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.1 State v . Ward , 483 So.2d 578 (La.), c ert

. denied

, 479 U.S.

871 (1986); W ard v. Whitley

, 21 F.3d 1355 (5th Cir. 1994), cert

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

2 The first petition was dismissed for failure to exhaust state

remedies and the second was denied.

3 498 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.

4 See 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).

5 See 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 gi ven the

identical reasonable doubt instruction that the Supreme Court held

to be constitutionally infirm in Cage v. Louisiana

. 3 Assuming for

today's dispositi on that C age is retroactive, 4 the dispositive

issue is whether Ward h as shown cause and prejudice, or

alternativ ely, a fundamental miscarriage of justice which would

satisfy the requirements of Rule 9(b) of the Rules Go verning

Section 2254 Cases. 5

In James v. C ain 6 we very recently rejected the assertion of

cause for not raising a Cage claim in earlier petitions, finding7 Schlup ; McCleskey v. Zant

, 499 U.S. 467 (1991). In S awyer 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.

8 See 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 pro bable 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." S ullivan

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 availabil ity of a C age

claim, I am mindful of the Louisiana Supreme Court's observation4

that the prevailing view during the 1980s was to reject challenges

to reasonable doubt instructions. S tate ex rel. Taylor v. Whitley

,

606 So.2d 1292 (La. 1992), cert

. denied , 113 S.Ct. 2935 (1993).