* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30962

Summary Calendar

 

LAWRENCE JENKINS,

Petitioner-Appellant,

versus

BURL CAIN, Warden,

Louisiana State Penitentiary,

Respondent-Appellee.

---------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 97-CV-1447-L

---------------------

March 11, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Lawrence Jenkins, Louisiana prisoner # 93157, requests a

certificate of appealability (COA) to appeal the district court’s

dismissal of his 28 U.S.C. § 2254 application for habeas corpus

relief as barred as untimely on state procedural grounds under

LA. CODE CRIM. PROC. art. 930.8. In his § 2254 application,

Jenkins argued that his due process rights were violated during 
No. 98-30962

- 2 -

jury selection, that evidence was improperly admitted, that the

jury was tainted because one of the jurors knew and had a 

relationship with the alleged victim, that the jury was

improperly influenced by the presence of women’s rights groups in

the courtroom, that the failure to give a special charge violated

due process, that the jury charge on reasonable doubt violated

due process, that the trial judge’s comments during the jury

charge violated due process, that the court improperly allowed

expert witnesses to testify beyond the scope of their

qualifications and to invade the province of the jury by

testifying as to the ultimate issue, and that his counsel was

ineffective based on inadequate investigation and consultation in

the case and his failure to prepare the defense of consent, to

provide expert testimony, or to obtain the grand jury transcript. 

Jenkins argues that his § 2254 petition is not based on the

claims which the state court found to be barred under LA. CODE

CRIM. PROC. art. 930.8. 

To obtain a COA, Jenkins must show that the district court

erred in denying his petition on a nonconstitutional ground,

here, the existence of an independent and adequate state

procedural bar, and must make a substantial showing of the denial

of a constitutional right. See Sonnier v. Johnson, 161 F.3d 941,

943 (5th Cir. 1998); Whitehead v. Johnson, 157 F.3d 384, 386 (5th

Cir. 1998). 

The district court erred in denying all of Jenkins’ claims

based on its determination that the last reasoned state court

opinion addressing these claims held that they were barred under
No. 98-30962

- 3 -

LA. CODE CRIM. PROC. art. 930.8. Only the two claims raised in

Jenkins’ 1994 state petition, namely, his claim of error in the

reasonable doubt instruction and his claim of ineffective

assistance based on his counsel’s failure to object to this

instruction, were denied by the state court on this basis. 

Jenkins did not raise the ineffective assistance claim in this

petition. Additionally, even though the issue of the validity of

the jury instruction on reasonable doubt was held to be

procedurally barred as untimely in Jenkins’ 1994 state petition,

it was timely raised in Jenkins’ 1991 state petition, and it was

addressed on the merits by the state court. Thus, Jenkins’

inclusion of this issue in his § 2254 petition and his assertion

that he is pursuing the claims raised in his 1991 state habeas

petition adequately raised this issue. As Jenkins’ claims are

not barred on independent and adequate state law grounds under

LA. CODE CRIM. PROC. art. 930.8, as found by the district court,

the merits of his claims must be examined. 

COA is GRANTED, the district court’s judgment denying

Jenkins’ habeas corpus petition is VACATED, and the case is

REMANDED to the district court for consideration of these claims. 

See Whitehead, 157 F.3d at 388.

MOTION GRANTED, JUDGMENT VACATED, and case REMANDED.