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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, 111 S. Ct. 2590, 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. Id. Third, in determining whether to reach the merits of
a petitioner's claim, the district court must look to the last
state court decision. Id. To assist 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." Id. at 2594. 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.
Id. at 2595 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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