IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30170
Conference Calendar
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HORACE PIERSON,
Petitioner-Appellant,
versus
RICHARD STALDER ET AL.,
Respondents-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. CA-94-3474-I
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August 22, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Horace Pierson was convicted in 1973 of second degree murder
and sentenced to life without benefit of parole for twenty years.
After exhausting state remedies, he filed this petition for a
writ of habeas corpus arguing that his sentence violated the Ex
Post Facto Clause. The district court dismissed Pierson's
petition with prejudice pursuant to Rule 9(b) of the Rules
*
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that this opinion should not be published.
No. 95-30170
-2-
Governing Section 2254 Cases for abuse of the writ.
Pierson raises three issues on appeal: 1) whether his
petition should have been dismissed under Rule 9(b) when the
respondent did not claim that defense in the state's last highest
court; 2) whether his sentence is a violation of the Ex Post
Facto Clause; and 3) whether his guilty plea was as a result of
an unkept plea bargain.**
The fact that Pierson raised a similar claim in the context
of whether his guilty plea was voluntary demonstrates that the
claim was available to him and could have been raised in a
previous petition. Pierson's argument that the claim was
unavailable is false. Pierson's alleged lack of "legal
knowledge" does not constitute cause. Saahir v. Collins, 956
F.2d 115, 118-19 (5th Cir. 1992). Because there is no
constitutional right to counsel in a habeas proceeding,
ineffective inmate counsel in preparing his previous habeas
corpus petitions cannot constitute cause. See Johnson v.
Hargett, 978 F.2d 855, 859 (5th Cir. 1992), cert. denied, 113 S.
Ct. 1652 (1993). The State was not required to raise abuse of
**
Issue 2 goes to the merits of his claim, which this
court will not address given the affirmance of the district
court's dismissal for abuse of the writ. Issue 3 was not raised
in the district court. This court need not address issues not
considered by the district court. "[I]ssues raised for the first
time on appeal are not reviewable by this [C]ourt unless they
involve purely legal questions and failure to consider them would
result in manifest injustice." Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991) (internal quotations and citations omitted).
This issue was raised in one of Pierson's previous habeas
petitions dismissed for abuse of the writ in 1993. See Pierson
v. Ieyoub, Civil Action No. 93-3170. There would be no manifest
miscarriage of justice in refusing to consider it now.
No. 95-30170
-3-
the writ under Rule 9(b) in state court. This defense applies
only in federal court. Pierson has not shown cause. See
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
Even if the petitioner cannot show cause and prejudice,
failure to raise a claim in an earlier petition may be excused if
the petitioner can show that a fundamental miscarriage of justice
would result from failure to consider the claim. A fundamental
miscarriage of justice implies that a constitutional violation
probably caused the conviction of an innocent person. McCleskey,
499 U.S. at 494-95; Saahir, 956 F.2d at 119. Pierson has not
shown that a fundamental miscarriage of justice would occur.
The district court did not abuse its discretion in
dismissing Pierson's petition for abuse of the writ. Hudson v.
Whitley, 979 F.2d 1058, 1062 (5th Cir. 1992). The judgment of
the district court is AFFIRMED.