                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                            No. 02-30467
                            No. 02-30469


                   IN RE:   LESLIE DALE MARTIN,

                                                            Movant.

_________________________________________________________________

   Motion for Stay of Execution and for Authorization to File a
 Successive Habeas Corpus Petition in the United States District
            Court for the Western District of Louisiana
_________________________________________________________________
                            May 10, 2002

                       LESLIE DALE MARTIN,

                                             Petitioner-Appellant,

                               versus

         BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                              Respondent-Appellee.

_________________________________________________________________

                   Motion for Stay of Execution
   Appeal from the United States District Court for the Middle
                       District of Louisiana
                            (02-CV-453)
_________________________________________________________________


Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

PER CURIAM:*


     *
      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this opinion should not be published and is not precedent except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.
     Leslie Dale Martin seeks a stay of his execution set for

today, 10 May 2002; requests permission to file a successive 28

U.S.C. § 2254 habeas application; and appeals the district court’s

9 May 2002 dismissal and alternative transfer of his 28 U.S.C. §

2241 habeas application (for us to consider whether to allow it to

be filed as a successive habeas application).

     Martin contends: Marlin Sweet, a key witness, perjured himself

and Brady material was not disclosed concerning him; Martin’s trial

counsel was ineffective and represented him under a conflict of

interest;    and   Campbell    v.    Louisiana,    523   U.S.    392     (1998),

concerning     discrimination       in    the   selection   of       grand   jury

forepersons,    should   be   retroactively      applicable     on    collateral

review.   MOTIONS DENIED and APPEAL DISMISSED.

                                         I.

     The following is stated in our 27 March 2001 affirmance of the

denial of Martin’s § 2254 habeas application.

                 On 20 June 1991, Martin went to a bar in
            Lake Charles, Louisiana, where his companion,
            Roland, introduced him to the victim. Around
            7:30 the next morning, Martin told his work
            supervisor that he had met a college student,
            left the bar with her, and woke up alone on
            Galveston Beach.     The supervisor noticed
            scratches on Martin’s forehead, neck, and
            shoulder that had not been there the day
            before.

                 When Martin returned to his aunt’s home
            (where he was residing), wearing different
            clothes from the previous night, and no shirt
            or shoes, his cousin observed scratches on his
            chest and back, a bite mark on his shoulder,

                                         2
          and a tear under his tongue. Martin explained
          he had fought a “country boy” at the bar.

                That same morning, Martin related to
          another, Rushing, he thought he may have
          killed someone the previous night, and asked
          Rushing for an alibi.        Although Rushing
          refused, Martin confided that the victim had
          threatened to report him for rape.      Martin
          mentioned a shed in Iowa, Louisiana, and
          stated he had choked the victim with a rope,
          cut her throat, dug her eyes out, and jumped
          up and down on a wooden board placed on her
          neck.    Subsequently, Rushing testified that
          Martin, who had served several years of a ten-
          year sentence for sexual battery, told him
          (Rushing) “he didn’t want to be turned in for
          rape again”.

               Rushing did not believe Martin’s story;
          but, nine days later, when he learned the
          victim had been missing since leaving the bar,
          he provided the information to police. During
          a search of sheds in the Iowa area,
          authorities     discovered    the     victim’s
          decomposing body, with a rope around her neck,
          and a wooden board containing human blood
          nearby. There was little forensic evidence.
          A tampon taken from the body tested negative
          for seminal fluid; but, a forensic expert
          testified that, due to decomposition, the test
          could be a “false negative”.

               Under Louisiana law, first degree murder
          includes “killing ... a human being ... [w]hen
          the offender has specific intent to kill or to
          inflict great bodily harm and is engaged in
          the perpetration or attempted perpetration of
          ... aggravated rape....” LA. REV. STAT. ANN. §
          14:30(A)(1) (emphasis added).        Rape is
          aggravated “[w]hen the victim resists the act
          to the utmost, but whose resistance is
          overcome by force”.     LA. REV. STAT. ANN. §
          14:42(A)(1).

