McCleary v. Johnson

*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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-20738
_____________________
AARON WAYNE MCCLEARY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
(D.C. No. H-97-CV-3895)
_______________________________________________________
April 6, 2000
Before REAVLEY, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The judgment of the district court dismissing this second writ application is
affirmed. As explained by the court in its memorandum and order of July 17, 1998,
this application is procedurally barred.

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2
Although the state court denied habeas corpus on the ground of the
procedural bar in 1997, a question has been raised about the effect of a decision of
the Texas Court of Criminal Appeals in 1998 that may have changed the Texas law
to the extent that petitioners with successive applications attacking convictions for
the first time, although raising complaints that could have been raised in prior
applications, are not procedurally barred from doing so. We view that question as
one for the Texas courts. Conceivably, the Texas court could revisit McCleary’s
claims, but his pending application has been dismissed for the reason of the
procedural bar under Texas law. As the district court said, federal habeas review is
barred when a state court declines to address the petitioner’s claims because he
failed to meet the state procedural requirements.
AFFIRMED.

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