* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

 

No. 95-30114

Summary Calendar

 

 

LLOYD JOHNSON, JR., 

Petitioner-Appellant,

versus

C. MARTIN LENSING, Warden,

ET AL., 

Respondents-Appellees.

 

Appeal from the United States District Court

for the Eastern District of Louisiana

(94 CV 2775)

 

August 30, 1995

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

 PER CURIAM:*

I. FACTS AND PROCEDURAL HISTORY

Lloyd Johnson, Jr., was convicted for attempted first-degree

murder and is serving a 50-year term of imprisonment in the

custody of the Louisiana Department of Corrections. State v.

Johnson, 612 So.2d 828, 829 (La.Ct.App. 1992), writ denied, 616

So.2d 680 (La. 1993). Johnson appeals the dismissal of his

federal petition for a writ of habeas corpus, arguing that he was

insane at the time of the offense. Finding no error, we affirm.
II. ANALYSIS

Johnson contends that he was insane, thus lacking the

specific criminal intent for first degree murder. Johnson frames

his issue as a challenge to the sufficiency of the evidence. The

standard for testing the sufficiency of the evidence in a federal

habeas review of a state court conviction is whether, "after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." 

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

opinion). This standard must be applied with reference to the

substantive elements of the criminal offense as defined by state

law. Isham v. Collins, 905 F.2d 67, 69 (5th Cir. 1990). 

In Louisiana, a defendant is presumed sane at the time of

the offense, the state is not required to prove sanity. La. Rev.

Stat. Ann. 15:432 (West 1992); State v. Weber, 364 So.2d 952, 956

(La. 1978). A defendant who wishes to negate the presumption

must prove his insanity by a preponderance of the evidence. La.

Code Crim. Pro. art. 652 (West 1981); State v. Claibon, 395 So.2d

770, 772 & n.2 (La. 1981). To be exempt from criminal

responsibility on the ground of insanity, a defendant must

persuade the jury that he had a mental disease or defect which

rendered him incapable of distinguishing right from wrong in

regard to the conduct which forms the basis for the criminal

charge against him. La. Rev. Stat. Ann. 14:14 (West 1986); State

v. Roy, 395 So.2d 664, 665-66 (La. 1981). Therefore, the issue

cannot be a challenge to the sufficiency of the evidence because
-3-

Johnson's sanity was presumed and not an element of the offense. 

Insofar as his argument is a challenge to the weight of the

evidence of sanity/insanity, it is not of constitutional

dimension and is not cognizable in a habeas proceeding. Cf.

Parker v. Estelle, 498 F.2d 625, 628 (5th Cir. 1974), cert.

denied, 421 U.S. 963 (1975) (right to submit issue of sanity not

of constitutional magnitude but simply created by state statute).

Johnson argues that the state statute, which required him to

prove his insanity by a preponderance of the evidence,

unconstitutionally relieved the state of its burden of proving

criminal intent. The Supreme Court has consistently held to the

contrary. Leland v. Oregon, 343 U.S. 790, 796-99 (1952)

(upholding similar statute which required proof of insanity

beyond a reasonable doubt against due process challenge); see

also Walton v. Arizona, 497 U.S. 639, 650 (1990) ("So long as a

State's method of allocating the burdens of proof does not lessen

the State's burden to prove every element of the offense charged

. . . a defendant's constitutional rights are not violated by

placing on him the burden of proving mitigating circumstances

sufficiently substantial to call for leniency."). Louisiana's

allocation of the burden of proof on the insanity defense does

not lessen the burden on the state to prove criminal intent.

CONCLUSION

For the above stated reasons, the district court's judgment

is AFFIRMED.