                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                            No. 02-50193



                         BOBBY WAYNE WOODS,

                                               Petioner-Appellant,


                               VERSUS


                     JANIE COCKRELL, Director,
               Texas Department of Criminal Justice,
                      Institutional Division,

                                              Respondent-Appellee.




            Appeal from the United States District Court
         For the Western District of Texas, Austin Division
                           A-01-CV-50-SS
                               February 24, 2003


Before BARKSDALE, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:*

     Appellant, Bobby Wayne Woods (“Woods”) is a Texas state death

penalty inmate.    Woods is appealing the decision of the United

States District Court for the Western District of Texas, Austin

     *
       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that this opinion should not be published and is not precedent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.

                                 1
Division, denying his petition for federal habeas relief.                  A

certificate of appealability has been granted by the district court

on the one issue Woods is now appealing.

                              BACKGROUND

     We have already outlined the facts concerning Woods’ crime,

trial, conviction, and sentencing in an earlier opinion.           Woods v.

Cockrell, 307 F.3d 353 (5th Cir. 2002).         Briefly, the procedural

history is as follows.

     Woods was arrested and charged with, inter alia, capital

murder and was indicted on June 4, 1997.        He was found guilty by a

jury on May 21, 1998.     Following a punishment hearing, the jury

returned affirmative     answers   on   May   28,   1998,   on   the   issues

relating to Woods’ future dangerousness and intent to commit

murder, and a negative answer on the existence of mitigating

circumstances to justify a life sentence.           The trial court then

sentenced Woods to death.

     Woods appealed the conviction and sentence to the Texas Court

of Criminal Appeals, and concurrently filed a state application for

writ of habeas corpus.      The Court of Criminal Appeals affirmed

Woods’ conviction and sentence in an unpublished opinion. Woods v.

State, No. 73,136 (Tex. Crim. App. June 14, 2000).          His motion for

rehearing was denied and the court entered a mandate on September

13, 2000.   The Court of Criminal Appeals also denied Woods’ habeas

petition in an unpublished opinion based on the findings of the


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trial court.    Ex parte Woods, No. 44,856-01 (Tex. Crim. App. Sept.

13, 2000).     The United States Supreme Court denied certiorari on

February 21, 2001.     Woods v. Texas, 531 U.S. 1155 (2001).            Woods

petitioned for federal habeas relief in the United States District

Court for the Northern District of Texas on December 11, 2000.

That court transferred the case to the Western District of Texas,

which entered its ruling on summary judgment on February 8, 2002,

denying Woods’ claim for habeas corpus relief.             The district court

found Woods’ challenge to the admissibility of his confession

procedurally barred because Woods had defaulted the claim in the

Texas courts.

     On April 16, 2002, however, the district court granted a

certificate of appealability (“COA”) as to whether, in light of Lee

v. Kemna, 534 U.S. 362 (2002), the Texas procedural bar to Woods’

challenge to the admissibility of his confession should not prevent

federal habeas review.      The district court expressed its view that

Woods’ contentions were not persuasive and that Lee does not apply

but nonetheless on this issue, but not on any other issues which

Woods was attempting to appeal, the court granted a COA.

     Pursuant    to   28   U.S.C.   §   2253(c),   which    provides   that a

prisoner may not appeal the denial of a petition for habeas corpus

under § 2254 without first obtaining a COA, Woods sought a COA on

several other issues from this Court in a petition filed on April

25, 2002.    Woods was denied any additional COA in an opinion issued


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on September 24, 2002.      Woods, 307 F.3d at 353.

     Accordingly, the issue now before us is whether the district

court was correct in finding that a state court’s conclusion that

Woods had procedurally defaulted his claim when he failed to raise

it during direct appeal of his conviction involved the application

of an adequate and independent state procedural rule to foreclose

substantive federal relief.       Of course, if the state procedural

default does not bar federal relief, then, pursuant to the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),1 this

court    must   determine   whether       the   state   court’s   alternative

conclusion that Woods had failed to demonstrate constitutional

error    involved   an   unreasonable      application    of   Supreme   Court

precedent or an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding.