Martin v. Cain, 246 F.3d 471, 473 (5th Cir. 2001) (emphasis in

original), cert. denied, 122 S. Ct. 194 (2001).

                                3
      In Martin’s prosecution for first degree murder, three inmates

(including Sweet) “who had been incarcerated with Martin after his

arrest ... each testified, in varying detail, that:              Martin told

them he had sexual relations with the victim; she accused him of

rape; and he killed her, because he did not want to return to

prison.    But, [of the three inmates’ testimony,] only Sweet’s ...

established aggravated rape”.         Id. at 474 (emphasis in original).

Nevertheless,

            Sweet’s testimony, with the exception of that
            about the aggravated nature of the rape, was
            corroborated by a number of other witnesses
            and other evidence, and Sweet’s testimony
            concerning the aggravated nature of the rape
            was, to some extent, corroborated by Marin’s
            visible physical injuries shortly after the
            murder.

Id. at 481.

      In 1992, Martin was convicted of first degree murder and

sentenced to death.     Id. at 474.       In 1994, the Louisiana Supreme

Court affirmed his conviction and death sentence; the Supreme Court

of   the   United   States   denied    certiorari   in   1995,    Martin   v.

Louisiana, 515 U.S. 1105 (1995); in 1997, the state district court

denied his application for post-conviction relief, Martin, 246 F.3d

at 475; and in 1998, the Louisiana Supreme Court denied his writ

application.    Martin v. Cain, 709 So. 2d 693 (La. 1998).

      In 1999, the district court denied Martin’s first federal

habeas application, but granted a certificate of appealability


                                      4
(COA) on two issues concerning ineffective assistance of counsel,

and a Brady violation concerning Sweet.         Martin, 246 F.3d at 475.

We affirmed the denial.     Martin v. Cain, 206 F.3d 450, 461 (5th

Cir.), vacated, 531 U.S. 801 (2000).          On remand from the Supreme

Court of the United States (concerning the standard of review), we

again affirmed the denial of habeas relief.              Martin, 246 F.3d at

473.

       On 7 January 2002, Martin’s execution was set for 8 February

2002. On 4 February, four days prior to the execution date, Martin

filed an application for post-conviction relief in Louisiana state

court.    The trial court denied the application on 5 February; on

the same day, Martin filed in Louisiana state court a supplemental

application for post-conviction relief.          The      trial court denied

the supplemental application; and, on 8 February, the Louisiana

Supreme Court denied Martin’s writ application.

       That same day, the Supreme Court of the United States stayed

Martin’s execution pending a ruling on his petition for certiorari

concerning the state court rulings. On 25 March, the Supreme Court

denied   certiorari,   Martin   v.   Cain,    122   S.    Ct.   1372   (2002);

Martin’s petition for rehearing was denied yesterday, 9 May.

       The pending request to file a successive habeas application is

not Martin’s first request to do so.         On the prior 8 February 2002

execution date, Martin requested that we grant such permission,

claiming:     his counsel was ineffective due to a conflict of


                                     5
interest; and the State had not disclosed Brady material concerning

Sweet.    We denied the request.           In re Martin, No. 02-30157 (5th

Cir. 8 Feb. 2002) (unpublished).             Martin filed a “petition for

habeas corpus relief” with the Supreme Court concerning this

decision; the petition was denied on 15 April 2002.

       On 8 April, Martin’s execution date was reset for today, 10

May.   On 23 April, he filed in Louisiana state court a petition for

post-conviction relief.         The trial court denied the petition on 2

May,   and   the    Louisiana     Supreme    Court   denied   Martin’s   writ

application on 9 May.      That same day, Martin filed in the United

States District Court for the Middle District of Louisiana a habeas

petition under 28 U.S.C. § 2241.

       On 9 May, the district court construed the petition as an

action under 42 U.S.C. § 1983 and dismissed it for lack of

jurisdiction.      In the alternative, the district court transferred

the petition to this court pursuant to 28 U.S.C. § 1631 for us to

determine whether Martin should be permitted to file it as a

successive habeas petition.

