UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 95-60011
Summary Calendar
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LARRY WEST,
a/k/a/ Larry D. Hooker,
a/k/a Larry D. Hooker West,
Petitioner-Appellant,
VERSUS
ED JACKSON,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
(2:94 CV 248 PS)
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September 13, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
West appeals the dismissal of his habeas petition. We find
the petition procedurally barred and affirm the district court
judgment.
I.
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Larry West, a/k/a, Larry D. Hooker, filed this third federal
habeas petition alleging that Mississippi Department of Corrections
officials improperly calculated his sentence by failing to give
credit for presentence time incarcerated.
The respondent argued the claim contained in the instant
petition could have been raised in West's first habeas petition and
should be dismissed as successive under Rule 9(b) since cause or
prejudice was not shown. Alternatively, the respondent argued
West's claim was without merit.
A magistrate judge recommended dismissal of the petition as
successive or, alternatively, as procedurally barred because West
failed to timely perfect an appeal to the Mississippi Supreme Court
from the trial court's dismissal of the identical claim being
raised in the instant petition.
The district court adopted the magistrate judge's report and
dismissed with prejudice. West now appeals this judgment.
II.
Because we affirm the district court judgment that the
petition is procedurally barred, we need not discuss the additional
grounds for dismissal.
Since West failed to perfect a timely appeal to the
Mississippi Supreme Court of this same claim, this issue has never
been presented for review to the state's highest court. Under
Mississippi Supreme Court Rule 4(a) this claim is now procedurally
barred from review. This procedural default bars federal habeas
review of this claim unless West meets an exception. Coleman v.
2
Thompson, 501 U.S. 722, 734 n.1 (1991). West must "demonstrate
cause for the default and actual prejudice as a result of the
violation of federal law, or demonstrate that failure to consider
the claims will result in a miscarriage of justice." Id. at 750.
The only reason offered by West for not taking a timely appeal
is the appeal process was too long and he chose to gather more
proof and resubmit it to the prison administrative staff. This
argument does not show adequate cause or a miscarriage of justice.
Thus the claim is procedurally barred from federal review.
AFFIRMED
3