UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-2389

Summary Calendar

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CHARLES R. RENZ,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

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Appeals from the United States District Court for the

Southern District of Texas

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(July 27, 1994)

 

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Charles R. Renz (Renz) appeals dismissal

of his 28 U.S.C. § 2254 habeas corpus petition. We affirm.

Facts and Proceedings Below

On March 14, 1981, Renz, an ex-Marine, entered a bar in

Houston, Texas. While in the bar, Renz drank beer and played pool.

Later, Renz approached two other patrons, interrupted their game of

pool, and became abusive. As a result, Renz was asked to leave the

bar and was escorted to the door. Approximately thirty seconds
1 In his habeas corpus petition, Renz alleged ineffective

assistance of counsel, insufficiency of the evidence, and

numerous due process violations. On December 8, 1992, this Court

dismissed the appeal as to all ineffective assistance of counsel

2

after Renz left the bar, someone ran into the club shouting, "He

has a gun." Robert Trevino (Trevino) and another patron

immediately ran to the door to hold the bar door shut. Thereafter

Renz fired shots through the door, near the doorknob, with one of

the bullets fatally striking Trevino. Renz testified he was only

trying to frighten the bar's occupants and that he believed the

door would stop the bullets. Witnesses testified that as they held

the door shut they felt someone try to open it from the outside.

 On September 30, 1991, a Texas jury found Renz guilty of

murder in the first degree. He was sentenced to thirty years'

imprisonment in the Texas Department of Corrections. The

conviction was affirmed by the Thirteenth Texas Court of Appeals.

Thereafter, Renz petitioned the Texas Court of Criminal Appeals for

discretionary review, which was refused on October 26, 1984. Renz

then filed an application for a state writ of habeas corpus, which

was denied by the Texas Court of Criminal Appeals on March 11,

1987. 

After Renz exhausted his state remedies in accordance with 28

U.S.C. § 2254 (b) and (c), he petitioned the court below for a writ

of habeas corpus. On May 1, 1992, the district court granted

summary judgment in favor of the state on all claims. Renz

appealed and this Court has previously dismissed the appeal as to

all issues except Renz's claims regarding insufficiency of the

evidence.1
and due process claims.

3

Discussion

Renz did not raise the issue of insufficiency of the evidence

during his direct appeal of his state conviction. He did, however,

raise the issue in his petition for state habeas relief. The Texas

habeas trial court refused to reach the issue because under Texas

law a claim regarding sufficiency of the evidence may be raised on

direct appeal but not in a habeas proceeding. See ex parte

McWilliams, 634 S.W.2d 815, 818 (Tex. Crim. App. 1980), cert.

denied, 459 U.S. 1036 (1982). The Texas Court of Criminal Appeals

denied relief "on the findings of the trial court." Renz's

failure to raise this claim on direct appeal constituted a

procedural default under state law. Clark v. State of Texas, 788

F.2d 309, 310 (5th Cir. 1986). 

When a state court denies a prisoner's claims based on an

independent and adequate state procedural rule, federal habeas

review of the claims is barred unless the prisoner can demonstrate

(1) cause for the default and prejudice as a result of the alleged

violation of federal law, or (2) a resulting fundamental

miscarriage of justice. Coleman v. Thompson, 111 S.Ct. 2546, 2565

(1991). Renz has not offered any reason for his failure to raise

his insufficiency of the evidence claim on direct appeal.

Therefore, Renz has failed to establish a sufficient cause for his

failure to present this claim in the earlier direct appeal.

Accordingly, this Court need not consider the matter of prejudice.

McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991).
4

 To grant a habeas petition due to a manifest miscarriage of

justice, the petitioner "must show that a constitutional violation

prevented him from showing his actual innocence" or "resulted in

the conviction." Ellis v. Collins, 956 F.2d 76, 80 (5th Cir.),

cert. denied, 112 S.Ct. 1285, (1992). Renz's remaining claim does

not allege that a constitutional violation either brought about or

contributed to his conviction or prevented him from proving his

innocence. Instead, Renz simply concludes that his conviction is

based upon insufficient evidence and thus the conviction is

unconstitutional. As Renz's remaining claim does not allege that

his conviction resulted from or was contributed to by any

constitutional violation, and does not assert that the claimed

insufficiency of the evidence is wholly or partly the result of any

constitutional violation, Renz has failed to establish any basis on

which to avoid the procedural bar which precludes consideration of

his claim of insufficient evidence. See Clark; Ellis.

For the foregoing reasons the district court's judgment is

 AFFIRMED.