253 F.3d 201 (5th Cir. 2001)
IN RE JUAN RAUL GARZA, MOVANT.
No. 01-40473
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
May 30, 2001

MOTION FOR AN ORDER AUTHORIZING THE UNITED STATES DISTRICT COURT FOR           THE SOUTHERN DISTRICT OF TEXAS, BROWNSVILLE DIVISION, TO CONSIDER A           SUCCESSIVE HABEAS 28 U.S.C. § 2255 APPLICATION
Before Davis, Smith, and Wiener, Circuit Judges.

Per Curiam

1
Petitioner-Appellant Juan Raul Garza is scheduled for execution on June 19, 2001. He seeks this court's           permission under 28 U.S.C. § 2255 to file a successive motion to vacate his sentence. Because Garza           does not meet the standards set forth under that statute, leave to file the successive petition is DENIED.

I.

2
On July 29, 1993, Garza was convicted by a jury of drug trafficking, money laundering, engaging in a           continuing criminal enterprise, and three counts of killing in furtherance of a continuing criminal enterprise.           In accordance with the jury's recommendation after a punishment hearing, the district court sentenced           Garza to death. This court affirmed the conviction and sentence, United States v. Flores, 63 F.3d 1342           (5th Cir. 1995), and denied rehearing, United States v. Garza, 77 F.3d 481 (5th Cir. 1995). The facts of           Garza's offenses are set forth in that opinion. The Supreme Court denied Garza's petition for writ of           certiorari, United States v. Garza, 519 U.S. 825 (1996), and his petition for rehearing, United States v.           Garza, 519 U.S. 1022(1996).


3
Garza filed his first § 2255 motion to vacate his sentence in 1997. That petition was denied, and this court           denied Garza's petition to appeal that decision. United States v. Garza, 165 F.3d 312 (5th Cir. 1999). The           Supreme Court denied certiorari. United States v. Garza, 528 U.S. 1006 (1999).

II.

4
In order to file a successive petition for review under 28 U.S.C. § 2255, Garza must demonstrate either:           "(1) newly discovered evidence that, if proven and reviewed in light of the evidence as a whole, would be           sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the           movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral           review by the Supreme Court that was previously unavailable." 28 U.S.C. § 2255 (2000); Reyes-Requena           v. United States, 243 F.3d 893 (5th Cir. 2001). Garza's sole claim, which falls under the second prong of           the test, is based on the Supreme Court's recent decision in Shafer v. South Carolina, 121 S.Ct. 1263           (2001). Shafer clarified the application of the Supreme Court's earlier decision in Simmonsv. South           Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994), to South Carolina's death penalty procedures. Relying          on Shafer, Garza argues that the trial court's failure to instruct Mr. Garza's sentencing jury that the court           was required to sentence him to life without the possibility of parole if the jury did not sentence him to           death, violated his rights under the Due Process Clause of the Fifth Amendment to the United States           Constitution. However, Shafer does not create a new rule of constitutional law. Neither does it expressly           declare the rule retroactively applicable to cases on collateral review or apply the rule in a collateral           proceeding. In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). In addition, the rule Garza seeks to apply           was not "previously unavailable." Garza has already been afforded full review in his original direct appeal of           the Simmons claims he seeks to present in this successive motion.

III.

5
As Garza has not met the statutory requirements, his motion for authorization to file a successive 28 U.S.C.           § 2255 motion is therefore DENIED. We also DENY Garza's motion for stay of execution.*



Notes:


*
  We grant Garza's motion for appointment of counsel.


