IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30440
Summary Calendar
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LAWRENCE R. PITTMAN, SR.,
also known as Terry Hill,
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. 99-CV-2396-H
_________________________________________________________________
January 11, 2001
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Lawrence R. Pittman, Sr., Louisiana prisoner # 101703, appeals
the district court’s denial of his 28 U.S.C. § 2254 petition. The
district court granted Pittman a certificate of appealability on
the issue whether he “was denied due process through the use of a
jury instruction alleged to be unconstitutional under Cage v.
Louisiana,” 498 U.S. 39 (1990). The district court held that
*
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this opinion should not be published and is not precedent except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.
federal review of the Cage issue was procedurally barred because
the state court’s decision rested on an independent and adequate
state ground.
The last state court rendering a reasoned judgment in
Pittman’s case explicitly rejected his Cage claim based on an
independent and adequate state law procedural ground, namely, La.
Code Crim. Proc. Ann. art. 930.8. See Glover v. Cain, 128 F.3d
900, 902 (5th Cir. 1997). A habeas petitioner can overcome his
procedural default by showing “cause” for the default and
“prejudice” as a result of the alleged violation. See Moore v.
Roberts, 83 F.3d 699, 702 (5th Cir. 1996). Pittman’s claim that
the “cause” for his untimely application for relief was his
inability to timely obtain, despite several requests, a copy of the
jury instructions used at his trial is insufficient. Glover, 128
F.3d at 903-04.
A petitioner may nevertheless overcome a procedural bar
without demonstrating cause and prejudice by showing that failure
to consider the claim will result in a fundamental miscarriage of
justice, because, as a factual matter, he did not commit the crime
of conviction. See Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995).
Pittman has not shown that a fundamental miscarriage of justice
will occur if the court does not consider his claims because he is
actually innocent of the underlying offense. Pittman has therefore
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failed to show that the district court erred in holding that his
Cage claim was procedurally barred. Accordingly, the judgment of
the district court is
A F F I R M E D.
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