IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                  No. 93-3281



DEDRICK BENNETT,
                                                Petitioner-Appellant,

                                    versus

JOHN P. WHITLEY, WARDEN
                                                Respondent-Appellee.




          Appeal from the United States District Court
              for the Middle District of Louisiana


                              (December 22, 1994)

Before HIGGINBOTHAM, SMITH and PARKER, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     A state refusing to listen to a habeas claim because it was

decided on direct appeal does not impose a procedural bar to

federal review     of   the    constitutional   issue.   We   reverse   the

district court's contrary holding and remand.



                                      I.

     On December 12, 1981, Dedrick Bennett and his accomplice, Shug

Bell, entered a convenience store intending to rob the clerk.            A

sheriff's deputy interrupted the robbery, and Shug Bell killed both

the deputy and the clerk.         Bennett claims that he fled the scene

before Shug Bell killed the deputy and the clerk.
       A Louisiana jury convicted Bennett of two counts of second

degree murder, felony murder, and sentenced him to two consecutive

life sentences.    Bennett exhausted his remedies on direct appeal.

He also filed an application for post-conviction relief in the

state district court.     Bennett raised four claims:        (1)     double

jeopardy; (2) insufficient evidence; (3) erroneous jury charge on

reasonable doubt; and (4) ineffective assistance of counsel.              A

state court commissioner recommended that claims two and three be

denied for reasons of procedural default pursuant to La. Code Crim.

Proc. Ann. art. 930.4(A). Article 930.4(A) provides that "[u]nless

required in the interest of justice, any claim for relief which was

fully litigated in an appeal from the proceedings leading to the

judgment of conviction and sentence shall not be considered."           The

commissioner also recommended that relief as to claims one and four

be denied on their merits.

       The state district court denied Bennett's first three claims

on the grounds that they were barred by procedural default pursuant

to article 930.4(A).    The court denied Bennett's fourth claim as

meritless.     Bennett appealed, and the court of appeal denied

review, citing the commissioner's report.        The Louisiana Supreme

Court denied Bennett's writ application "on the showing made."

       Bennett's petition for writ of habeas corpus in federal court

asserted the same four grounds for relief.          A magistrate judge

found that Bennett's insufficient evidence and jury charge claims

were   procedurally   barred   pursuant   to   article   930.4(A).     The




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magistrate judge addressed the merits of Bennett's other claims and

recommended that the district court deny relief.

     The district court judge adopted the magistrate judge's report

and denied relief.       Bennett filed a notice of appeal, and we

granted a CPC.      Bennett raises as error only the district court's

procedural default holdings; he does not challenge the district

court's denial of relief on the double jeopardy and ineffective

assistance of counsel claims.



                                   II.

     The district court erroneously held that Bennett's claims were

barred by procedural default.      There are three primer rules and a

presumption behind today's ruling.          First, "[w]hen a state-law

default prevents the state court from reaching the merits of a

federal claim, that claim can ordinarily not be reviewed in federal

court." Ylst v. Nunnemaker, 

, 2593 (1991).            Second,

if the last state court to reach the issue looks to its merits,

then the federal courts are also free to review the issue on its

merits.    

determining whether to reach the merits of

a petitioner's claim, the district court must look to the last

state court decision.     

courts in deciding upon what

grounds the last state court decision rests, the Supreme Court

fashioned the following presumption:         "where there has been one

reasoned    state    judgment   rejecting    a   federal    claim,    later

unexplained orders upholding that judgment or rejecting the same

claim rest upon the same ground."        

     The Court held


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that a strong showing would be required to rebut the presumption,

but identified one situation in which the presumption would always

be rebutted:

     The only common circumstance in which the presumption is
     unrealistic is that in which the later state decision rests
     upon a prohibition against further state review -- for
     example, an unexplained denial of state habeas resting in fact
     upon a rule . . . preventing the relitigation on state habeas
     of claims raised on direct appeal. In that circumstance, even
     though the presumption does not posit the real reason for the
     later denial, it does produce a result . . . that is the
     correct one for federal habeas courts. Since a later state
     decision based upon ineligibility for further state review
     neither rests upon procedural default nor lifts a pre-existing
     procedural default, its effect upon the availability of
     federal habeas is nil -- which is precisely the effect
     accorded by the "look-through" presumption.

n.3.       This is Bennett's case.            Article 930.4(A)

precludes a Louisiana court from considering the merits of a claim

that has already been raised on direct appeal.           The bar imposed by

article 930.4(A) is not a procedural bar in the traditional sense,

nor is it a decision on the merits.         It did not bar the district

court from addressing the merits of Bennett's insufficient evidence

and jury charge claims.



                                   III.

     The   judgment   dismissing   as     procedurally    barred   Bennett's

claims of insufficient evidence and flawed jury charge is reversed,

and the case is remanded for further proceedings.




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