of the applicable statutory circumstances under Section 14:30(A) 

(specific intent to 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 dismissed count seven, but went to trial on the

remaining counts.

Austin was found guilty on counts one, two, and eight, and guilty of the

responsive verdict of aggravated battery on count five. On March 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. REV. STAT. § 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 for attempted 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

imprisonment without parole, probation, or suspension of sentence, to run

concurrently with the sentences on the other counts. 

Austin’s sentences were affirmed on direct appeal, and his petition for

state habeas relief was denied. See State v. Austin, 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 corpus). 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 assistance 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. Austin v. Cain, No. 07-9362, 2009

WL 6319555 (E.D. La. Oct. 16, 2009). The district court adopted this

recommendation over Austin’s objections, 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 based upon his

conviction and sentence for both possession with intent to distribute cocaine

underLA.REV.STAT.§ 40:967(A)(1) and attempted first degree murder under LA.

REV. STAT. § 14:30, where the attempted first degree murder conviction could

have been based on a specific intent to kill or inflict great bodily harm upon a

person while engaged in the distribution of cocaine, as provided by LA. REV.

STAT. § 14:30(A)(6).1

II. STANDARD OF REVIEW

This habeas proceeding is subject to the Antiterrorism and Effective 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

petitioner habeas relief on a claim that was adjudicated on the merits by the

state court unless the state court 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

the Supreme Court,” “refers to the holdings, as opposed to the dicta, of [the

Although Austin was sentenced to concurrent rather than consecutive prison terms,

1

concurrent sentences may still constitute “multiple punishments” for double jeopardy

purposes. See Ball v. United States, 470 U.S. 856, 864-65 (1985) (“The second conviction, whose

concomitant sentence is served concurrently, does not evaporate simply because of the

concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has

potential adverse collateral consequences that may not be ignored.”); United States v. Britt,

112 F. App’x 352, 357 (5th Cir. 2004) (“The Supreme Court [in Ball] has clearly stated that

even concurrent sentences can comprise multiple punishments violative of the Double

Jeopardy Clause.”).

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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 that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously

or incorrectly. Rather, that application must be objectively unreasonable. . . .

AEDPA thus imposes a highly deferential standard for evaluating 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) (citations and

internal quotation marks omitted). The decision of a state court is “deemed

contrary to clearly established federal law if it reaches a legal conclusion in

direct conflict with a prior decision of the Supreme Court or if it reaches a

different 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).

In an appeal of the district court’s denial of habeas relief, “this court

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. 2010).

III. DISCUSSION

A. Concurrent Sentence Doctrine

Before turning to the merits, we first address the argument of RespondentAppellee Burl Cain (“the State”) that this court should decline federal habeas

review of Austin’s claim under the concurrent sentence doctrine. The State

argues that Austin’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 sentence with respect to

count eight (possession with intent to distribute cocaine). As such, he would still 2

serve a life sentence without 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

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 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 without need 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 consequences

would result from the unreviewed conviction. We explained:

even assuming that [Williams could prevail on the merits of his

claim], the maximum habeas relief available 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 each case

as a third-time offender, he is not eligible either for parole on or

diminution of either sentence. 

Id at 556. This court has, when possible, applied the doctrine “in a manner that

removes the adverse collateral consequences of the sentence from the

defendant,” and has “adopted the policy of vacating the unreviewed sentence and

See United States v. Buckley, 586 F.2d 498, 505 (5th Cir. 1978) (“[W]here a defendant 2

is improperly convicted for a lesser included offense, the proper remedy is to vacate both the

conviction [a]nd sentence on the included offense, leaving the conviction and sentence on the

greater offense intact.”).

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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, only infrequently applied the concurrent sentence

doctrine in the state 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 AEDPA in 1996. Cf. 13C CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §

3533.4.2 (3d ed. 2011) (“Not many of the cases invoking the doctrine post-date

1987 . . . . But 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 determine whether the district

court’s application of the doctrine was erroneous. After the state conceded the

existence of a clear double jeopardy violation, however, 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 declined 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 Seventh Circuit has recently applied the doctrine in the state habeas context. See 3

Cheeks v. Gaetz, 571 F.3d 680, 689-90 (7th Cir. 2009). The Ninth Circuit, in contrast, has

abandoned the doctrine altogether. United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.

