Pittman vs. Cain, (5th Cir. 2001)

Docket Number: 00-30440

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* Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30440 Summary Calendar LAWRENCE R. PITTMAN, SR., also known as Terry Hill, 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. 99-CV-2396-H January 11, 2001 Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM: * Lawrence R. Pittman, Sr., Louisiana prisoner # 101703, appeals the district court§ 2254 petition. The district court gra nted Pittman a certificate of appealability on the issue whether he Â“was denied due process through the use of a jury instruction alleged to be unconstitutional under Cage v. Louisiana ,Â” 498 U.S. 39 (1990). The district court held that federal review of the C age issue was procedurally barred becaus e the state courtÂ’s decision rested on an i ndependent and adequate state ground.

The last state court rendering a reasoned judgment in PittmanÂ’s case explicitly rejected his C age claim based on an independent and adequate state law procedural ground, namely, La. Code Crim. Proc. Ann. art. 930.8. S ee Glover v. Cain , 128 F.3d 9 00, 902 (5th Cir. 1997). A habeas petitioner can overcome his procedural default by showing Â“causeÂ” for the default and Â“prejudiceÂ” as a r esult of the alleged violation. S ee Moore v. Roberts , 83 F.3d 699, 702 (5th Cir. 1996). PittmanÂ’s claim that the Â“causeÂ” for his untimely application for relief was his inability to timely obtain, despite several requests, a copy of the jury instructions used at his trial is insufficient. Glover , 128 F.3d at 903-04. A petitioner may nevertheless overcome a procedural bar without demonstrating cause and prejudice by showing that failure to consider the claim will result in a fundamental miscarriage of justice, because, as a factual matter, he did not commit the crime of conviction. S ee Ward v. Cain , 53 F.3d 106, 108 (5th Cir. 1995).

Pittman has not shown that a fundamental miscarria ge of justice will occur if the court does not consider his claims because he is actually innocent of the underlying offense. Pittman has therefore failed to show that the district court erred in holding that his Cage claim was procedurally barred. Accordingly, the judgment of the district court is A F F I R M E D.