James R. Stringer, Petitioner-appellant, v. Charles J. Jackson, Interim Commissioner, Mississippidepartment of Corrections, et al., Respondents-appellees, 909 F.2d 111 (5th Cir. 1990)

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U.S. Court of Appeals for the Fifth Circuit - 909 F.2d 111 (5th Cir. 1990)

July 30, 1990. Rehearing and Rehearing En BancDenied Sept. 10, 1990

James E. Ostgard, Minneapolis, Minn. (court-appointed), Kenneth J. Rose, Durham, N.C. (court-appointed), Dennis Sweet, Jackson, Miss. (court-appointed), for petitioner-appellant.

Marvin L. White, Jr., Felicia C. Adams, Asst. Attys. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Mississippi; William Henry Barbour, Jr., Judge.


U.S. ----, 110 S. Ct. 1800, 108 L. Ed. 2d 931

Before REAVLEY, JOHNSON and DAVIS, Circuit Judges.

REAVLEY, Circuit Judge:

This cause has been remanded to us by the Supreme Court for reconsideration in light of Clemons v. Mississippi, 494 U.S. ----, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990). The problem corresponds to the issue treated in Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). The Attorney General of Mississippi objects to our application of these two cases here on the ground that Stringer's conviction was final prior to either decision, and therefore any claim on that ground is barred by Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). That objection is well taken.

Stringer's conviction was final on February 19, 1985 when the Supreme Court denied his petition for writ of certiorari directed at his conviction and sentence. Stringer v. Mississippi, 469 U.S. 1230, 105 S. Ct. 1231, 84 L. Ed. 2d 368 (1985). A panel of the Fifth Circuit has recently held that claims raised under Clemons and Maynard are not available to a habeas petitioner whose conviction was final prior to these decisions, because they constitute a new rule of law under Teague. Smith v. Black, 904 F.2d 950, (5th Cir. 1990).

We therefore reinstate our previous judgment. Stringer v. Jackson, 862 F.2d 1108 (5th Cir. 1988). The judgment of the district court denying the writ is AFFIRMED.