The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on June 25, 2008:

• Butler v. Cain (Davis, Southwick, Clark, JJ.; opinion by Southwick, J.). The petitioner did not file for direct appeal of his conviction for second-degree murder timely, but the Louisiana Supreme Court subsequently considered (and denied) his filed-out-of-time petition for direct review. Upon filing for federal habeas relief, the federal district court dismissed his habeas petition as untimely, ruling that the one-year limitations period commenced to run upon the petitioner’s failure to timely file for direct appellate review. The Fifth Circuit affirmed, holding that the time for direct review expired without an appeal, and that the five-month period during which the state supreme court considered the out-of-time appeal did not toll the federal habeas limitations period. The Fifth Circuit noted that the Louisiana Supreme Court’s rules for considering the merits of an out-of-time filing apply to a narrow class of cases, and that the petitioner here had not even filed a request or motion to file an untimely appeal.
• U.S. v. Patino-Prado (King, Higginbotham, Southwick, JJ.; per curiam opinion). Affirming the defendant’s conviction and sentence for conspiracy to possess with intent to distribute marijuana and cocaine. The Fifth Circuit held that there was sufficient evidence for conviction on the cocaine-related conspiracy counts because the government need only prove knowledge that some controlled substance is at issue, not specifically that it is cocaine. The Court also found that there was no error in the jury instruction regarding finding of the object of the conspiracy.
• New Orleans & Gulf Coast Railway Co. v. Barrois (Reavley, Smith, Garza, JJ.; opinion by Garza, J.). Affirming the dismissal for lack of subject matter jurisdiction of a suit by the railway company to prevent landowners from installing private, at-grade railroad crossings arguably allowed by operation of Louisiana Civil Code article 689. The Fifth Circuit held that jurisdiction was not proper under 28 USC § 1331, because the declaratory judgment was sought to invalidate the landowners’ reliance on state law, and that, if such relief were sought by the railway in defense to actions brought by the landowners, they would clearly be state-law claims. The Fifth Circuit held that “the principle articulated in Shaw — that a plaintiff who seeks injunctive relief on preemption grounds necessarily presents a federal question — does not apply in a suit exclusively between private parties.” Slip op. at 9. The Court then held that the complete preemption doctrine did not provide subject matter jurisdiction.