Tyler v. Cain, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31159
Summary Calendar
MELVIN TYLER,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana
State Penitentiary,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-1549-G
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June 1, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Melvin Tyler, Louisiana prisoner # 81668, appeals the
dismissal of his petition under 28 U.S.C. § 2254. In 1976, Tyler
was convicted of one count of second degree murder. He is
continuing to serve his sentence of life imprisonment without the
benefit of parole, probation, or suspension of sentence for a
period of twenty years.
Tyler has requested federal habeas relief following the
denial of his numerous state habeas petitions. This court has
previously given Tyler permission to file a successive § 2254

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No. 98-31159
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application on the issues whether Cage v. Louisiana, 498 U.S. 39
(1990), should be applied retroactively on collateral review and
whether the jury instruction on reasonable doubt given to his jury
was unconstitutional under Cage and Victor v. Nebraska, 511 U.S. 1
(1990). The district court determined that, based upon Humphrey v.
Cain, 138 F.3d 552 (5th Cir.)(en banc), cert. denied, 119 S. Ct.
348, 365 (1998), Cage was to be applied retroactively, but it
denied relief under the standard set forth by 28 U.S.C. § 2254(d).
The district court erred in not determining first whether
Tyler’s petition satisfied AEDPA’s successive habeas standard, 28
U.S.C. § 2244(b)(2)(A). Procedurally, this case is governed by
Brown v. Lensing, 171 F.3d 1031 (5th Cir. 1999), which relies on In
re Smith, 142 F.3d 832 (5th Cir. 1998). Under circumstances
indistinguishable from this case, petitioner Brown was denied
successive habeas relief because he could not show that any Supreme
Court decision renders the Cage decision retroactively applicable
to cases on collateral review, as AEDPA now requires. Moreover,
the Brown case specifically disapproved the district court’s
approach in this case. Brown, 171 F.3d at 1032 n.9.
Like cases demand like treatment. Tyler’s successive
petition fails according to Brown and § 2244(b)(2)(A).
For these reasons, only, the judgment of the district
court denying habeas relief is AFFIRMED.

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