UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-2389
Summary Calendar
__________________
CHARLES R. RENZ,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
______________________________________________
Appeals from the United States District Court for the
Southern District of Texas
______________________________________________
(July 27, 1994)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant Charles R. Renz (Renz) appeals dismissal
of his 28 U.S.C. § 2254 habeas corpus petition. We affirm.
Facts and Proceedings Below
On March 14, 1981, Renz, an ex-Marine, entered a bar in
Houston, Texas. While in the bar, Renz drank beer and played pool.
Later, Renz approached two other patrons, interrupted their game of
pool, and became abusive. As a result, Renz was asked to leave the
bar and was escorted to the door. Approximately thirty seconds
after Renz left the bar, someone ran into the club shouting, "He
has a gun." Robert Trevino (Trevino) and another patron
immediately ran to the door to hold the bar door shut. Thereafter
Renz fired shots through the door, near the doorknob, with one of
the bullets fatally striking Trevino. Renz testified he was only
trying to frighten the bar's occupants and that he believed the
door would stop the bullets. Witnesses testified that as they held
the door shut they felt someone try to open it from the outside.
On September 30, 1991, a Texas jury found Renz guilty of
murder in the first degree. He was sentenced to thirty years'
imprisonment in the Texas Department of Corrections. The
conviction was affirmed by the Thirteenth Texas Court of Appeals.
Thereafter, Renz petitioned the Texas Court of Criminal Appeals for
discretionary review, which was refused on October 26, 1984. Renz
then filed an application for a state writ of habeas corpus, which
was denied by the Texas Court of Criminal Appeals on March 11,
1987.
After Renz exhausted his state remedies in accordance with 28
U.S.C. § 2254 (b) and (c), he petitioned the court below for a writ
of habeas corpus. On May 1, 1992, the district court granted
summary judgment in favor of the state on all claims. Renz
appealed and this Court has previously dismissed the appeal as to
all issues except Renz's claims regarding insufficiency of the
evidence.1
1
In his habeas corpus petition, Renz alleged ineffective
assistance of counsel, insufficiency of the evidence, and
numerous due process violations. On December 8, 1992, this Court
dismissed the appeal as to all ineffective assistance of counsel
2
Discussion
Renz did not raise the issue of insufficiency of the evidence
during his direct appeal of his state conviction. He did, however,
raise the issue in his petition for state habeas relief. The Texas
habeas trial court refused to reach the issue because under Texas
law a claim regarding sufficiency of the evidence may be raised on
direct appeal but not in a habeas proceeding. See ex parte
McWilliams, 634 S.W.2d 815, 818 (Tex. Crim. App. 1980), cert.
denied, 459 U.S. 1036 (1982). The Texas Court of Criminal Appeals
denied relief "on the findings of the trial court." Renz's
failure to raise this claim on direct appeal constituted a
procedural default under state law. Clark v. State of Texas, 788
F.2d 309, 310 (5th Cir. 1986).
When a state court denies a prisoner's claims based on an
independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate
(1) cause for the default and prejudice as a result of the alleged
violation of federal law, or (2) a resulting fundamental
miscarriage of justice. Coleman v. Thompson, 111 S.Ct. 2546, 2565
(1991). Renz has not offered any reason for his failure to raise
his insufficiency of the evidence claim on direct appeal.
Therefore, Renz has failed to establish a sufficient cause for his
failure to present this claim in the earlier direct appeal.
Accordingly, this Court need not consider the matter of prejudice.
McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991).
and due process claims.
3
To grant a habeas petition due to a manifest miscarriage of
justice, the petitioner "must show that a constitutional violation
prevented him from showing his actual innocence" or "resulted in
the conviction." Ellis v. Collins, 956 F.2d 76, 80 (5th Cir.),
cert. denied, 112 S.Ct. 1285, (1992). Renz's remaining claim does
not allege that a constitutional violation either brought about or
contributed to his conviction or prevented him from proving his
innocence. Instead, Renz simply concludes that his conviction is
based upon insufficient evidence and thus the conviction is
unconstitutional. As Renz's remaining claim does not allege that
his conviction resulted from or was contributed to by any
constitutional violation, and does not assert that the claimed
insufficiency of the evidence is wholly or partly the result of any
constitutional violation, Renz has failed to establish any basis on
which to avoid the procedural bar which precludes consideration of
his claim of insufficient evidence. See Clark; Ellis.
For the foregoing reasons the district court's judgment is
AFFIRMED.
4