1984) (en banc) (“We overrule our prior cases which have authorized use of the concurrent

sentence doctrine.”).

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B. Double Jeopardy

Austin, proceeding pro se, offers few specific arguments in support of his

double jeopardy claim. In essence, he contends that possession with intent to

distribute cocaine and attempted first degree murder are the “same offense” for

double jeopardy 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 his cocaine distribution as a basis for proving

attempted first degree 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 Austin’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 for both 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 trial 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 murder convictions can be upheld if there is sufficient evidence based

on any of the alternative theories with which the jury was charged.” Id. The

court held that there was sufficient evidence to prove that Austin “committed

attempted first degree murder by specifically intending to kill police officers

under La.R.S. 14:30(A)(2).” Id. at 884-85. The court concluded that, “[b]ecause

the State proved the attempted first degree murder convictions under La.R.S.

14:30(A)(2) as specific intent crimes, proof of possession of cocaine with intent

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to distribute was not an essential element.” Id. at 885. Therefore, the court found

no double jeopardy violation. In reaching its conclusion, the court cited state

authority interpreting the Double Jeopardy Clause, rather than federal

authority. The district court found that the state court’s analysis did “not

represent an unreasonable application of Supreme Court law to the facts of the

instant case.” Austin, 2009 WL 6319555, at *6. 

For the reasons discussed 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 Double Jeopardy 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. CONST. 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. The Double Jeopardy Clause “protects against a second

prosecution for the same offense after acquittal. It protects against a second

prosecution for the 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 omitted)(quoting North Carolina v. Pearce, 395

U.S. 711, 717 (1969)).

The longstanding test for determining whether two statutes 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

overlap in the proof offered to establish the crimes.” Iannelli v. United States,

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 offense . . . and

double jeopardy bars subsequent punishment or prosecution.”) (internal

quotation marks omitted).

2. Analysis of Double Jeopardy Claim

Our analysis of Austin’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 time Austin committed his offenses provided for seven

alternatives through which 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 lawful duties, or when the

specific intent to kill or to inflict great bodily harm is

directly related 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 bodily harm while engaged in the

distribution, exchange, sale, or purchase, or any

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attempt thereof, of a controlled dangerous substance

listed in Schedules I, II, III, IV, or V of the Uniform

Controlled Dangerous Substances Law.

LA. REV.STAT. § 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, manufacture, distribute, or dispense or possess

with intent to produce, manufacture, distribute, or dispense, a controlled

dangerous substance or controlled substance analogue classified in Schedule II.”

LA. REV. STAT. § 40:967(A)(1). Cocaine was listed in Schedule II as a controlled

substance at the time of the offense. LA. REV. STAT. § 40:964(II)(A)(4).

In this case, the state did not specify in the bill of information the

subsection under which it brought the six counts of attempted first degree

murder, and evidence existed to support 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 State 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 bodily 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 example, in his opening statement, the prosecutor said, “at the conclusion of this 4

case, we’re certain that the State of Louisiana will stand before you and ask you to find Noel

Austin guilty of six counts of attempted murder of police officers, as well as guilty as charged

of possession with the intent to distribute a kilogram of cocaine.” A similar statement was

made during closing argument, where the prosecutor explained: “[Austin is] charged with six

counts of attempting to commit first degree murder by attempting to kill a number of law

enforcement officers, and he’s charged with one count of possessing with intent to distribute

cocaine.” In his conclusion, the prosecutor argued, “[h]e took steps to kill six people who were

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additional basis for the prosecution and verdict. More importantly, our purpose 5

here is 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 proof of possession of cocaine with intent to distribute “was not an

essential element” of the murder convictions. 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. Vitale, 447 U.S. 410 (1980), abrogated on other grounds by United

out there to protect and defend the people of our parish. That’s why it’s first degree murder,

because it’s an attempt to kill police officers. . . . Ladies and gentlemen, we have proved

beyond a reasonable doubt that this Defendant . . . attempted to kill six police officers, and

that he possessed with an intent to distribute cocaine.” 

Notably, the prosecutor’s statement during closing argument listed all three possible 5

bases for an attempted first degree murder conviction:

[I]n order to prove the Defendant guilty of attempted first degree murder, we

have to prove that he intended to kill law enforcement officers, or he intended

to kill more than one person, or that he was engaged in the distribution or

attempted distribution of a controlled dangerous substance and intended to kill

someone, and took a step in furtherance of that intent.

