Fifth Circuit: Edward Busby v. Lorie Davis, Director

Assertion of actual innocence in a second state Habeas that was dismissed summarily with an indication that the court did not reach the merits was not dismissed for procedural default, as the briefing indicates (which would at any rate be a reasonable ruling, since Federal courts are permitted to do such things), but for the alternate reason in the statute, namely that no reasonable juror would have accepted the claim.   As this alternate ground is not challenged, the state denial was not an unreasonable application of facts or federal law.

Second non-AEDPA federal Habeas asserting identical claims is denied on merits.

Ineffective Assistance claim based on direct appeal was not raised in initial state Habeas -- ineffective assistance in collateral proceedings is insufficient excuse for the default of claim, as there is no right to counsel at that stage.

No prejudice from ineffective assistance at trial.


Editorial note:  End the death penalty.