IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40967
USDC No. 1:97-CV-433
JAMES ISHMAEL TIBBS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
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April 20, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
James Ishmael Tibbs, Texas prisoner # 702590, seeks a
certificate of appealability (COA) from the denial of his
petition filed pursuant to 28 U.S.C. § 2254. This court issues a
COA only if the petitioner has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Tibbs
fails to make this required showing with any of the following
claims: 1) illegal extradition from Oklahoma to Texas;
2) illegal arrest and detention in Oklahoma; 3) ineffective
*
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that this opinion should not be published and is not precedent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.
O R D E R
No. 98-40967
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assistance of counsel on appeal; 4) his sentence violates the
Eighth Amendment’s prohibition against cruel and unusual
punishment; 5) the trial court’s erroneous evidentiary hearings
rendered his trial fundamentally unfair; and 6) the Antiterrorism
and Effective Death Penalty Act did not apply to his case. The
court is without jurisdiction to consider Tibbs’ claims of
ineffective assistance of trial counsel as they are raised for
the first time in his request for a COA in this court. See
Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).
Accordingly, we DENY a COA on these issues.
A COA is GRANTED IN PART on the issue whether a nonjuror was
present during the punishment phase of deliberations, and if so,
whether this amounted to jury contamination. See Remmer v.
United States, 347 U.S. 227, 229 (1954). The case is VACATED AND
REMANDED to the district court for further proceedings on this
issue.
COA GRANTED IN PART AND DENIED IN PART; VACATED AND
REMANDED.