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Baker v. Scott, 95-10062 (1995)

Court: Court of Appeals for the Fifth Circuit Number: 95-10062 Visitors: 10
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
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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that this opinion should not be published.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
     -3-
                          No. 95-10062
                               -4-


Additionally, and for the same reasons, Baker's petition for

mandamus also is DISMISSED.

Source:  CourtListener

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