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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 93-1261
_______________________
RAMON MONTOYA,
Petitioner-Appellant,
versus
JAMES COLLINS, Director
Institutional Division Texas
Department of Corrections,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
(March 24, 1993)
Before POLITZ, Chief Judge, JOLLY, and JONES, Circuit Judges.
PER CURIAM:
Petitioner-Appellant Ramon Montoya, scheduled to be
executed after midnight tonight, Wednesday, March 24, 1993, has
applied to this court for a certificate of probable cause to
appeal. Concurrently, he seeks leave to appeal in forma pauperis
and a stay of execution. This is his second appearance in our
court, his earlier habeas appeal having been considered and denied
in Montoya v. Collins, 955 F.2d 279 (5th Cir. 1992), reh'g denied,
959 f.2d 969, cert. denied, ___ U.S. ___, 113 S. Ct. 820 (1993).
We deny CPC and a stay.

This court lacks jurisdiction to hear an appeal in this
case unless a certificate of probable cause is granted. Fed. R.
App. P. 22(b). To obtain a certificate of probable cause, Montoya
must "make a substantial showing of the denial of a federal right."
Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394
(1983). To sustain this burden, Montoya "must demonstrate that the
issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions
are adequate to deserve encouragement to proceed further."
Barefoot, 463 U.S. at 493 n.4, 103 S. Ct. at 3394 n.4.
The procedural background of this case is related in the
Fifth Circuit's above-cited previous opinion. After the decision
in that appeal, Montoya was scheduled for execution before sunrise
on January 27, 1993, and, having unsuccessfully proceeded for a
second time through the state courts on a habeas petition, was
granted a stay by the Supreme Court on January 26, pending
disposition of his petition of certiorari. On February 22, 1993,
the Supreme Court denied certiorari review and, on February 23, the
trial court rescheduled Montoya's execution for March 25, 1993.
In this, his second federal habeas petition, Montoya
raises a variant of the issue that the state and federal courts
have previously rejected: that his Sixth Amendment rights were
violated because "the state knowingly questioned the petitioner
after he was represented by counsel in the absence of his counsel."
In our previous opinion, we described his challenge as follows:
2

Montoya argues first that his interrogation by
the Dallas Police Department violated his
right to counsel under the Sixth Amendment and
the prophylactic rule of Michigan v. Jackson,
475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d
631 (1986).
Montoya, 955 F.2d at 282. Montoya's petition, filed in federal
district court on March 23, 1993, as much as admits duplication, as
it states:
The petitioner recognizes that the Federal
Courts frown upon successor petitions filed in
state habeas corpus proceedings. However, the
issue presented here was raised in an earlier
petition and the decision at that time was
based upon the petitioner's failure to
affirmatively assert his right to counsel at
the magistrate's hearing. This Court [sic],
nor did any other court, reach the issue that
the questioning of a defendant after he was
represented by counsel once the Sixth
Amendment rights had attached was a violation
of his constitutional rights. This petition
now gives this Court a second chance to enter
the proper finding. Simply put, after the
attachment of sixth amendment rights, a person
represented by counsel cannot be interrogated
without informing counsel.
There is no question that this filing of a federal
petition for habeas relief constitutes an abuse of the writ or a
successive petition under Rule 9(b), Rules Governing � 2254 Cases
in the United States District Courts. Unless a petitioner shows
cause and prejudice, a federal court may not reach the merits of
successive claims, which raise grounds identical to grounds heard
and decided on the merits in a previous petition, Kuhlmann v.
Wilson, 477 U.S. 436, 106 S. Ct. 2616 (1986), or new claims, not
raised in an earlier federal petition. McCleskey v. Zant, 499 U.S.
___, 111 S. Ct. 1454 (1991). However, "even if a state prisoner
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cannot meet the cause and prejudice standard a federal court may
hear the merits of the successive claims if the failure to hear the
claims would constitute a 'miscarriage of justice.'" Sawyer v.
Whitley, ___ U.S. ___, 112 S. Ct. 2514, 2518 (1992). The question
whether there has been a miscarriage of justice "is concerned with
actual as compared with legal innocence." Sawyer, ___ U.S. ___,
112 S. Ct. 2519. To fall within the actual innocence exception, a
habeas petitioner must show either that the trier of facts would
have entertained a reasonable doubt of his guilt, Kuhlmann v.
Wilson, 477 U.S. 436, at 454 n.17, 106 S. Ct. 2616, 2627 n.17
(1986), or where the alleged error pertains to the sentencing phase
of the capital trial, that no reasonable juror would have found the
petitioner eligible for a death penalty under applicable state law.
Sawyer v. Whitley, ___ U.S. at ___, 112 S. Ct. at 2517.
Montoya did not even allege in this second petition that
he could establish cause and prejudice for failing to raise his
newly-fashioned version of his Sixth Amendment claim in his
previous petition. He has not even alleged, much less
demonstrated, that a "miscarriage of justice" regarding actual
innocence or "actual innocence of the death penalty" could be
established in his case. This petition must accordingly be viewed
as an abuse of the writ or an impermissible successive petition and
may not be considered on its merits.
Further, because Montoya could have raised this issue at
a much earlier date in his criminal proceedings, and because he has
delayed raising it until 48 hours before the scheduled execution
4

time, it is arguable that even if the McCleskey test were
satisfied, equity would prevent the granting of habeas relief.
Gomez v. United States District Court for the Northern District of
California, ___ U.S. ___, 112 S. Ct. 1652, 1653 (1992).
For these reasons, Montoya has raised no issue on which
we may grant habeas corpus relief, hence, he has raised no issue
capable of debate among reasonable jurists.
The motion to proceed in forma pauperis is GRANTED;
motion for certificate of probable cause is accordingly DENIED;
motion for stay of execution is DENIED.
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