John Henry Selvage v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division

897 F.2d 745

John Henry SELVAGE, Petitioner-Appellee,
v.
James A. COLLINS, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellant.

No. 88-2278.

United States Court of Appeals,
Fifth Circuit.

March 6, 1990.

Robert S. Walt, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellant.

David Cunningham, Houston, Tex., George H. Kendall, New York City, for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Texas; Norman W. Black, Judge.

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Before POLITZ, WILLIAMS, and HIGGINBOTHAM Circuit Judges.

BY THE COURT:

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CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR

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THE FIFTH CIRCUIT TO THE COURT OF CRIMINAL APPEALS

OF TEXAS PURSUANT TO RULE 214 TEXAS

RULES OF APPELLATE PROCEDURE

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TO THE TEXAS COURT OF CRIMINAL APPEALS AND THE HONORABLE JUSTICES THEREOF:

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The United States Court of Appeals for the Fifth Circuit on remand from the United States Supreme Court has decided that this case presents a question of law that may be determinative of this case, for which there is no controlling precedent in the decisions of the Court of Criminal Appeals. The question is whether petitioner Selvage's claim under Penry v. Lynaugh, 492 U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), is presently procedurally barred under Texas law. We certify this question pursuant to Rule 214, Texas Rules of Appellate Procedure. The question was framed by the United States Supreme Court in its per curiam opinion filed February 21, 1990, --- U.S. ----, 110 S.Ct. 974, 108 L.Ed.2d 93.

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The procedural history of this case is set out in Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App.1984); Selvage v. Lynaugh, 823 F.2d 845 (5th Cir.1987), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 268 (1987); Selvage v. Lynaugh, 842 F.2d 89 (5th Cir.1988), stay granted pending cert., 485 U.S. 983, 108 S.Ct. 1283, 99 L.Ed.2d 494 (1988), cert. granted in part, (Oct. 10, 1989), --- U.S. ----, 110 S.Ct. 231, 107 L.Ed.2d 182 (1989).

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The names and addresses of counsel for each party are set out in the appendix.

APPENDIX A

Jim Mattox, Attorney General

Robert S. Walt, Assistant Attorney General

Capitol Station

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Austin, Texas 78711David P. Cunningham, Esq.

Attorney for Petitioner

1927 Norfolk

Houston, Texas 77098

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Julius L. Chambers, Esq.

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NAACP Legal Defense and Educational Fund, Inc.

99 Hudson Street

New York, New York 10013

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George H. Kendall, Esq.

31 Elm Street, Suite 236

Springfield, Massachusetts 01103