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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 01-40473
___________________________
IN RE JUAN RAUL GARZA,
Movant.
___________________________________________________
MOTION FOR AN ORDER AUTHORIZING THE
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS, BROWNSVILLE DIVISION,
TO CONSIDER A SUCCESSIVE HABEAS 28 U.S.C. § 2255 APPLICATION
___________________________________________________
May 30, 2001
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Juan Raul Garza is scheduled for
execution on June 19, 2001. He seeks this court's permission under
28 U.S.C. § 2255 to file a successive motion to vacate his
sentence. Because Garza does not meet the standards set forth
under that statute, leave to file the successive petition is
DENIED.
I.
On July 29, 1993, Garza was convicted by a jury of drug
trafficking, money laundering, engaging in a continuing criminal
enterprise, and three counts of killing in furtherance of a
continuing criminal enterprise. In accordance with the jury's
recommendation after a punishment hearing, the district court
sentenced Garza to death. This court affirmed the conviction and

sentence, United States v. Flores, 63 F.3d 1342 (5th Cir. 1995),
and denied rehearing, United States v. Garza, 77 F.3d 481 (5th Cir.
1995). The facts of Garza's offenses are set forth in that
opinion. The Supreme Court denied Garza's petition for writ of
certiorari, United States v. Garza, 519 U.S. 825 (1996), and his
petition for rehearing, United States v. Garza, 519 U.S.
1022(1996).
Garza filed his first § 2255 motion to vacate his sentence in
1997. That petition was denied, and this court denied Garza's
petition to appeal that decision. United States v. Garza, 165 F.3d
312 (5th Cir. 1999). The Supreme Court denied certiorari. United
States v. Garza, 528 U.S. 1006 (1999).
II.
In order to file a successive petition for review under 28
U.S.C. § 2255, Garza must demonstrate either: "(1) newly discovered
evidence that, if proven and reviewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant
guilty of the offense; or (2) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court
that was previously unavailable." 28 U.S.C. § 2255 (2000); Reyes-
Requena v. United States, 243 F.3d 893 (5th Cir. 2001). Garza's
sole claim, which falls under the second prong of the test, is
based on the Supreme Court's recent decision in Shafer v. South
Carolina, 121 S.Ct. 1263 (2001). Shafer clarified the application
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of the Supreme Court's earlier decision in Simmons v. South
Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), to South Carolina's
death penalty procedures. Relying on Shafer, Garza argues that the
trial court's failure to instruct Mr. Garza's sentencing jury that
the court was required to sentence him to life without the
possibility of parole if the jury did not sentence him to death,
violated his rights under the Due Process Clause of the Fifth
Amendment to the United States Constitution. However, Shafer does
not create a new rule of constitutional law. Neither does it
expressly declare the rule retroactively applicable to cases on
collateral review or apply the rule in a collateral proceeding. In
re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). In addition, the rule
Garza seeks to apply was not "previously unavailable." Garza has
already been afforded full review in his original direct appeal of
the Simmons claims he seeks to present in this successive motion.
III.
As Garza has not met the statutory requirements, his motion
for authorization to file a successive 28 U.S.C. § 2255 motion is
therefore DENIED. We also DENY Garza's motion for stay of
execution.*
*We grant Garza's motion for appointment of counsel.
3