Reginald Williams v. Department of Corrections ( 2011 )

Case: 10-30628 Document: 00511635718 Page: 1 Date Filed: 10/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 18, 2011
No. 10-30628
Summary Calendar Lyle W. Cayce
Clerk
REGINALD WILLIAMS,
Petitioner-Appellant
v.
DEPARTMENT OF CORRECTIONS,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-1889
Before JONES, Chief Judge and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Reginald Williams, Louisiana prisoner # 94495, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition, challenging his conviction for second-
degree kidnapping. The district court granted a certificate of appealability on
the issue whether Williams’s claim that the state appeals court violated his due
process rights by affirming his conviction under a different subsection of the
kidnapping statute than that alleged in the bill of information was procedurally
barred. Williams does not identify any error in the district court’s dismissal of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-30628 Document: 00511635718 Page: 2 Date Filed: 10/18/2011
No. 10-30628
his claim as procedurally barred. Accordingly, he has waived the issue. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Even if he did not waive the issue, he has not shown that the district court
erred in dismissing his claim as procedurally barred. The state district court
dismissed his state habeas application raising the claim as untimely; the state
appeals court and the Louisiana Supreme Court denied his writ applications,
citing LA. CODE CRIM. P. arts. 930.8 and 930.4(A). This court has recognized a
dismissal as untimely under Article 930.8 as an independent and adequate state
procedural bar. See Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997). Williams
did not show cause for his failure to raise the claim or prejudice. See United
States v. Smith, 216 F.3d 521, 524 (5th Cir. 2000). Williams has also failed to
show that a miscarriage of justice as he had not made a persuasive showing that
as a factual matter he did not commit the second degree kidnapping crime for
which he was convicted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.
2001). Therefore, Williams has not shown that the district court erred in
dismissing his claim as procedurally barred. See Parr v. Quarterman, 472 F.3d
245, 253 (5th Cir. 2006).
AFFIRMED.
2