Rollins v. Cain ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30320
Summary Calendar
SYLVESTER ROLLINS,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana
State Penitentiary,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 96-CV-1395-M
_________________________________________________________________
June 18, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Sylvester Rollins, a Louisiana prisoner (# 76405), appeals
from the dismissal of his third 28 U.S.C. § 2254 habeas petition as
abusive and successive under Rule 9(b) of the Rules Governing
Section 2254 Proceedings.
This court reviews a dismissal under Rule 9(b) for abuse of
discretion. Herbst v. Scott, 42 F.3d 902, 905-06 (5th Cir. 1995).
A court may not reach the merits of a habeas petition raising
either claims identical to those raised and rejected in a previous
petition or new grounds not previously raised, unless the
*
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this opinion should not be published and is not precedent except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.
petitioner establishes “cause” for not raising the claim in a prior
petition and “prejudice” if the court fails to consider the new
point. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
Rollins’s claim that a jury instruction shifted the burden of proof
in violation of Sandstrom v. Montana, 442 U.S. 510 (1979), was
successive in that it had already been raised in Rollins’s second
§ 2254 petition in 1981. Pretermitting the question whether
Rollins has shown “cause” for raising the Sandstrom argument for a
second time, he has not shown “cause” for having failed to raise it
in his first § 2254 petition in 1975. See McCleskey, 499 U.S. at
493-94; Proctor v. Butler, 831 F.2d 1251, 1253-54 (5th Cir. 1987)
(although Sandstrom was not issued until 1979, the legal basis for
Sandstrom was “reasonably available” as a foreseeable extension of
In re Winship, 397 U.S. 358 (1970)).
As for Rollins’s claim that his life sentence is based on an
unconstitutionally vague statute, he waived any objection to the
district court’s conclusion that such claim was abusive. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987); FED. R. APP. P. 28(a)(6).
The district court did not abuse its discretion in dismissing
Rollins’s third § 2254 petition under Rule 9(b).
A F F I R M E D.
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