53 F.3d 106 | 5th Cir. | 1995
Lead Opinion
Scheduled for execution between midnight and 3:00 a.m. on May 16, 1995, Thomas Lee Ward seeks a certificate of probable 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 we must therefore deny the application for CPC and a stay.
We do not repeat the factual background and procedural posture of this case but refer to prior opinions.
The application for a certificate of probable cause and the motion for a stay are DENIED.
. 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 clerical. Cage was decided while Ward’s second habeas petition was pending appeal. He unsuccessfully pursued relief under Cage through the Louisiana state court system while we stayed our proceedings. He sought remand to 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 of justice to a petitioner who claimed to be actually ihnocent of the death penalty.
.See Schlup.
Concurrence Opinion
concurring:
I fully concur with the foregoing, adding that I share the concern voiced by the district court that a person may be executed when there effectively appears, in the words 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 Supreme 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).