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States v. Dixon, 509 U.S. 688, 704 (1993). There, the petitioner had accidentally 6

struck and killed two children 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 died the next day. Approximately one month later, Vitale

appeared 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. On 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 ‘same offense’ for double

jeopardy purposes as the manslaughter charges” at issue. Id. at 415-16. The

Court explained:

In United States v. Dixon, 509 U.S. 688 (1993), the Supreme Court overruled its prior 6

decision in Grady v. Corbin, 495 U.S. 508 (1990), which had held that “the Double Jeopardy

Clause bars a subsequent prosecution if, to establish an essential element of an offense

charged in that prosecution, the government will prove conduct that constitutes an offense for

which the defendant has already been prosecuted.” 495 U.S. at 510 (emphasis added). The

Grady Court relied in part upon the earlier “suggestion” in Vitale that “even if two successive

prosecutions were not barred by the Blockburger test, the second prosecution would be barred

if the prosecution sought to establish an essential element of the second crime by proving the

conductfor which the defendant was convicted in the first prosecution.” Id. In Dixon, the Court

found that the Grady “same-conduct” test lacked “constitutional roots,” and was “wholly

inconsistent with earlier Supreme Court precedent and with the clear common-law

understanding of double jeopardy.” 509 U.S. at 704. Vitale’s dicta therefore was adopted in

Grady, but then expressly rejected in Dixon.

At the same time, however, the Supreme Court made clear in Dixon that “Vitale

unquestionably reads Harris [v. Oklahoma, 433 U.S. 682 (1977)] as merely an application of

the double jeopardy bar to lesser and greater included offenses.” Id. at 707. The Court also

rejected the contention that Vitale in fact adopted a “same conduct” test. Id. (“Justice Souter

instead elevates the statement in Vitale that, on certain hypothetical facts, the petitioner

would have a ‘substantial’ ‘claim’ of double jeopardy on a Grady-type theory . . . into a holding

that the petitioner would win on that theory. . . . No Justice, the Vitale dissenters included,

has ever construed this passage as answering, rather than simply raising, the question on

which we later granted certiorari in Grady.”).

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[I]f manslaughter by automobile does not always entail proof of a

failure to slow, then the two offenses are not the ‘same’ under the

Blockburger test. The mere possibility that the State will seek to

rely on all of the ingredients 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

Illinois law, a careless failure to slow is always a necessary element of

manslaughter by automobile, 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 161].” Id. at 419-20 (emphasis

added). The Court then remanded the case to allow the state court to determine 7

the relationship between 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 for a lesser-included 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 recognize that Vitale involved successive prosecutions, while the case before us 7

involves potential multiple punishments after one prosecution. Nevertheless, the Double

Jeopardy Clause has the same meaning in both contexts. In Dixon, the Supreme Court rejected

Justice Souter’s attempt to distinguish between the “successive prosecution” and “successive

punishment” application of the Clause. 509 U.S. at 704. Rather, the court explained, “[w]e

have often noted thatthe Clause serves the function of preventing both successive punishment

and successive prosecution, but there is no authority, except Grady, for the proposition that

it has different meanings in the two contexts. That is perhaps because it is embarrassing to

assert that the single term ‘same offence’ (the words of the Fifth Amendment at issue here)

has two different meanings—that what is the same offense is yet not the same offense.” Id. 

(citation omitted). The Supreme Court has also recognized that, “[i]ftwo offenses are the same

under [Blockburger] for purposes of barring consecutive sentences at a single trial, they

necessarily will be the same for purposes of barring successive prosecutions. Where the judge

is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding,

the prosecutor is forbidden to strive for the same result in successive proceedings.” Brown, 432

U.S. at 166 (citations omitted). Therefore, the relevant question is whether in fact two offenses

are the “same” under Blockburger, regardless of whether the question arises in a multiple

prosecution or multiple punishment context.