       Also on 9 May, Martin filed the pending motions with this

court, seeking a stay of execution as well as permission to file a

successive habeas petition concerning issues completely independent

from his most recent federal district court filing concerning his

claim of denial of access to clemency.          Today, 10 May, Martin filed

a notice of appeal from the district court’s 9 May judgment


                                       6
concerning his § 2241 habeas petition, as well as another stay-of-

execution motion.

                                       II.

                                       A.

      In the request to file a successive habeas application, Martin

presents three claims:    Sweet, a key witness, perjured himself and

Brady material was not disclosed concerning Sweet; Martin’s trial

counsel was ineffective due to his taking prescription psychiatric

medication and representing Martin under a conflict of interest;

and he is entitled to benefit from a “new rule of constitutional

law” announced in Campbell v. Louisiana, 523 U.S. 392 (1998),

concerning    discrimination      in    the         selection   of   grand    jury

foreperson.   In conjunction with this request, Martin seeks a stay

of execution.

      The Antiterrorism and Effective Death Penalty Act (AEDPA)

requires that, before “a second or successive application ... [can

be] filed in the district court, the applicant shall move in the

appropriate court of appeals for an order authorizing the district

court to consider the application”.           28 U.S.C. § 2244(b)(3)(A).        As

stated in subpart (b)(3)(C), authorization is to be given “only if

...   the   application   makes    a        prima    facie   showing   that    the

application satisfies the requirements of” 28 U.S.C. § 2244(b), as

quoted below.




                                        7
     A “claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior

application shall be dismissed”.           28 U.S.C. § 2244(b)(1).

     A   claim   presented   in   a   successive     habeas   petition   not

presented in a prior petition shall be dismissed unless:

           (A) the applicant shows that the claim relies
           on a new rule of constitutional law, made
           retroactive to cases on collateral review by
           the Supreme Court, that was previously
           unavailable; or

           (B)(i) the factual predicate for the claim
           could not have been discovered previously
           through the exercise of due diligence; and
           (ii) the facts underlying the claim, if proven
           and viewed in light of the evidence as a
           whole, would be sufficient to establish by
           clear and convincing evidence that, but for
           constitutional error, no reasonable factfinder
           would have found the applicant guilty of the
           underlying offense.

28 U.S.C. § 2244(b)(2)(B).

                                      1.

     Martin’s contention that he is entitled to relief under

Campbell has not been presented in a prior application.              He must

show Campbell has been made retroactively applicable to cases on

collateral review by the Supreme Court. 28 U.S.C. § 2244(b)(2)(A).

“[A] new rule is not ‘made retroactive to cases on collateral

review’ unless the Supreme Court holds it to be retroactive”.

Tyler v. Cain, 533 U.S. 656, 664 (2001) (concerning successive

habeas petition relying upon § 2244(b)(2)(A)).



                                      8
      Martin contends that pending before our court in another

appeal is whether Campbell has been made retroactively applicable.

Nevertheless, for successive habeas purposes, the Supreme Court has

not made Campbell retroactively applicable to cases on collateral

review.

                                    2.

                                    a.

      Martin’s remaining claims, relating to Sweet and his trial

counsel, were presented in his first federal habeas petition.          See

Martin v. Cain, 246 F.3d 471 (5th Cir. 2001).            He cannot do so

again.    See 28 U.S.C. § 2244(b)(1).

                                    b.

      Even assuming arguendo these claims are raised for the first

time, Martin has not made the required prima facie showing that:

(1)   their   factual   predicate   could   not   have   been   discovered

previously through the exercise of due diligence, see 28 U.S.C. §

2244(b)(2)(B)(i); and (2) that these assertions, if true, “would be

sufficient to establish by clear and convincing evidence that, but

for constitutional error, no reasonable factfinder would have

found” Martin guilty of the underlying offense, see id. at §

2244(b)(2)(B)(ii).

