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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30442
THOMAS LEE WARD,
Petitioner-Appellant,
versus
BURL CAIN, Acting Warden, Louisiana
State Penitentiary, Angola,
Louisiana,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(May 15, 1995)
___________________________________________________
On Application for Certificate of Probable
Cause and Motion for Stay
Before POLITZ, Chief Judge, GARWOOD and SMITH, Circuit Judges:
PER CURIAM:
Scheduled for execution between midnight and 3:00 a.m. on May
16, 1995, Thomas Lee Ward seeks a certificate of probable cause to
appeal the denial of his petition for habeas corpus and a stay of
his execution. Binding precedent precludes debate among jurists of
reason about a dispositive issue and we must therefore deny the
application for CPC and a stay.

We do not repeat the factual background and procedural posture
of this case but refer to prior opinions.1 In the petition at bar,
Ward's third,2 the sole claim is that his jury was given the
identical reasonable doubt instruction that the Supreme Court held
to be constitutionally infirm in Cage v. Louisiana.3 Assuming for
today's disposition that Cage is retroactive,4 the dispositive
issue is whether Ward has shown cause and prejudice, or
alternatively, a fundamental miscarriage of justice which would
satisfy the requirements of Rule 9(b) of the Rules Governing
Section 2254 Cases.5
In James v. Cain6 we very recently rejected the assertion of
cause for not raising a Cage claim in earlier petitions, finding
1State v. Ward, 483 So.2d 578 (La.), cert. denied, 479 U.S.
871 (1986); Ward v. Whitley, 21 F.3d 1355 (5th Cir. 1994), cert.
denied, 115 S.Ct. 1257 (1995).
2The first petition was dismissed for failure to exhaust state
remedies and the second was denied.
3498 U.S. 39 (1990). The only difference between the two
charges is clerical. Cage was decided while Ward's second habeas
petition was pending appeal. He unsuccessfully pursued relief
under Cage through the Louisiana state court system while we stayed
our proceedings. He sought remand to the district court to amend
his petition to add a Cage claim. That motion was denied.
4See Sullivan v. Louisiana, 113 S.Ct. 2078, 124 L.Ed. 2d 182
(1993); Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994), petition for
cert. filed (Apr. 7, 1995) (No. 94-8786); Nutter v. White, 39 F.3d
1154 (11th Cir. 1994). But see Skelton v. Whitley, 950 F.2d 1037
(5th Cir.), cert. denied, 113 S.Ct. 102 (1992).
5See Schlup v. Delo, 115 S.Ct. 851, 130 L.Ed. 2d 808 (1995).
Ward raised this issue in his petition and the state moved to
dismiss the petition under Rule 9(b).
6 F.3d , 1995 WL 225184 (No. 95-30354) (Apr. 17, 1995)
(slip op. at 3462).
2

that the claim reasonably was available since the early 1980s. The
effect of James is to relegate Ward's efforts to avoid the
limitation of Rule 9(b) to the fundamental-miscarriage-of-justice
exception. As defined by the Supreme Court, that exception is
confined to cases of actual innocence, where the petitioner shows,
as a factual matter, that he did not commit the crime of
conviction.7 Ward has made no showing that it is more likely than
not that no reasonable juror would have found him guilty if given
a correct instruction.8 Accordingly, under controlling precedent
we may not find a miscarriage of justice.
The application for a certificate of probable cause and the
motion for a stay are DENIED.
POLITZ, Chief Judge, concurring:
I fully concur with the foregoing, adding that I share the
concern voiced by the district court that a person may be executed
when there effectively appears, in the words of Justice Scalia, to
be "no jury verdict of guilty-beyond-a-reasonable-doubt." Sullivan
v. Louisiana, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182, 189 (1993).
With respect to the holding of James v. Cain, 1995 WL 225184 (No.
95-30354) (Apr. 17, 1995), regarding the availability of a Cage
claim, I am mindful of the Louisiana Supreme Court's observation
7Schlup; McCleskey v. Zant, 499 U.S. 467 (1991). In Sawyer v.
Whitley, 112 S.Ct. 2514, 120 L.Ed. 2d 269 (1992), the Court applied
the miscarriage of justice exception to a petitioner who claimed to
be actually innocent of the death penalty.
8See Schlup.
3

that the prevailing view during the 1980s was to reject challenges
to reasonable doubt instructions. State ex rel. Taylor v. Whitley,
606 So.2d 1292 (La. 1992), cert. denied, 113 S.Ct. 2935 (1993).
4