Medford v. Cain ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-31041
Summary Calendar
_____________________
THOMAS MEDFORD,
Petitioner-Appellant,
versus
BURL CAIN, Acting Warden, Louisiana State
Penitentiary; RICHARD P. IEYOUB, Attorney
General, State of Louisiana,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA-95-1859-T)
_________________________________________________________________
March 17, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Thomas Medford, pro se, appeals the dismissal, without
prejudice, of his habeas petition. We AFFIRM.
I.
Medford, convicted of first-degree murder in 1985, is serving
a life sentence in the Louisiana State Penitentiary. While his
appeal from the denial of his second application for post-
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
conviction relief was pending before the Louisiana Supreme Court,
he sought federal habeas relief. The district court dismissed his
petition for failure to exhaust state remedies.
II.
A fundamental prerequisite to federal habeas relief under 28
U.S.C. § 2254 is the exhaustion of all claims in state court. Rose
v. Lundy, 455 U.S. 509, 519 (1982). "The exhaustion requirement is
excused only in those rare cases where exceptional circumstances of
peculiar urgency mandate federal court interference." Deters v.
Collins, 985 F.2d 789, 795 (5th Cir. 1993) (internal quotation
marks and citation omitted).
Medford contends that the exhaustion requirement should be
excused because (1) the Louisiana Supreme Court recently denied
relief to an applicant raising a claim identical to his; (2) the
Louisiana Supreme Court, in violation of the equal protection
clause, is claimed to have unfairly delayed ruling on his
application because he was proceeding pro se; and (3) a miscarriage
of justice will result because he is innocent of first-degree
murder.
Medford has not demonstrated that the circumstances of his
case justify an exception to the exhaustion requirement. His claim
of futility is without merit because, after the district court
dismissed his habeas petition, the Louisiana Supreme Court granted
his writ application and ordered a hearing to determine whether his
- 2 -
claim falls within an exception to the three-year time limit for
filing applications for post-conviction relief. His delay claim is
meritless because his claim had been pending in the Louisiana
Supreme Court for only nine months at the time the magistrate judge
considered that contention. Finally, our court has not recognized
a claim of innocence as an exceptional circumstance warranting an
exception to the exhaustion requirement. See Deters, 895 F.2d at
795 & n.16.
In his reply brief, Medford contends that he has technically
exhausted his state remedies because the Louisiana appellate courts
have held that he does not have any state remedies available, based
on the state appellate court's refusal to consider his petitions
because they were filed beyond the three-year limitations period.
We do not consider issues raised for the first time in a reply
brief. E.g., United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th
Cir. 1995). In any event, the Louisiana Supreme Court's grant of
partial relief to Medford demonstrates that this claim is
meritless.
III.
For the foregoing reasons, the judgment is
AFFIRMED.1
1
Medford's motion to hold his appeal in abeyance to give the
state court "a fair opportunity to correct the state courts'
discriminating practices" is DENIED.
- 3 -