171 F3d 1031 Brown v. Cm Lensing

171 F.3d 1031

Michael J. BROWN, Petitioner-Appellant,
C.M. LENSING, Warden, Respondent-Appellee.

No. 98-30733
Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

April 19, 1999.

Michael J. Brown, St. Gabriel, LA, pro se.

Joseph Edward Lucore, New Orleans, LA, for Respondent-Appellee.

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

Before POLITZ, BARKSDALE and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

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Michael J. Brown was convicted of aggravated burglary in 1983. His conviction was affirmed on appeal and has been tested in several collateral attacks, state and federal. In 1996, in accordance with the Antiterrorism and Effective Death Penalty Act,1 Brown moved for authorization to file a successive petition under 28 U.S.C. § 2254,2 contending that the instruction on reasonable doubt given to his jury violated his constitutional rights under Cage v. Louisiana.3 A panel of this court authorized the filing, noting that Brown had satisfied 28 U.S.C. § 2244(b)(2)(A) by making a prima facie case "that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."4


Thereafter, in In re Smith5 we addressed the question whether the type of Cage claim pressed by Brown qualifies under § 2244(b)(2)(A), holding that the petitioner was not entitled to file a successive habeas petition because he had failed to " 'identify a Supreme Court edict that renders Cage retroactively applicable to cases on collateral review.' "6 We agreed with our colleagues in the First, Fourth, and Eleventh Circuits that the plain language of the statute requires an applicant to "point to a Supreme Court decision that either expressly declares the collateral availability of the rule ... or applies the rule in a collateral proceeding."7


In a thorough and careful opinion, the trial court determined that Brown had failed to identify any decision by the Supreme Court authorizing collateral review of his Cage claim, and dismissed the claim, citing In re Smith. The court then granted a certificate of appealability solely on the Cage claim.


We conclude that the trial court properly dismissed Brown's petition. In re Smith is controlling, binding precedent. Our authorization for Brown to file a successive petition is not dispositive of the critical question. The statute specifically directs the trial court to "dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section."8 Accordingly, the trial court was obliged by the statute to dismiss Brown's claim if it did not meet the requirements of § 2244.9


The trial court granted the certificate of appealability only as to the Cage claim; we therefore do not address Brown's ineffective assistance claim.10 We deny Brown's motion to remand.


For these reasons, the judgment of the trial court is, in all respects, AFFIRMED.


Pub.L. 104-132, 110 Stat. 1214 (1996)

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28 U.S.C. § 2244(b)


498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990)


See In re Michael J. Brown, No. 96-00310 (Nov. 1, 1996) (quoting 28 U.S.C. § 2244(b)(2)(A))


142 F.3d 832 (5th Cir.1998)


Id. at 835 (quoting Rodriguez v. Superintendent, Bay State Correctional Ctr., 139 F.3d 270, 275 (1st Cir.1998))


Id. at 835 (quoting Rodriguez, 139 F.3d at 275 and citing In re Vial, 115 F.3d 1192 (4th Cir.1997) (en banc); In re Hill, 113 F.3d 181 (11th Cir.1997))


28 U.S.C. § 2244(b)(4); see also Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir.1997) ("[Our] ... grant is ... tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion. 28 U.S.C. § 2244(b)(4). The movant must get through two gates before the merits of the motion can be considered."); United States v. Kashiwabara, 962 F.Supp. 1278 (D.Hawai'i 1996) (invoking 28 U.S.C. 2244(b)(4) to dismiss a successive petition authorized by the Ninth Circuit under 28 U.S.C. § 2244(b)(2))


We disapprove the approach taken in Tyler v. Cain, No. 97-1549, 1998 WL 614183 (E.D.La. Sept. 10, 1998), where the court held that once the Fifth Circuit authorizes a successive petition, the trial court is no longer bound by the dictates of 28 U.S.C. § 2244(b)(2)(A). That holding is irreconcilable with § 2244(b)(4). Commentators agree that the trial court must make its own determination that the statutory prerequisites are satisfied. See, e.g., Robert S. Madancy, Jr., Shawn M. Bates & Timothy Lambert, Twenty-Seventh Annual Review of Criminal Procedure, 86 Geo. L.J. 1896, 1923 (1998); Larry W. Yackle, Developments in Habeas Corpus, 21-Dec. Champion 16, 17 (1997)


See Lackey v. Johnson, 116 F.3d 149 (5th Cir.1997); United States v. Kimler, 150 F.3d 429 (5th Cir.1998)