United States Court of Appeals

Fifth Circuit

FILED

May 7, 2004

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

No. 03-41293

_______________

ERIC LYNN MOORE,

Petitioner-AppelleeCross-Appellant,

VERSUS

DOUG DRETKE,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-AppellantCross-Appellee,

_________________________

Appeals from the United States District Court

for the Eastern District of Texas

_________________________

Before SMITH, EMILIO M. GARZA and

DENNIS, Circuit Judges.

PER CURIAM:

The state appeals a conditional grant of a

writ of habeas corpus to Eric Moore. Moore

cross-appeals, asking usto vacate the writ and

instruct the district court to conduct an evidentiary hearing. We vacate the writ and remand for further proceedings, which need not

necessarily include the requested evidentiary

hearing.

This court previously granted Moore permission to file a successive habeas petition under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254, because he had made a prima facie

showing of entitlement to relief predicated on
2

Atkins v. Virginia, 536 U.S. 304 (2002)SSa

claim that was previously unavailable to him.

In re Moore, No. 03-40207, 67 Fed. Appx.

252 (5th Cir. May 12, 2003) (unpublished)

(table) (citing 28 U.S.C. § 2244(b)(2)(A)).

We directed the district court to conduct its

own searching review of the record to

determine whether Moore had satisfied the

requirements for filing such a petition. As a

result, and depending on itsinquiry, that court

had the power either to find that Moore had

failed to satisfy § 2244’s standards and deny

him leave to file his petition, or to consider the

petition on the merits. See Reyes-Requena v.

United States, 243 F.3d 893, 899 (5th Cir.

2001). 

The district court did neither, but instead

granted Moore a stay of execution and agreed

with our assessment that Moore could file his

successive habeas petition because it satisfied

the requirements of 28 U.S.C. § 2244(b)-

(2)(A).1 MooreSSseeking to develop the rec

ord in anticipation of a hearing on the merits of

his petitionSSmoved for appointment of a

psychologist trained in the field of mental retardation, and for a socialhistoryinvestigation.

The district court denied those requests as

premature.

Instead of holding the hearing that Moore

sought, the court opted to fault the state

courts for a perceived misapplication of their

own laws in acting on Moore’s state habeas

petition. To remedy the state’s “error,” the

court granted the writ and conditionally ordered Moore released. The court provided

that its order would not take effect if the state

courts either (a) reopened Moore’s state

habeas petition and conducted a fact-finding

hearing to determine whether his execution

would violate Atkins or (b) commuted the sentence to life imprisonment.

On appeal, neither partydefendsthe district

court’s decision. It is axiomatic that

1 The district court found only that Moore’s petition “appears” to satisfy the requirements of 28

U.S.C. § 2244(b)(2)(A) and that “it certainly does

not conclusively demonstrate that it does not meet

the three elements” of that section. That is

insufficient. AEDPA expressly and

unambiguously provides that the district court

“shall dismiss” the petition “unless the applicant

showsthat the claim satisfiesthe requirements

of this section.” 28 U.S.C. § 2244(b)(4). The

mere appearance of compliance is an insufficient

basis to authorize the filing of a successive habeas

petition.

We recognize, however, that this error flows

naturally from a literal interpretation of language

from In re Morris, 328 F.3d 739, 741 (5th Cir.

2003)(per curiam)SSlanguage that this panel quoted in our directive to the district court. Morris did

(continued...)

1

(...continued)

not change the standard governing the district

court’s § 2244(b)(4) inquiry. It sought only to

explain thatstandard in the panel’s own words and,

in so doing, may have given the misleading

impression that a successive habeas petition can be

dismissed by the district court only if the state

conclusively shows that the petition does not comply with the statute. See Morris, 328 F.3d at 741.

The correct standard is still the one in the statute: The applicant bears the burden of demonstrating that the petition does in fact comply with the

statute, and the district court shall dismiss the

petition unless that showing is made. See 28

U.S.C. § 2244; Brown v. Lensing, 171 F.3d 1031,

1032 (5th Cir. 1999). We do not use this reason to

vacate thewrit, however, because the state does not

make this argument on appeal. See United States

v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
3

“infirmities in state habeas proceedings do not

constitute grounds for federal habeas relief.”

Duff-Smith v. Collins, 973 F.2d 1175, 1182

(5th Cir. 1993).2 This is because “an attack on

the state habeas proceeding is an attack on a

proceeding collateral to the detention and not

the detention itself.” Rudd v. Johnson, 256

F.3d 317, 320 (5th Cir. 2001).

As a result, the district court had no basis

for its conclusion that Moore was entitled to

habeasrelief on a mere showing that the Texas

courts had misapplied their own procedural

rules to his state habeas petition. Rather, the

district court’s habeas jurisdiction extends only

to claims that the petitioner “is in custody in

violation oftheConstitution or laws or treaties

of the United States,” see 28 U.S.C. §

2254(a), and it is only on a finding of such a

violation that the court may grant habeas

relief. The district court did not find a

violation offederal law,so we vacate the writ.3

In his cross-appeal, Moore raises two issues that are premature at this stage of the litigation. He argues that he is entitled to an evidentiary hearing on his claim of mental

retardation and that his petition is not

procedurally defaulted. The district court has

not addressed these questions, so we decline

to consider them on appeal. See Floors

Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55

F.3d 181, 187 (5th Cir. 1995).

On remand, the court must consider whether Moore is entitled to an evidentiary hearing

under 28 U.S.C. § 2254(e)(2)(A) and (B). Regardless of whether it holdssuch a hearing, the

court must determine whether Moore’s claim

is procedurally defaultedSSan issue that it

expressly reserved. If it decides that there is

no default, the court must determine whether

Moore is entitled to relief on the merits of his

Atkins claim, and if so, the court should

fashion an appropriate remedy.

We VACATE the writ and REMAND for

further proceedings not inconsistent with this

opinion.

2

See also Henderson v. Cockrell, 333 F.3d

592, 606 (5th Cir.), cert. denied, 124 S. Ct. 1170

(2004); Trevino v. Johnson, 168 F.3d 173, 180

(5th Cir. 1999); Hallmark v. Johnson, 118 F.3d

1073, 1080 (5th Cir. 1997).

3 We are not insensitive to the district court’s

statement, made in the course of denying a motion

to reconsider, that the parties failed adequately to

brief this issue despite specific instructions to do

so. Nevertheless, the issue is jurisdictional, and the

court was required to consider it sua sponte if

necessary. Crone v. Cockrell, 324 F.3d 833, 836

(5th Cir.), cert. denied, 124 S. Ct. 287 (2003).