In Re: Clark , 224 F. App'x 411 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 07-40324 Fifth Circuit
In Re: JAMES LEE CLARK,
FILED
April 9, 2007
Movant
Charles R. Fulbruge III
________________________________________________ Clerk
Motion for an order authorizing the United States District Court
for the Eastern District of Texas, Sherman, to consider a
successive 28 U.S.C. § 2254 application
Before DAVIS, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:1
The movant, James Lee Clark, has requested authorization to
file a successive habeas petition alleging that the judgment
against him was void for improper jury instructions, a stay of
execution pending resolution of this appeal, and a stay of
execution pending the disposition of Schriro v. Landrigan, a case
presently before the United States Supreme Court.
Clark’s successive habeas petition is barred by the
Antiterrorism and Effective Death Penalty Act (AEDPA). Clark has
not shown that his claim is based on either a new rule of
constitutional law made retroactive by the Supreme Court or that it
could not have been discovered previously through due diligence. 28
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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this opinion should not be published and is not precedent except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.
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U.S.C. § 2244. Clark cites no direct authority for his position
that a challenge to his conviction as void is not subject to
AEDPA’s requirements. The case Clark references as involving a
similar issue, Rhode v. Olk-Long, 84 F.3d 284 (8th Cir. 1996),
dealt with a conviction invalid for lack of jurisdiction, which has
not been alleged here. The motions for authorization to file a
successive habeas petition and to stay execution pending resolution
of this claim are DENIED.
Clark has also moved to stay execution pending the Supreme
Court’s decision in Schriro v. Landrigan. The motion has presented
nothing to controvert Clark’s previous admission that he elected
not to present the testimony of witnesses his counsel had
subpoenaed after full counseling by his attorney. Clark v. Johnson,
227 F.3d 273, 284 (5th Cir. 2000). Our review of the issues pending
before the Supreme Court in Schriro indicates that it involves
distinct issues and facts that do not implicate our previous
decision. The motion to stay execution pending the decision in
Schriro is DENIED.
The movant’s unopposed motion to proceed in forma pauperis in
any further action in this case is GRANTED.
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