UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30442 

THOMAS LEE WARD,

Petitioner-Appellant,

versus

BURL CAIN, Acting Warden, Louisiana

State Penitentiary, Angola,

Louisiana, 

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(May 15, 1995)

___________________________________________________

On Application for Certificate of Probable

Cause and Motion for Stay

Before POLITZ, Chief Judge, GARWOOD and SMITH, Circuit Judges:

PER CURIAM:

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.
 

1State v. Ward, 483 So.2d 578 (La.), cert. denied, 479 U.S.

871 (1986); Ward v. Whitley, 21 F.3d 1355 (5th Cir. 1994), cert.

denied, 115 S.Ct. 1257 (1995).

 

2The first petition was dismissed for failure to exhaust state

remedies and the second was denied.

 

3498 U.S. 39 (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.

 

4See Sullivan v. Louisiana, 113 S.Ct. 2078, 124 L.Ed. 2d 182

(1993); Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994), petition for

cert. filed (Apr. 7, 1995) (No. 94-8786); Nutter v. White, 39 F.3d

1154 (11th Cir. 1994). But see Skelton v. Whitley, 950 F.2d 1037

(5th Cir.), cert. denied, 113 S.Ct. 102 (1992).

 

5See Schlup v. Delo, 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). 

 

6 F.3d , 1995 WL 225184 (No. 95-30354) (Apr. 17, 1995)

(slip op. at 3462).

2

We do not repeat the factual background and procedural posture

of this case but refer 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
 

7Schlup; McCleskey v. Zant, 499 U.S. 467 (1991). In Sawyer v.

Whitley, 112 S.Ct. 2514, 120 L.Ed. 2d 269 (1992), the Court applied

the miscarriage of justice exception to a petitioner who claimed to

be actually innocent of the death penalty.

 

8See Schlup.

3

that the claim reasonably was available since the early 1980s. The

effect of James is to relegate Ward's efforts to avoid the

limitation of Rule 9(b) to the fundamental-miscarriage-of-justice

exception. As defined by the Supreme Court, that exception is

confined to cases of actual innocence, where the petitioner 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 would have found him guilty if given

a correct instruction.8 Accordingly, under controlling precedent

we may not find a miscarriage of justice. 

The application for a certificate of probable cause and the

motion for a stay are DENIED.

POLITZ, Chief Judge, 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 Scalia, to

be "no jury verdict of guilty-beyond-a-reasonable-doubt." Sullivan

v. Louisiana, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182, 189 (1993).

With respect to the holding of James v. Cain, 1995 WL 225184 (No.

95-30354) (Apr. 17, 1995), regarding the availability of a Cage

claim, I am mindful of the Louisiana Supreme Court's observation
4

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, 113 S.Ct. 2935 (1993).