Ward v. Cain

May 16, 1995
95-30442
Reporters:
,
Before:
Politz

Lead Opinion

PER CURIAM:

Scheduled for execution between midnight and 3:00 a.m. on May 16, 1995, Thomas Lee Ward seeks a certificate of prоbable cause to appeal the denial of his petition for habeas corpus and a stay of his execution. Binding precedent precludes debate among jurists of reason about a dispositive issue and wе must therefore deny the application for CPC and a stay.

We do not repeat the factual backgrоund and procedural posture of this case but refеr to prior opinions.1 In the petition at bar, Ward’s third,2 the sole claim is that his jury was given the identical reasonable doubt ‍​​‌​​​‌​‌‌​​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌‌​​‌​​‌‌‌​‌‌​‌‍instruction that the Supreme Court held to be constitutionally infirm in Cage v. Louisiana.3 Assuming for today’s disposition that Cage is retroactive,4 the dispositive issue is whether Ward has shown cause and prejudice, or alternatively, a fundamental miscarriage of justice which would satisfy the requirements of Rule 9(b) of the Rules Governing Section 2254 Cases.5

In James v. Cain6 we very recently rejected the assertion of cause for not raising a Cage claim in earlier petitions, finding that the claim reasonably ‍​​‌​​​‌​‌‌​​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌‌​​‌​​‌‌‌​‌‌​‌‍was available since the early 1980s. The effect of James is to relegate Wаrd’s efforts to avoid the limitation of Rule 9(b) to the fundamentаl-miscarriage-of-justice exception. As defined by thе Supreme Court, that exception is confined to cases of actual innocence, where the рetitioner shows, as a factual matter, that he did not commit the crime of conviction.7 Ward has made no showing that it is more likely than not that no reasonable juror wоuld have found him guilty if given a correct instruction.8 Accordingly, undеr controlling precedent ‍​​‌​​​‌​‌‌​​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌‌​​‌​​‌‌‌​‌‌​‌‍we may not find a miscarriаge of justice.

The application for a certificate of probable cause and the motiоn for a stay are DENIED.

Notes

. State v. Ward, 483 So.2d 578 (La.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 168 (1986); Ward v. Whitley, 21 F.3d 1355 (5th Cir. 1994), cert. denied, — U.S.-, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995).

. The first petition was dismissed for failure to exhaust state remedies and the second was denied.

. 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The only difference between ‍​​‌​​​‌​‌‌​​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌‌​​‌​​‌‌‌​‌‌​‌‍the two charges is сlerical. Cage was decided while Ward’s second habeаs petition was pending appeal. He unsuccessfully pursued relief under Cage through the Louisiana state court system while we stayed our proceedings. He sought remand tо the district court to amend his petition to add a Cage claim. That motion was denied.

. See Sullivan v. Louisiana, - U.S. -, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Adams v. Aiken, 41 F.3d 175 (4th Cir.1994), cert. denied, -U.S.-, 115 S.Ct. 2281, 132 L.Ed.2d 284 (1995); Nutter v. White, 39 F.3d 1154 (11th Cir.1994). But see Skelton v. Whitley, 950 F.2d 1037 (5th Cir.), cert. denied, -U.S. -, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992).

. See Schlup v. Delo, - U.S. —-, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Ward raised this issue in his petition and the ‍​​‌​​​‌​‌‌​​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌‌​​‌​​‌‌‌​‌‌​‌‍state moved to dismiss the petition under Rule 9(b).

. 50 F.3d 1327 (5th Cir.1995).

. Schlup; McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In Sawyer v. Whitley, - U.S. -, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), the Court applied the miscarriage оf justice to a petitioner who claimed to be аctually ihnocent of the death penalty.

.See Schlup.





Concurrence Opinion

POLITZ, Chief Judge,

concurring:

I fully conсur with the foregoing, adding that I share the concern voiced by the district court that a person may be exeсuted when there effectively appears, in the wоrds of Justice Sealia, to be “no jury verdict of guilty-beyond-a-reasonable-doubt.” Sullivan v. Louisiana, — U.S.-,-, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182, 189 (1993). With respect to the holding of James v. Cain, 50 F.3d 1327 (5th Cir.1995), regarding the availability of a Cage claim, I am mindful of the Louisiana Suрreme Court’s observation that the prevailing view during the 1980s was to reject challenges to reasonable doubt instructions. State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, — U.S. -, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993).