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

_______________



### E RIC 

### L YNN 

### M OORE



### ,

Petitioner-AppelleeCross-Appellant,

VERSUS



### D OUG 

### D RETKE



### ,

D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

, C ORRECTIONAL I NSTITUTIONS D IVISION

,



### Respondent-AppellantCross-Appellee,



### _________________________

Appeals from the United States District Court

for the Eastern District of Texas

_________________________

Before S MITH , E MILIO M. G ARZA and

D ENNIS , Circuit Judges.

P ER C URIAM :

The state appeals a con dit ional grant of a

writ of habeas corpus to Eri c Moore. Moore

cross-appeals, asking us to vacate the writ and

inst r uct the district court to conduct an evident iary hearing. We vacate the writ and remand for further proceedings, which need not

necessarily include the requested ev i dentiary

hearing.

This court previously granted Moore permission to file a successive habeas petition under the Antiter ro rism 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 on2

Atkins v. Virgini a

, 536 U.S. 304 (2002) 

### SS a

claim that was previously unava ilable to him.

In re Moore, N o. 03-40207, 67 Fed. Appx.

252 (5t h Cir. May 12, 2003) (unpublished)

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

We directed the district court to conduct it s

own searching review of the record to

determine whether Moore had satisfi e d the

requirements fo r filing such a petition. As a

result, and depending on its inquiry, 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.

Uni t ed States

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

2001).

The district cou rt 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 re quirements of 28 U.S.C. § 2244(b)-

(2)(A). 1 Moore 

### S

S seeking to develop the rec ord in anticipation of a hearing on the merits of

his petition 

### SS

moved for appointment of a

psychologist trained in the field of mental retardation, and for a social history investigation.

T he district court denied those requests as

premature.

Instead of holding the heari ng that Moore

sought, the court opted to fault the state

courts for a perceiv ed misapplication of their

own laws in acting on Moore’s state habeas

petiti on. To remedy the state’s “error,” the

court granted the writ and co ndit ionally ordere d Moore released. The court provided

that its order would not take effect if the state

courts either (a) reop ened Moore’s state

h abeas 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 party defends the district

court’s decision. It is axiomat ic that

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

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

not conclusively demonstrate that it does not meet

the thr ee elements” of that section. That is

insufficient. AEDPA expressly and

unambiguously provi d es that the district court

“shall dismiss” the petition “ unless the applicant

shows that the claim satisfies the requirements

o f t his section. ” 28 U.S.C. § 2244(b)(4). The

m er e appearance of compliance is an insufficient

basis to authorize the filing of a successive habeas

petition.

We recognize, however, that this error flows

natura lly from a literal interpretation of language

from In re Morris

, 328 F.3d 7 39, 741 (5th Cir.

2003) (per curiam) SS

language that this panel quoted in our directive to the district court. M orris did

(continued...) 1 (...continued)

not change the standard gover ning the district

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

explain that standard in the panel’s own words and,

in so d oing, may have given the misleading

impression that a successive habeas petition can be

dismissed by the di strict court only if the s tate

conclusively shows that the petition does not comply with the statute. S ee 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 s hall dismiss the

p etition unless that showing is made. S ee 2 8

U.S.C. § 2244; Brown v. Lensing

, 171 F.3d 1031,

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

vacate the writ, 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

“infirmit ies in state habeas proceedings do not

constitute groun ds 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 detentio n itself.” R udd v. Johnson

, 256

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

As a result, the district court ha d no basis

for its conclusion tha t Moore was enti tl ed to

habeas relief on a mere showing that the Texas

courts had misapplied their own procedural

rules to his state habeas petition. Rather, the

dis trict court’s habeas jurisdiction extends only

to claims that the petitione r “is in custody in

violation of the Constitution or laws or treaties

of the United St ates,” s ee 28 U.S.C. §

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

viola t ion that the court may grant habeas

relief. The district co urt did not find a

violation of federal 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

retardati on and that his petition is not

procedurally defaulted. The district court has not addressed these quest io ns, so we decline

t o co nsider them on appeal. S ee 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 holds such a hearing, the

court must determine whether Moore’s claim

is proce durally defaulted 

### S S an 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 s o

, the court should

fashion an appropriate remedy.

We VACATE the writ and REMA ND 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 s ua sponte if

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

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