897 F.2d 745
John Henry SELVAGE, Petitioner-Appellee,v.James A. COLLINS, Director, Texas Department of CriminalJustice, 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
