UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 95-30339
Summary Calendar
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LEROY JOHNSON,
Petitioner-Appellant,
VERSUS
TERRY TERRELL, Warden, Etc., et al.,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(94 CV 3350)
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September 6, 1995
Before DAVIS, BARKSDALE and DEMOSS, Circuit Judges.
PER CURIAM:1
Johnson appeals the district court's dismissal of his § 2254
petition. We affirm.
I.
Leroy Johnson, a prisoner of the State of Louisiana, is serving
a 30-year sentence for attempted armed robbery and attempted second
degree murder. At trial, the prosecution introduced evidence that
Johnson, wearing a stocking mask and a motorcycle helmet,
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
approached Larry Glorioso in front of Sam's Superette store and
demanded that Glorioso give him a money bag containing
approximately $8,000. Glorioso resisted, and Johnson beat Glorioso
severely about the head with a wrench and with the motorcycle
helmet until Glorioso was able to reach his gun and shoot Johnson.
After exhausting state remedies, Johnson filed a pro se,
in forma pauperis, federal habeas corpus petition asserting that
his convictions for both attempted second degree murder and
attempted armed robbery violate the Double Jeopardy Clause.
Johnson also argued that the evidence was insufficient to support
his conviction for attempted murder and that the trial court
improperly charged the jury concerning the elements of attempted
murder.
II.
A.
On appeal to this court, Johnson argues first that his
convictions violate the Double Jeopardy Clause, which prohibits
multiple punishments for the same offense. He contends that the
elements of both offenses - attempted second degree murder and
attempted armed robbery were proved by the "same evidence," and he
was punished twice for the "same conduct."
Whether different statutes punish the same offense is
determined by the standard in Blockburger v. United States, 284
U.S. 299 (1932). See also, United States v. Singleton, 16 F.3d
1419, 1422 (5th Cir. 1994). That standard requires that the two
statutes be compared to determine "`whether each provision requires
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proof of an additional fact which the other does not.'" Singleton,
16 F.3d at 1422 (quoting Blockburger, 284 U.S at 304). If "either
statute contains no element not also found in the other statute,"
the statutes fail the Blockburger test, precluding punishment under
both. Id.
Johnson concedes on appeal that he was convicted under two
different statutes that required proof of different elements.
Under Blockburger, even if these convictions flow from the same
course of conduct, there is no violation of the Double Jeopardy
Clause and Johnson's contention that his federal constitutional
right was violated is without merit.
B.
Johnson's brief, liberally construed, also argues that the
evidence is insufficient to support his conviction for attempted
second degree murder. Specifically, he challenges the sufficiency
of the evidence to prove the element of "specific intent to kill."
The appropriate standard of review in this collateral
challenge, notwithstanding any state-law standard, is that
enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979):
"[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt." The elements of the offense are defined by
state law. Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir.
1985).
In Louisiana, the crime of attempted second degree murder
3
requires specific intent to kill. See State v. Allen, 571 So. 2d
758, 761 (La. Ct. App. 1990); State v. Pollard, 585 So.2d 634, 638
(La. Ct. App. 1991). "Specific criminal intent is that state of
mind which exists when the circumstances indicate that the offender
actively desired the prescribed criminal consequences to follow his
act or his failure to act." State v. Lindsey, 543 So. 2d 886, 902
(La. 1989) (quoting La. R.S. 14:10(1)), cert. denied, 494 U.S. 1074
(1990).
At trial, Glorioso testified that Johnson hit him over the
head "rapidly" with something very hard. Johnson called him by
name and said "Larry, I'm gonna kill you." The two men struggled,
and Glorioso grabbed Johnson's wrist to stave off the wrench in
Johnson's hand. At that point, Johnson hit Glorioso with the
motorcycle helmet Johnson had been wearing. Glorioso almost lost
consciousness and had to let go of the wrench. Johnson started
hitting Glorioso with the wrench again. Glorioso managed to get to
his gun and shot Johnson.
Officer Greg Clay of the New Orleans Police Department, who
responded to the call, stated that Glorioso was covered with blood
from his head to his shoulders. He was holding a gun and shouting
incoherently.
Glorioso was taken to the hospital and underwent approximately
four hours of plastic surgery. The plastic surgeon testified that
Glorioso's wounds were life-threatening. Glorioso suffered severe
trauma about the face and scalp, 15 deep cuts on his scalp down to
his skull, cuts on his forehead and under the eyes, massive
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swelling about the face, and multiple fractures of the facial bones
and nose. The plastic surgeon wired the broken facial bones back
together and applied approximately 100 stitches to the wounds.
Viewing this evidence in the light most favorable to the
prosecution, a rational trier of fact could have found beyond a
reasonable doubt that Johnson actively desired to kill Glorioso
when he administered the beating. Accordingly, the evidence was
sufficient to support Johnson's conviction for attempted second
degree murder.2
III.
For the reasons stated above, the judgment of the district
court is AFFIRMED.
2
Johnson asserts that the trial court erred in its
instruction to the jury on reasonable doubt. However, Johnson
did not raise this issue in the district court and we decline to
address it.
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