Austin v. Cain

• Decision Date: 17 October 2011
• Docket Number: No. 10–30342.,10–30342.
• Citation: 660 F.3d 880
• Parties: Noel AUSTIN, Petitioner–Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

660 F.3d 880

Noel AUSTIN, Petitioner–Appellant,

v.Burl CAIN, Warden, Louisiana State Penitentiary, Respondent–Appellee.

No. 10–30342.

United States Court of Appeals, Fifth Circuit.

Oct. 17, 2011.

Noel Austin, Angola, LA, Pro Se.

Thomas Joseph Butler, Asst. Dist. Atty., Gretna, LA, for 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. 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.

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 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, 900 So.2d 867 (La.App. 5 Cir.2005) (direct appeal); 916 So.2d 143 (La.2005) (denial of writ of certiorari); 963 So.2d 389 (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, 2009 WL 6319555 (E.D.La. Oct. 16, 2009). The district court adopted this recommendation over Austin's objections, and denied a certificate of appealability (“COA”). Austin v. Cain, No. 07–9362, 2010 WL 1294060 (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, 521 U.S. 320, 324–26, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (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 Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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. ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (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, 616 F.3d 436, 439 (...