                                DISCUSSION

Whether the District Court Correctly Concluded that Woods’
Complaint Was Barred from Review in Federal Court Because the Texas
Courts Had Rejected the Claim Based on an Adequate and Independent
State Procedural Ground.

     Federal courts are precluded from reviewing a question of

federal law “if the decision of [the state] court rests on a state

law ground that is independent of the federal question and adequate

to support the judgment.”      Coleman v. Thompson, 501 U.S. 722, 729



     1
       AEDPA applies in this case because Woods filed his federal
petition after the statute’s enactment. See Lindh v. Murphy, 521
U.S. 320, 335 (1997).

                                      4
(1991).    “This rule applies whether the state law ground is

substantive or procedural.”   Coleman, 501 U.S. at 729.        To satisfy

the “independent” and “adequate requirements,” the state decision

must “clearly and expressly” indicate that it rests on state

grounds which bar relief, and the bar must be strictly or regularly

followed by state courts, and applied to the majority of similar

claims.   Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995).          “In

all cases in which a state prisoner has defaulted his federal

claims in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal

law, or demonstrate that failure to consider the claims will result

in a fundamental miscarriage of justice.”            Coleman, 501 U.S. at

750.

       There is no dispute that the state court’s decision was

clearly and   expressly   based   on   the   Texas    requirement   that a

defendant raise a claim on direct appeal or risk defaulting the

claim on collateral review, absent a showing of discovery of new

evidence not available on direct review, nor is there a dispute

that this Texas rule is strictly and regularly enforced.        See Soria

v. Johnson, 207 F.3d 232, 249 (5th Cir. 2000) (holding that a Sixth

Amendment fair cross-section claim defaulted in state court was

foreclosed from federal review absent a showing of cause and


                                   5
prejudice).

      The reason the district court granted COA was because Woods

claims that the Supreme Court case of Lee v. Kemna, 534 U.S. 362

(2002), controls this case and dictates that the Texas procedural

bar   does   not   prevent     federal   review     of   his   claim.      Without

explanation, Woods cites Lee and suggests “that not all state

procedural bars preclude federal review of a claim.”                   Appellant’s

Brief at 15-16.         Although, this is correct, his understanding and

application of Lee are incorrect.

      In Lee, the Supreme Court clarified the meaning of “adequate”

for   purposes     of    the   “independent   and    adequate     state   ground”

doctrine. Id. at 375-78. The Court explained that, “[o]rdinarily,

violation of firmly established and regularly followed state rules

. . . will be adequate to foreclose review of a federal claim.

There   are,     however,      exceptional    cases      in    which    exorbitant

application of a generally sound rule renders the state ground

inadequate to stop consideration of a federal question.”                   Id. at

376 (internal quotations and citations omitted).

      In Lee, the Supreme Court had to decide whether a Missouri

procedural rule was an adequate ground to prevent federal review of

a habeas petition.        Id. at 365.    Lee had alleged that he was denied

due process of law when the state trial court refused to grant his

oral motion for an overnight continuance to locate subpoenaed key

witnesses that had been present but were suddenly missing.                 Id.   At

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the time of trial, neither the court nor the prosecutor identified