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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 been “able to prove auto theft, without also

proving that the defendant took, operated, or kept the auto without the consent

of the owner—if proof of the auto theft had not necessarily involved proof of

joyriding—the successive prosecutionswould nothave been for 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 charge 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, and explained, “[w]hen, as here,

conviction of a greater crime, murder, cannot be had without conviction of the

lesser crime, robbery with firearms, 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 (1980). In that case, the petitioner had been

convicted in the Superior Court of the District of Columbia for rape and for

killing the same victim in the perpetration of the rape. The petitioner received

consecutive sentences 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

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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

cases require proof of rape, but rather the statute “proscribe[d] [the] killing

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 in believing that cumulative

punishments for the felony murder and for a rape would be

permitted under Blockburger. In the present case, however, proof of

rape is a necessary element of proof 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 applied Vitale on multiple occasions, primarily in the

context of felony-murder prosecutions. In Sekou v. Blackburn, 796 F.2d 108 (5th 8

Cir. 1986), the court addressed whether a conviction for armed robbery and a

subsequent plea to felony murder violated the Double Jeopardy Clause, when

the criminal activity underlying the felony murder charge included a kidnapping

in addition to the armed robbery. Id. at 109. The court held that “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.

Louisiana’s felony murder statute is not at issue here. Louisiana’s felony murder 8

statute is codified at LA. REV. STAT. § 14:30(A)(1), and Austin was not charged under this

provision.

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The court explained, “in the present appeal, if the state could have proved

felony-murder without also proving armed robbery, then the successive

prosecutions do not constitute prosecutions for the ‘same offense’ within the

meaning of the Double Jeopardy 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). The 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 easily could 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 leading to the murder. We read

nothing in Vitale which would have prevented the governmentfrom 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 murder and a felony

arising out of the same occurrence where it is shown that another separate

felony could have served as the predicate offense underlying the felony murder

conviction.” Id. at 889 (emphasis added) (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. 

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

are the “same” under Blockburger only if one offense is “always a necessary

element” of another offense. Vitale, 447 U.S. at 419; Sekou, 796 F.2d at 111;

Neville, 867 F.2d at 889. In contrast, where an offense constitutes only one of

several alternative elements of another offense, the two are not the “same

offense” for double jeopardy purposes. As applied here, we conclude that no

double jeopardy violation occurred in Austin’s case. It is clear that the lesser

offense (possession with intent to distribute cocaine) is not “always a necessary

element” ofthe greater offense (first degree murder) under Louisiana law. Vitale,

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 offense, first 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 bodily harm (1) upon a police officer, (2) upon

more than one person, or (3) while engaged in cocaine distribution. LA. REV.

STAT.§ 14.30(A)(2), (3), (6). The state appellate court on direct review reasonably

concluded that the state sought to prove (and did in fact prove) specific intent

murder of police officers under subsection (A)(2), as a constitutionally valid basis

for the attempted first degree murder charge. 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 state court’s determination is supported by the fact that the jury convicted Austin 9

of only two of the six counts of attempted first degree murder (of Agents Danny Jewell and

Michael Pizzolato). This strongly suggests that subsection (A)(2) (murder of police officers),

and perhaps (A)(3) (intent to kill more than one person) provided the primary bases for the

verdict. If the jury had in fact relied upon subsection (A)(6) (cocaine distribution), there would

have been little reason for it to differentiate between the victims, as Austin’s cocaine

distribution was ongoing throughout the incident, and not specific to particular victims.

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The Louisiana Fifth Circuit Court of Appeal correctly recognized and

applied the principles that we have detailed above, even though it did not

directly cite federal authority. The court instead relied uponLouisiana precedent

that interpreted the Double Jeopardy Clause of the Fifth Amendment, the

analogous provision of the Louisiana Constitution, and relevantSupreme Court 10

precedent. Austin, 900 So. 2d at 884-85 (citing State v. Brown, 694 So. 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 (La. App. 5 Cir. 2000)). We have

explained that “a federal habeas court is authorized by Section 2254(d) to review

only a state court’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 focus on 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 state court’s ultimate decision, not every jot of its

reasoning.”). The state court properly concluded that no double jeopardy

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, clearly established federal law, as determined

Article 1, Section 15 of the Louisiana Constitution of 1974 provides,“[n]o person shall 10

be twice placed in jeopardy for the same offense, except on his application for a new trial, when

a mistrial is declared, or when a motion in arrest of judgment is sustained.” LA. CONST. art.

1, § 15.

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by the Supreme Court. The decision also did not involve “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 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.

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