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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30733
Summary Calendar
MICHAEL J. BROWN,
Petitioner-Appellant,
versus
C.M. LENSING, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
April 19, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:
Michael J. Brown was convicted of aggravated burglary in 1983. His
conviction was affirmed on appeal and has been tested in several collateral attacks,
state and federal. In 1996, in accordance with the Antiterrorism and Effective
Death Penalty Act,1 Brown moved for authorization to file a successive petition
1Pub. L. 104-132, 110 Stat. 1214 (1996).

under 28 U.S.C. § 2254,2 contending that the instruction on reasonable doubt given
to his jury violated his constitutional rights under Cage v. Louisiana.3 A panel of
this court authorized the filing, noting that Brown had satisfied 28 U.S.C. §
2244(b)(2)(A) by making a prima facie case "that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable."4
Thereafter, in In re Smith5 we addressed the question whether the type of
Cage claim pressed by Brown qualifies under § 2244(b)(2)(A), holding that the
petitioner was not entitled to file a successive habeas petition because he had failed
to "`identify a Supreme Court edict that renders Cage retroactively applicable to
cases on collateral review.'"6 We agreed with our colleagues in the First, Fourth,
and Eleventh Circuits that the plain language of the statute requires an applicant to
"point to a Supreme Court decision that either expressly declares the collateral
228 U.S.C. § 2244(b).
3498 U.S. 39 (1990).
4See In re Michael J. Brown, No. 96-00310 (Nov. 1, 1996) (quoting 28 U.S.C. §
2244(b)(2)(A)).
5142 F.3d 832 (5th Cir. 1998).
6Id. at 835 (quoting Rodriguez v. Superintendent, Bay State Correctional Ctr., 139
F.3d 270, 275 (1st Cir. 1998)).
2

availability of the rule . . . or applies the rule in a collateral proceeding."7
In a thorough and careful opinion, the trial court determined that Brown had
failed to identify any decision by the Supreme Court authorizing collateral review
of his Cage claim, and dismissed the claim, citing In re Smith. The court then
granted a certificate of appealability solely on the Cage claim.
We conclude that the trial court properly dismissed Brown's petition. In re
Smith is controlling, binding precedent. Our authorization for Brown to file a
successive petition is not dispositive of the critical question. The statute
specifically directs the trial court to "dismiss any claim presented in a second or
successive application that the court of appeals has authorized to be filed unless the
applicant shows that the claim satisfies the requirements of this section."8
Accordingly, the trial court was obliged by the statute to dismiss Brown's claim if
7Id. at 835 (quoting Rodriguez, 139 F.3d at 275 and citing In re Vial, 115 F.3d 1192
(4th Cir. 1997) (en banc); In re Hill, 113 F.3d 181 (11th Cir. 1997)).
828 U.S.C. § 2244(b)(4); see also Bennett v. United States, 119 F.3d 468, 469-70 (7th
Cir. 1997) ("[Our] . . . grant is . . . tentative in the following sense: the district court must
dismiss the motion that we have allowed the applicant to file without reaching the merits of
the motion, if the court finds that the movant has not satisfied the requirements for the filing
of such a motion. 28 U.S.C. § 2244(b)(4). The movant must get through two gates before
the merits of the motion can be considered."); United States v. Kashiwabara, 962 F. Supp.
1278 (D. Hawaii 1996) (invoking 28 U.S.C. 2244(b)(4) to dismiss a successive petition
authorized by the Ninth Circuit under 28 U.S.C. § 2244(b)(2)).
3

it did not meet the requirements of § 2244.9
The trial court granted the certificate of appealability only as to the Cage
claim; we therefore do not address Brown's ineffective assistance claim.10 We
deny Brown's motion to remand.
For these reasons, the judgment of the trial court is, in all respects,
AFFIRMED.
9We disapprove the approach taken in Tyler v. Cain, No. 97-1549, 1998 WL 614183
(E.D. La. Sept. 10, 1998), where the court held that once the Fifth Circuit authorizes a
successive petition, the trial court is no longer bound by the dictates of 28 U.S.C. §
2244(b)(2)(A). That holding is irreconcilable with § 2244(b)(4). Commentators agree that
the trial court must make its own determination that the statutory prerequisites are satisfied.
See, e.g., Robert S. Madancy, Jr., Shawn M. Bates & Timothy Lambert, Twenty-Seventh
Annual Review of Criminal Procedure, 86 Geo. L.J. 1896, 1923 (1998); Larry W. Yackle,
Developments in Habeas Corpus, 21-Dec. Champion 16, 17 (1997).
10See Lackey v. Johnson, 116 F.3d 149 (5th Cir. 1997); United States v. Kimler, 150
F.3d 429 (5th Cir. 1998).
4