Spotville v. Cain ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31248
Summary Calendar
JEWEL SPOTVILLE,
Plaintiff-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 95-CV-2585-C
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October 30, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jewel Spotville, Louisiana prisoner # 76147, filed a 28
U.S.C. § 2254 petition claiming that he was convicted of
aggravated rape by a nonunanimous jury verdict. The district
court dismissed his petition as an abuse of the writ under Rule
9(b) of the Rules Governing Habeas Corpus Proceedings. See
McCleskey v. Zant, 499 U.S. 467, 487-96 (1990)(holding that new
claims will be heard in a successive petition only upon showing
cause and prejudice). The district court determined that
Spotville failed to show cause for failing to raise the
*
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that this opinion should not be published and is not precedent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.
No. 99-31248
-2-
underlying constitutional issue in any of his four previous
petitions. Nevertheless, the district court granted a
certificate of appealability (COA) on the underlying issue
whether Spotville’s counsel rendered ineffective assistance
because he failed to object to the alleged nonunanimous jury
verdict. Spotville also has filed a motion requesting copies of
the trial transcripts and requesting in particular those portions
of the transcript relating to the polling of the jury. He
asserts that two members of the jury did not concur with the
guilty verdict.
The district court has dismissed with prejudice Spotville’s
petition as procedurally barred and granted a COA on the
underlying constitutional issue. When it granted the COA, the
district court indicated that it had denied Spotville’s petition.
By contrast, the final judgment indicated a dismissal based on
the Rule 9(b) bar. If Spotville’s petition is barred by Rule
9(b), then the district court properly dismissed the petition and
there was no need to address the underlying merits. See Montoya
v. Collins, 988 F.2d 11, 12 (5th Cir. 1993). Because of this
apparent inconsistency in the district court’s rulings, the case
is REMANDED to the district court for the limited purpose of
clarifying its COA. Upon entering a clarifying order, the
district court should return the case to this court for further
proceedings.
REMANDED.