REVISED NOVEMBER 7, 2011

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                    FILED
                                  No. 10-30342                  October 17, 2011

                                                                  Lyle W. Cayce
                                                                       Clerk
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.
                                  No. 10-30342

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


                                        2
                                  No. 10-30342

      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



                                        3
                                   No. 10-30342

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, 

(La. App. 5
Cir. 2005) (direct appeal); 

(La. 2005) (denial of writ of certiorari);

(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, 

(E.D. La. Oct. 16, 2009). The district court adopted this
recommendation over Austin’s objections, and denied a certificate of



                                         4
                                        No. 10-30342

appealability (“COA”). Austin v. Cain, No. 07-9362, 

(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
under LA. 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, 

, 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


       1
        Although Austin was sentenced to concurrent rather than consecutive prison terms,
concurrent sentences may still constitute “multiple punishments” for double jeopardy purposes.
See Ball v. United States, 

, 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.”).

                                               5
                                  No. 10-30342

Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Williams v. Taylor, 

, 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. __, 

, 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, 

, 439 (5th Cir. 2010) (citing

). 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, 

, 535 (5th Cir. 2010).
                                III. DISCUSSION
A. Concurrent Sentence Doctrine
      Before turning to the merits, we first address the argument of Respondent-
Appellee 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)

                                         6
                                       No. 10-30342

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).2 As such, he would still
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, 

,
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.

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


       2
         See United States v. Buckley, 

, 505 (5th Cir. 1978) (“[W]here a defendant
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.”).

                                              7
                                       No. 10-30342
suspending imposition of that sentence.” United States v. Stovall, 

,
824 (5th Cir. 1987); see also United States v. Harrelson, 

, 1185 (5th
Cir. 1985); United States v. Cardona, 

, 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, 

, 635 (5th Cir. 1991); 

. 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.” 

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.” 

We
also decline to address this issue here.3




       3
        The Seventh Circuit has recently applied the doctrine in the state habeas context. See
Cheeks v. Gaetz, 

, 689-90 (7th Cir. 2009). The Ninth Circuit, in contrast, has
abandoned the doctrine altogether. United States v. De Bright, 

, 1259 (9th Cir.
1984) (en banc) (“We overrule our prior cases which have authorized use of the concurrent
sentence doctrine.”).

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                                  No. 10-30342
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.

(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).” 

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.” 

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).” 

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

                                        9
                                   No. 10-30342
to distribute was not an essential element.” 

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, 

, 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
v. Maryland, 

, 794 (1969). 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, 

, 165 (1977) (internal quotation marks omitted) (quoting North Carolina
v. Pearce, 

, 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, 

(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.” 

A court applying the Blockburger test must “focus[]

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                                  No. 10-30342
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,

, 785 n.17 (1975); see also United States v. Agofsky, 

,
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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                                       No. 10-30342
                      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,4 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
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
out there to protect and defend the people of our parish. That’s why it’s first degree murder,

                                              12
                                        No. 10-30342
additional basis for the prosecution and verdict.5 More importantly, our purpose
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 

. 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); 

.
       The most relevant Supreme Court decision in the context of this case is
Illinois v. Vitale, 

(1980), abrogated on other grounds by United
States v. Dixon, 

, 704 (1993).6 There, the petitioner had accidentally


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


       6
         In United States v. Dixon, 

(1993), the Supreme Court overruled its prior
decision in Grady v. Corbin, 

(1990), which had held that “the Double Jeopardy

                                               13
                                         No. 10-30342
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. 

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.

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. 

The
Court explained:
       [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


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 

(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
conduct for which the defendant was convicted in the first prosecution.” 

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 

. 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, 

(1977)] as merely an application of
the double jeopardy bar to lesser and greater included offenses.” 

The Court also
rejected the contention that Vitale in fact adopted a “same conduct” test. 

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.”).

                                            14
                                        No. 10-30342
       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.

(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].” 

-20 (emphasis
added).7 The Court then remanded the case to allow the state court to determine
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
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.” 

recognize that Vitale involved successive prosecutions, while the case before us
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 

. Rather, the Court explained, “[w]e
have often noted that the 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.” 

The Supreme Court has also recognized that, “[i]f two 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.” 

(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.

                                              15
                                  No. 10-30342
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 prosecutions would not have been for the ‘same offense’
within the meaning of the Double Jeopardy Clause.” 

      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, 

(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.” 

(emphasis added). Three years after Harris, the Supreme Court decided Whalen
v. United States, 

(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
of a rape cannot be had without proving all the elements of the offense of rape.”

The government had argued that felony murder and rape were not

                                        16
                                     No. 10-30342
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 of
another person in the course of committing rape or robbery or kidnaping or
arson, etc.” 

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.

      This court has applied Vitale on multiple occasions, primarily in the
context of felony-murder prosecutions.8 In Sekou v. Blackburn, 

(5th
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. 

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.” 

In doing so, the court distinguished Harris and Brown, and relied upon Vitale.
The court explained, “in the present appeal, if the state could have proved
felony-murder without also proving armed robbery, then the successive

      8
         Louisiana’s felony murder statute is not at issue here. Louisiana’s felony murder
statute is codified at LA. REV. STAT. § 14:30(A)(1), and Austin was not charged under this
provision.

                                           17
                                 No. 10-30342
prosecutions do not constitute prosecutions for the ‘same offense’ within the
meaning of the Double Jeopardy Clause.” 

(citing 

). 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.” 

The court then examined whether the
state had “bound itself to proving only armed robbery” at the defendant’s felony-
murder 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.” 

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 government from proving both
the kidnapping and the armed robbery if Sekou had gone to trial on the felony-
murder charge.” 

n.3. The court thus rejected Sekou’s double jeopardy
argument. 

-12.
      In contrast, we found a double jeopardy violation in Neville v. Butler, 

(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.” 

(emphasis added) (citing 

). 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.” 

      Taken together, Vitale, Sekou, and Neville demonstrate that two offenses
are the “same” under Blockburger only if one offense is “always a necessary

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                                        No. 10-30342
element” of another offense. 

; 

;

. 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” of the greater offense (first degree murder) under Louisiana law. 

. Put another way, first degree murder does not “always entail
proof” of possession with intent to distribute cocaine. 

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. 

-85; 28
U.S.C. § 2254(d)(2).9 Cocaine distribution was therefore not a necessary element
of Austin’s attempted first degree murder charge.
       The Louisiana Fifth Circuit Court of Appeal correctly recognized and
applied the principles that we have detailed above, even though it did not


       9
         The state court’s determination is supported by the fact that the jury convicted Austin
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.

                                               19
                                        No. 10-30342
directly cite federal authority. The court instead relied upon Louisiana precedent
that interpreted the Double Jeopardy Clause of the Fifth Amendment, the
analogous provision of the Louisiana Constitution,10 and relevant Supreme Court
precedent. 

-85 (citing State v. Brown, 

,
437 (La. App. 5 Cir. 2005); State v. Barton, 

, 1201 (La. App. 5 Cir.
2003); State v. Jackson, 

, 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, 

, 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.” 

see also Santellan v. Cockrell,

, 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.” 

.
       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
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

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

                                              20
                                 No. 10-30342
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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