Dillon v. Johnson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10610
Summary Calendar
DAVID MORSE DILLON,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:96-CV-3271-X
- - - - - - - - - -
February 4, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
David Morse Dillon’s motions for appointment of counsel and
for summary judgment are DENIED.
On rehearing, we hold that the Texas Court of Criminal
Appeals’ opinion dismissing Dillon’s third state postconviction
application pursuant to TEX. CODE CRIM. P. Ann. art. 11.07, § 4
(West Supp. 1999), was not unexplained and demonstrates that the
court rejected the application for reasons unrelated to its
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-10610
-2-
merits. See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995);
Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (en
banc). Accordingly, the district court did not err in holding
that the procedural-default doctrine precludes federal review of
the claims raised in that third application. See Ylst v.
Nunnemaker, 501 U.S. 797, 801, 803 (1991); Cowart v. Hargett, 16
F.3d 642, 645 (5th Cir. 1994). Dillon has not demonstrated cause
for his procedural default or shown that the failure to review
his claims will result in a fundamental miscarriage of justice.
See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
AFFIRMED; MOTIONS DENIED.