Holmes v. Waller ( 2007 )


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  •                                                          United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                   July 20, 2007
    
                                                               Charles R. Fulbruge III
                                                                       Clerk
                                 No. 06-60280
                               Summary Calendar
    
    
    WILLIE JAMES HOLMES,
    
                                          Petitioner-Appellant,
    
    versus
    
    DOLAN WALLER; WILKINSON COUNTY CORRECTIONAL CENTER; MISSISSIPPI
    DEPARTMENT OF CORRECTIONS; MIKE MOORE,
    
                                          Respondents-Appellees.
    
                             --------------------
                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                             USDC No. 3:03-CV-533
                             --------------------
    
    Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
    
    PER CURIAM:*
    
         Willie James Holmes was convicted of conspiracy to commit
    
    murder and murder less than capital and sentenced to serve life
    
    in prison.     Holmes filed the instant 28 U.S.C. § 2254 petition to
    
    challenge his convictions and sentences, and the district court
    
    denied the petition.    When reviewing the denial of a habeas
    
    petition, this court analyzes the district court’s findings of
    
    fact for clear error and its legal conclusions de novo.         Martinez
    
    v. Johnson, 
    255 F.3d 229
    , 237 (5th Cir. 2001).
    
    
         *
           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    this opinion should not be published and is not precedent except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. 06-60280
                                    -2-
    
         Holmes argues that his rights were violated at trial because
    
    the State proceeded on the theory that his coconspirator was the
    
    shooter, but the charges against this individual were later
    
    remanded.   The respondents argue that Holmes’s claims are
    
    procedurally barred.   The respondents are correct.   See Fairman
    
    v. Anderson, 
    188 F.3d 635
    , 641 (5th Cir. 1999); see also Stokes
    
    v. Anderson, 
    123 F.3d 858
    , 860-61 (5th Cir. 1997).    Holmes has
    
    not shown cause and prejudice to excuse this default, nor has he
    
    shown that a manifest miscarriage of justice would occur if the
    
    merits of these claims were not considered.   See Smith v.
    
    Johnson, 
    216 F.3d 521
    , 524 (5th Cir. 2000).   The judgment of the
    
    district court is AFFIRMED.