     Case: 11-30246     Document: 00511873075         Page: 1     Date Filed: 05/31/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 31, 2012
                                     No. 11-30246
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

STANLEY STIRGUS,

                                                  Petitioner-Appellant

v.

HOWARD PRINCE, WARDEN,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-374


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Stanley Stirgus, Louisiana prisoner # 489480, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition, challenging his conviction and life
sentence for second degree murder.              We granted Stirgus a certificate of
appealability (COA) to determine whether Stirgus is procedurally barred from
raising his claim concerning re-amendment of the indictment if the state habeas
court erred in applying its procedural rules.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30246      Document: 00511873075        Page: 2     Date Filed: 05/31/2012

                                     No. 11-30246

       Although the state court refused to consider Stirgus’s claim pursuant to
an independant and adequate state procedural bar, see Bagneris v. Cain, 254 F.
App’x 351, 352 (5th Cir. 2007) (per curiam), the district court refused to apply
the bar after concluding that the state court failed to comply with another
procedural rule and instead considered and rejected the merits of Stirgus’s
claim. We conclude that the district court erred in rejecting the procedural bar
hence reaching the merits of Stirgus’s claim because, factually and under
Louisiana law, State of ex. Rel. Rice v. State, 749 So.2d 650 (La. 1999) (holding
that language which “requires an inmate filing an application for post-conviction
relief to ‘explain why’ he may have ‘failed to raise [a particular] ground’ in
earlier proceedings” satisfies the requirements of La. Code Crim. Proc. art.
930.4(F)), Stirgus adequately was accorded the protections under Louisiana Code
of Criminal Procedure article 930.4. See Johnson v. Cain, 215 F.3d 489, 494 (5th
Cir. 2000) (holding that the district court erred in concluding that the state court
improperly applied its procedural rules); Walker v. Warden Louisiana State
Penitentiary, 19 F.3d 15, 1994 WL 93289, at *1 (5th Cir. 1994) (per curiam)
(holding that it would be improper for a federal habeas court to second-guess the
state court’s compliance with its procedural rules).1 Thus, absent a showing of
either cause and prejudice or a fundamental miscarriage of justice, the state
court’s finding of procedural bar is conclusive. See Smith v. Johnson, 216 F.3d
521, 524 (5th Cir. 2000). Stirgus has not made the required showing.
       Accordingly, the district court’s denial of Stirgus’s § 2254 petition is
AFFIRMED. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (holding that
this court may affirm the district court’s judgment on any basis supported by the
record).




      1
        In this circuit, unpublished opinions issued before January 1, 1996, are precedent.
5TH CIR. R. 47.5.3.

                                            2
