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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________
No. 93-2493
_____________________________
MARKHAM DUFF-SMITH,
Petitioner-Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal Justice,
Institutional Division
Respondent-Appellee.
_______________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
_______________________________________________________
(June 28, 1993)
Before POLITZ, Chief Judge, GARWOOD and JOLLY, Circuit Judges.
Per Curiam:
Petitioner-Appellant Markham Duff-Smith, scheduled to be
executed after midnight tonight, Monday, June 28, 1993, has applied
to this court for a certificate of probable cause to appeal.
Concurrently, he seeks a stay of execution. This is his second
habeas appeal, his earlier habeas appeal having been considered and
denied in Duff-Smith v. Collins, 973 F.2d 1175 (5th Cir. 1992),
reh'g denied, Nov. 13, 1992, cert. denied, 113 S.Ct. 1958 (1993).1
We deny both the motion for CPC and the motion for stay of
execution.
A certificate of probable cause is a jurisdictional
1 That opinion sets out in greater detail Duff-Smith's
procedural history through both the state and federal courts.
1

prerequisite for our consideration of this appeal.2 To obtain a
certificate of probable cause Duff-Smith must "make a substantial
showing of the denial of a federal right."3 To make such a
showing, he "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."4
Markham Duff-Smith was convicted and sentenced to death for
the capital murder of his adoptive mother, Gertrude Zabolio. The
conviction and sentence were affirmed by the Texas Court of
Criminal Appeals.5 His first state habeas petition was filed in
1986. After conducting an evidentiary hearing, the trial court
entered findings of fact and conclusions of law denying all relief.
The Texas Court of Criminal Appeals adopted those findings and
denied the petition. Duff-Smith then sought federal habeas corpus
relief. Another evidentiary hearing was conducted, and the
district court denied relief, adopting the recommendations of the
magistrate judge. On appeal, we affirmed the denial of the writ,
addressing in detail each issue raised.6
Whether a successive federal habeas petition raises grounds
2 Fed.R.App.P. 22(b).
3 Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (citations
omitted).
4 Id. at 893 n.4 (citations omitted).
5 Duff-Smith v. State, 685 S.W.2d 26 (Tex.Crim.App.), cert.
denied, 474 U.S. 865 (1985).
6 973 F.2d at 1175-84.
2

identical to those already heard and decided on the merits in a
previous petition, or raises new grounds not raised in the previous
petition, a federal court may not reach the merits thereof unless
the petitioner shows cause and prejudice.7 To demonstrate "cause,"
the petitioner must demonstrate that "some objective factor
external to the defense impeded counsel's efforts" to raise the
claim in the initial petition.8 "A failure to raise a claim in the
first petition may not be excused for cause if the claim was
reasonably available at that time."9 Absent demonstrated cause and
prejudice, "the failure to raise a claim in a prior habeas petition
may be overlooked only when a constitutional violation probably has
resulted in the conviction of one innocent of the crime."10
In the present habeas petition, Duff-Smith raises several
claims which were raised in the first petition. In addition, he
advances several claims which he characterizes as "new" but which
are not new, despite counsel's valiant efforts to establish to the
contrary. The petition founders on Rule 9(b) of the Rules
Governing � 2254 Cases.
The motion for a certificate of probable cause is DENIED.
The motion for a stay of execution is DENIED.
7 Rules Governing � 2254 Cases in the United States
District Courts 9(b); McClesky v. Zant, 111 S. Ct. 1454 (1991)
(new claims); Kuhlmann v. Wilson, 477 U.S. 436 (1986) (claims
already raised).
8 McClesky.
9 Selvage v. Collins, 975 F.2d 131, 133 (5th Cir. 1992),
cert. denied, 1993 WL 414472 (June 1, 1993).
10 Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir. 1993).
3