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United States Court of Appeals
Fifth Circuit
F I L E D
In the
May 7, 2004
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
No. 03-41293
_______________
ERIC LYNN MOORE,
Petitioner-Appellee-
Cross-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant-
Cross-Appellee,
_________________________
Appeals from the United States District Court
for the Eastern District of Texas
_________________________
Before SMITH, EMILIO M. GARZA and
mand for further proceedings, which need not
DENNIS, Circuit Judges.
necessarily include the requested evidentiary
hearing.
PER CURIAM:
This court previously granted Moore per-
The state appeals a conditional grant of a
mission to file a successive habeas petition un-
writ of habeas corpus to Eric Moore. Moore
der the Antiterrorism and Effective Death
cross-appeals, asking us to vacate the writ and
Penalty Act of 1996 ("AEDPA"), 28 U.S.C.
instruct the district court to conduct an evi-
§ 2254, because he had made a prima facie
dentiary hearing. We vacate the writ and re-
showing of entitlement to relief predicated on

Atkins v. Virginia, 536 U.S. 304 (2002)SSa
ord in anticipation of a hearing on the merits of
claim that was previously unavailable to him.
his petitionSSmoved for appointment of a
In re Moore, No. 03-40207, 67 Fed. Appx.
psychologist trained in the field of mental re-
252 (5th Cir. May 12, 2003) (unpublished)
tardation, and for a social history investigation.
(table) (citing 28 U.S.C. § 2244(b)(2)(A)).
The district court denied those requests as
We directed the district court to conduct its
premature.
own searching review of the record to
determine whether Moore had satisfied the
Instead of holding the hearing that Moore
requirements for filing such a petition. As a
sought, the court opted to fault the state
result, and depending on its inquiry, that court
courts for a perceived misapplication of their
had the power either to find that Moore had
own laws in acting on Moore's state habeas
failed to satisfy § 2244's standards and deny
petition. To remedy the state's "error," the
him leave to file his petition, or to consider the
court granted the writ and conditionally or-
petition on the merits. See Reyes-Requena v.
dered Moore released. The court provided
United States, 243 F.3d 893, 899 (5th Cir.
that its order would not take effect if the state
2001).
courts either (a) reopened Moore's state
habeas petition and conducted a fact-finding
The district court did neither, but instead
hearing to determine whether his execution
granted Moore a stay of execution and agreed
would violate Atkins or (b) commuted the sen-
with our assessment that Moore could file his
tence to life imprisonment.
successive habeas petition because it satisfied
the requirements of 28 U.S.C. § 2244(b)-
On appeal, neither party defends the district
(2)(A).1 MooreSSseeking to develop the rec
court's decision. It is axiomatic that
1 The district court found only that Moore's pe-
1(...continued)
tition "appears" to satisfy the requirements of 28
not change the standard governing the district
U.S.C. § 2244(b)(2)(A) and that "it certainly does
court's § 2244(b)(4) inquiry. It sought only to
not conclusively demonstrate that it does not meet
explain that standard in the panel's own words and,
the three elements" of that section. That is
in so doing, may have given the misleading
insufficient. AEDPA expressly and
impression that a successive habeas petition can be
unambiguously provides that the district court
dismissed by the district court only if the state
"shall dismiss" the petition "unless the applicant
conclusively shows that the petition does not com-
shows that the claim satisfies the requirements
ply with the statute. See Morris, 328 F.3d at 741.
of this section." 28 U.S.C. § 2244(b)(4). The
mere appearance of compliance is an insufficient
The correct standard is still the one in the stat-
basis to authorize the filing of a successive habeas
ute: The applicant bears the burden of demonstrat-
petition.
ing that the petition does in fact comply with the
statute, and the district court shall dismiss the
We recognize, however, that this error flows
petition unless that showing is made. See 28
naturally from a literal interpretation of language
U.S.C. § 2244; Brown v. Lensing, 171 F.3d 1031,
from In re Morris, 328 F.3d 739, 741 (5th Cir.
1032 (5th Cir. 1999). We do not use this reason to
2003) (per curiam)SSlanguage that this panel quot-
vacate the writ, however, because the state does not
ed in our directive to the district court. Morris did
make this argument on appeal. See United States
(continued...)
v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
2

"infirmities in state habeas proceedings do not
not addressed these questions, so we decline
constitute grounds for federal habeas relief."
to consider them on appeal. See Floors
Duff-Smith v. Collins, 973 F.2d 1175, 1182
Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55
(5th Cir. 1993).2 This is because "an attack on
F.3d 181, 187 (5th Cir. 1995).
the state habeas proceeding is an attack on a
proceeding collateral to the detention and not
On remand, the court must consider wheth-
the detention itself." Rudd v. Johnson, 256
er Moore is entitled to an evidentiary hearing
F.3d 317, 320 (5th Cir. 2001).
under 28 U.S.C. § 2254(e)(2)(A) and (B). Re-
gardless of whether it holds such a hearing, the
As a result, the district court had no basis
court must determine whether Moore's claim
for its conclusion that Moore was entitled to
is procedurally defaultedSSan issue that it
habeas relief on a mere showing that the Texas
expressly reserved. If it decides that there is
courts had misapplied their own procedural
no default, the court must determine whether
rules to his state habeas petition. Rather, the
Moore is entitled to relief on the merits of his
district court's habeas jurisdiction extends only
Atkins claim, and if so, the court should
to claims that the petitioner "is in custody in
fashion an appropriate remedy.
violation of the Constitution or laws or treaties
of the United States," see 28 U.S.C. §
We VACATE the writ and REMAND for
2254(a), and it is only on a finding of such a
further proceedings not inconsistent with this
violation that the court may grant habeas
opinion.
relief. The district court did not find a
violation of federal law, so we vacate the writ.3
In his cross-appeal, Moore raises two is-
sues that are premature at this stage of the lit-
igation. He argues that he is entitled to an ev-
identiary hearing on his claim of mental
retardation and that his petition is not
procedurally defaulted. The district court has
2 See also Henderson v. Cockrell, 333 F.3d
592, 606 (5th Cir.), cert. denied, 124 S. Ct. 1170
(2004); Trevino v. Johnson, 168 F.3d 173, 180
(5th Cir. 1999); Hallmark v. Johnson, 118 F.3d
1073, 1080 (5th Cir. 1997).
3 We are not insensitive to the district court's
statement, made in the course of denying a motion
to reconsider, that the parties failed adequately to
brief this issue despite specific instructions to do
so. Nevertheless, the issue is jurisdictional, and the
court was required to consider it sua sponte if
necessary. Crone v. Cockrell, 324 F.3d 833, 836
(5th Cir.), cert. denied, 124 S. Ct. 287 (2003).
3