Filed: Jul. 11, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10062 Conference Calendar _ VINCENT LEE BAKER, Petitioner-Appellant, versus WAYNE SCOTT, Director, Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellee. - - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:94-CV-445-Y - - - - - - - - - - June 29, 1995 Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Texas prisoner Vincent Le
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10062 Conference Calendar _ VINCENT LEE BAKER, Petitioner-Appellant, versus WAYNE SCOTT, Director, Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellee. - - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:94-CV-445-Y - - - - - - - - - - June 29, 1995 Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Texas prisoner Vincent Lee..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10062
Conference Calendar
__________________
VINCENT LEE BAKER,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Dept. of Criminal Justice,
Institutional Division,
Respondent-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:94-CV-445-Y
- - - - - - - - - -
June 29, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Texas prisoner Vincent Lee Baker appeals the dismissal of
his habeas corpus petition as an abuse of the writ pursuant to
Rule 9(b), Rules Governing Section 2254 Cases in the U.S.
District Courts.
"A second or successive petition may be dismissed . . . if
new and different grounds are alleged, [if] the judge finds that
the failure of the petitioner to assert those grounds in a prior
petition constituted an abuse of the writ." Rule 9(b), Rules
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-10062
-2-
Governing Section 2254 Cases in the U.S. District Courts. "To
excuse his failure to raise [a] claim earlier, [a habeas
petitioner] must show cause for failing to raise it and prejudice
therefrom as those concepts have been defined in [the Supreme
Court's] procedural default decisions." McCleskey v. Zant,
499
U.S. 467, 494 (1991).
Baker does not challenge the district court's finding that
he did not contend in his previous petitions that his conviction
was invalid. In his petition, Baker indicated that he had raised
only jury misconduct as an issue in his second petition. This
court's order denying Baker a certificate of probable cause in
his previous appeal indicates that he did not contend that his
enhancement conviction was invalid.
Baker does not contend in his initial appellate brief that
he could show cause for not having raised in his previous
petitions his contention regarding the invalidity of his prior
conviction. This court will not review issues that are initially
raised in a reply brief. United States v. Prince,
868 F.2d 1379,
1386 (5th Cir.), cert. denied,
493 U.S. 932 (1989). This court
need not consider the contentions in Baker's reply brief.
Baker has not shown cause for his failure to raise in his
previous petitions his contention that his enhancement conviction
is invalid. Nor has he made a colorable showing of factual
innocence. Baker does not allege that he is innocent of
aggravated robbery, only that he should not have been convicted
of the car-theft offense used to enhance the robbery sentence.
Because Baker's appeal is frivolous, it is DISMISSED.
No. 95-10062
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No. 95-10062
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Additionally, and for the same reasons, Baker's petition for
mandamus also is DISMISSED.