any procedural flaw in Lee’s motion for continuance.       Id. at 365-

66.    In fact, when it denied the motion, the trial court appeared

to decide the issue on its merits.     Id.     The Missouri Court of

Appeals, however, concluded that Lee’s motion for continuance did

not comply with certain procedural rules requiring such motions to

be in writing and accompanied by an affidavit, and therefore

declined to reach the merits of Lee’s constitutional claim.     Id. at

366. When Lee sought federal habeas relief both the district court

and court of appeals found the state procedural bar to be adequate

to prevent federal review.       Id. at 374.      The Supreme Court

reversed, stating that Lee, “having substantially, if imperfectly,

made the basic showings [] prescribe[d]” by the Missouri rules,

“qualifie[d] for adjudication of his federal ... claim.”       Id. at

366.    The Court found that Lee’s case fell “within the small

category of cases in which asserted state grounds are inadequate to

block adjudication of a federal claim” for three reasons.      Id. at

381.    First, when the trial court ruled on Lee’s motion, it made

its ruling despite any procedural problems and Lee could not have

affected the ruling by complying with the rules.     Id.   Second, no

published state decision, in a similar case, required flawless

compliance with the procedural rules.        Id. at 382.   Third, Lee

substantially complied with the rule in such a way as to fulfill

the underlying rationale for the rule.    Id. at 382-83.

                                  7
     In the present case, there are no similarities to Lee.               The

state court found that Woods had procedurally defaulted his claim

when he failed to raise it during direct appeal.             There is nothing

“exceptional”   about   this   case   and    there    was    no   “exorbitant”

application of a state rule.    Rather, the rule as applied in Woods’

case serves its purpose of ensuring cases reach finality and

ensuring that habeas review is not to be used to litigate matters

which should have been raised on direct appeal.             Ex parte Gardner,

959 S.W.2d 189, 199 (Tex. Crim. App. 1996).            Because the rule is

well established, Woods had notice of the rule and the consequences

of not complying with the rule.             Additionally, Woods did not

“substantially meet” the “essential requirements” of the rule.

Therefore, his case is not among the “small category” of cases

governed by Lee and there can be no federal review of Woods’ claim.

     In his brief, Woods makes essentially two other arguments to

support his claim that the district court erred by holding his

challenge to the admissibility of his confession was foreclosed

from federal review based on the Texas court’s invocation of a

state procedural bar.    These arguments are without merit.             First,

Woods argues that he exhausted his constitutional arguments during

the state collateral review.     This is irrelevant because Woods did

not raise his challenge to the admissibility of his statements on

direct review and therefore was correctly barred by Texas law from

asserting the claim on collateral review.            Gardner, 959 S.W.2d at


                                      8
199 (stating “writ of habeas corpus should not be used to litigate

matters which should have been raised on direct appeal”); Ex parte

Groves, 571 S.W.2d 888, 890 (Tex. Crim. App. 1978) (stating that

“habeas corpus shall not lie as a substitute for appeal”).

      Second, Woods argues even if his claim is defaulted, he is

excused by demonstrating both (1) cause and prejudice, and (2) a

fundamental miscarriage of justice.        Woods, however, attempts to

argue cause by claiming his counsel was ineffective, and, although

an independent constitutional claim may provide cause, his claim

has never been argued to the state court and is therefore also

procedurally defaulted.       See Edwards v. Carpenter, 529 U.S. 446,

451 (2000).     Further, Woods has failed to show prejudice, in that

the   claimed   violation   “worked   to   his   actual   and    substantial

disadvantage,     infecting    his    entire     trial    with    error   of

constitutional dimensions.”      United States v. Frady, 456 U.S. 152,

170 (1982) (emphasis in original). Similarly, Woods’ argument that

there is a fundamental miscarriage of justice in applying the

procedural bar is not applicable in this case because he failed to

make a “persuasive showing that he is actually innocent of the

charges against him.”       Finley v. Johnson, 243 F.3d 215, 220 (5th

Cir. 2001)(citing Coleman, 501 U.S. at 750).

      Because we find Lee inapplicable and because Woods has not

shown that he has not defaulted his claim or should be excused from

the default, we affirm the district court’s grant of summary

                                      9
judgment denying federal relief and it is therefore unnecessary to

proceed with an AEDPA analysis.

                             CONCLUSION

     The decision of the district court denying Woods federal

habeas relief is affirmed.   AFFIRMED.




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