                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                     _______________________

                           No. 93-1261
                     _______________________


RAMON MONTOYA,

                                               Petitioner-Appellant,

                               versus

JAMES COLLINS, Director
Institutional Division Texas
Department of Corrections,

                                               Respondent-Appellee.


_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________

                          (March 24, 1993)

Before POLITZ, Chief Judge, JOLLY, and JONES, Circuit Judges.

PER CURIAM:

          Petitioner-Appellant   Ramon   Montoya,   scheduled   to   be

executed after midnight tonight, Wednesday, March 24, 1993, has

applied to this court for a certificate of probable cause to

appeal.   Concurrently, he seeks leave to appeal in forma pauperis

and a stay of execution.    This is his second appearance in our

court, his earlier habeas appeal having been considered and denied

in Montoya v. Collins, 955 F.2d 279 (5th Cir. 1992), reh'g denied,

959 f.2d 969, cert. denied, ___ U.S. ___, 113 S. Ct. 820 (1993).

We deny CPC and a stay.
              This court lacks jurisdiction to hear an appeal in this

case unless a certificate of probable cause is granted.                    Fed. R.

App. P. 22(b).        To obtain a certificate of probable cause, Montoya

must "make a substantial showing of the denial of a federal right."

Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394

(1983). To sustain this burden, Montoya "must demonstrate that the

issues are debatable among jurists of reason; that a court could

resolve the issues [in a different manner]; or that the questions

are   adequate     to    deserve     encouragement        to   proceed   further."

Barefoot, 463 U.S. at 493 n.4, 103 S. Ct. at 3394 n.4.

              The procedural background of this case is related in the

Fifth Circuit's above-cited previous opinion.                  After the decision

in that appeal, Montoya was scheduled for execution before sunrise

on January 27, 1993, and, having unsuccessfully proceeded for a

second time through the state courts on a habeas petition, was

granted   a    stay     by   the   Supreme   Court   on    January   26,   pending

disposition of his petition of certiorari.                On February 22, 1993,

the Supreme Court denied certiorari review and, on February 23, the

trial court rescheduled Montoya's execution for March 25, 1993.

              In this, his second federal habeas petition, Montoya

raises a variant of the issue that the state and federal courts

have previously rejected:            that his Sixth Amendment rights were

violated because "the state knowingly questioned the petitioner

after he was represented by counsel in the absence of his counsel."

In our previous opinion, we described his challenge as follows:




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          Montoya argues first that his interrogation by
          the Dallas Police Department violated his
          right to counsel under the Sixth Amendment and
          the prophylactic rule of Michigan v. Jackson,
          475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d
          631 (1986).

Montoya, 955 F.2d at 282.    Montoya's petition, filed in federal

district court on March 23, 1993, as much as admits duplication, as

it states:

          The petitioner recognizes that the Federal
          Courts frown upon successor petitions filed in
          state habeas corpus proceedings. However, the
          issue presented here was raised in an earlier
          petition and the decision at that time was
          based upon the petitioner's failure to
          affirmatively assert his right to counsel at
          the magistrate's hearing. This Court [sic],
          nor did any other court, reach the issue that
          the questioning of a defendant after he was
          represented   by   counsel  once   the   Sixth
          Amendment rights had attached was a violation
          of his constitutional rights. This petition
          now gives this Court a second chance to enter
          the proper finding.    Simply put, after the
          attachment of sixth amendment rights, a person
          represented by counsel cannot be interrogated
          without informing counsel.

          There is no question that this filing of a federal

petition for habeas relief constitutes an abuse of the writ or a

successive petition under Rule 9(b), Rules Governing § 2254 Cases

in the United States District Courts.    Unless a petitioner shows

cause and prejudice, a federal court may not reach the merits of

successive claims, which raise grounds identical to grounds heard

and decided on the merits in a previous petition, Kuhlmann v.

Wilson, 477 U.S. 436, 106 S. Ct. 2616 (1986), or new claims, not

raised in an earlier federal petition.   McCleskey v. Zant, 499 U.S.

___, 111 S. Ct. 1454 (1991).   However, "even if a state prisoner


                                3
cannot meet the cause and prejudice standard a federal court may

hear the merits of the successive claims if the failure to hear the

claims would constitute a 'miscarriage of justice.'"                  Sawyer v.

Whitley, ___ U.S. ___, 112 S. Ct. 2514, 2518 (1992).                The question

whether there has been a miscarriage of justice "is concerned with

actual as compared with legal innocence."                Sawyer, ___ U.S. ___,

112 S. Ct. 2519.   To fall within the actual innocence exception, a

habeas petitioner must show either that the trier of facts would

have entertained a reasonable doubt of his guilt, Kuhlmann v.

Wilson, 477 U.S. 436, at 454 n.17, 106 S. Ct. 2616, 2627 n.17

(1986), or where the alleged error pertains to the sentencing phase

of the capital trial, that no reasonable juror would have found the

petitioner eligible for a death penalty under applicable state law.

Sawyer v. Whitley, ___ U.S. at ___, 112 S. Ct. at 2517.

           Montoya did not even allege in this second petition that

he could establish cause and prejudice for failing to raise his

newly-fashioned    version   of    his      Sixth   Amendment   claim    in   his

previous   petition.     He       has       not   even   alleged,    much     less

demonstrated, that a "miscarriage of justice" regarding actual

innocence or "actual innocence of the death penalty" could be

established in his case.     This petition must accordingly be viewed

as an abuse of the writ or an impermissible successive petition and

may not be considered on its merits.

           Further, because Montoya could have raised this issue at

a much earlier date in his criminal proceedings, and because he has

delayed raising it until 48 hours before the scheduled execution


                                        4
time,   it   is   arguable   that   even   if   the   McCleskey   test   were

satisfied, equity would prevent the granting of habeas relief.

Gomez v. United States District Court for the Northern District of

California, ___ U.S. ___, 112 S. Ct. 1652, 1653 (1992).

             For these reasons, Montoya has raised no issue on which

we may grant habeas corpus relief, hence, he has raised no issue

capable of debate among reasonable jurists.

             The motion to proceed in forma pauperis is GRANTED;

motion for certificate of probable cause is accordingly DENIED;

motion for stay of execution is DENIED.




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