      To the extent Martin relies on newly discovered evidence in

support of these claims, this evidence is not sufficient to make

the requisite prima facie showing that “but for constitutional


                                    9
error, no reasonable factfinder would have found [Martin] guilty of

the underlying offense.”      Id.    Although the new evidence regarding

Sweet further undermines his credibility and Sweet’s testimony was

quite important to the state’s case for aggravated rape, we cannot

conclude that the jury’s verdict would have been different in light

of the other evidence presented at trial.               Although the other

individuals who testified as to what Martin had told them about his

commission of the offense did not provide information, as Sweet

did, indicating that Martin had perpetrated aggravated rape, they

did testify that Martin had told them that he had killed the victim

when she accused him of rape.              Further, as noted supra, the

evidence of the physical injuries that Martin incurred on the night

of the offense corroborated Sweet’s testimony.

      The new evidence that Martin proffers in support of his claim

that he was denied the assistance of trial counsel indicates that

his trial counsel, Bobby Pitre, suffered from a “mental breakdown”

shortly before Martin’s trial and was taking psychiatric medication

during the trial.    However, Martin does not attempt to demonstrate

how   Pitre’s   condition    affected      Pitre’s   performance   at   trial.

Rather,   Martin    argues    that    prejudice      should   be   presumed,

analogizing Pitre to the counsel who slept during trial whose

performance was at issue in Burdine v. Johnson, 262 F.3d 336 (5th

Cir. 2001) (en banc).         Although we do not here rule out the

possibility that medication taken by counsel or counsel’s mental


                                      10
condition during trial may warrant a presumption of prejudice in

some circumstances, Martin’s new evidence does not demonstrate that

his case involves such circumstances because there is no indication

that Pitre was impaired in any way as a result of his medication or

mental condition during Martin’s trial.

                                       B.

     Martin also contends:         that he has a “free standing claim of

factual innocence”; and that, as a result, AEDPA’s requirements do

not prevent consideration of this claim.                 Restated, for such

“factual     innocence”,    Martin    claims    an     exception     to   AEDPA’s

constraints on successive habeas applications.

     AEDPA     prescribes    our     habeas    jurisdiction;       the    claimed

exception is neither recognized in, nor permitted by, it. Martin’s

claim to an exception to AEDPA’s constraints is without merit.

Moreover,    this   “factual   innocence”      claim    has   been   repeatedly

reviewed within the scheme established by AEDPA and found wanting.

                                       C.

     Martin’s 9 May 2002 habeas petition pursuant to 28 U.S.C. §

2241 maintained he has been denied access to Louisiana’s executive

clemency system. (This claim was denied in state court in February

2002 but not presented then to the district court or our court.)

Today, 10 May, Martin filed a notice of appeal from the district

court’s judgment (denial).           In conjunction with his appeal, he

seeks a stay of execution.

                                       1.

                                       11
                                  a.

     Before being allowed to proceed on appeal, a habeas petitioner

must obtain a COA from “the final order               in a habeas corpus

proceeding in which the detention complained of arises out of

process issued by a State court”.           28 U.S.C. § 2253(c)(1)(A)

(emphasis added).    Although a prisoner in federal custody need not

obtain a COA to appeal the denial of a § 2241 petition, a prisoner

in state custody, such as Martin, must do so.             See Stringer v.

Williams, 161 F.3d 259, 262 (5th Cir. 1998) (“§ 2253 clearly does

not encompass challenges to federal detention under § 2241.              Just

as clearly, however, § 2253 does encompass challenges to state

detention under § 2241”.).

     Martin has not sought a COA, much less satisfied the standards

for obtaining one, discussed below.       Accordingly, we cannot review

the habeas denial.

                                  b.

     Alternatively, construing Martin’s notice of appeal as a COA

request and his brief as seeking to satisfy the standards for

obtaining a COA, he has not satisfied those standards:            he has not

“made a substantial showing of the denial of a constitutional

right”.   28   U.S.C.   §   2253(c)(2).     To   do    so,   he   must   show

“reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve


                                  12
encouragement to proceed further”.                  Slack v. McDaniel, 529 U.S.

473, 484 (2000) (citation and internal quotation marks omitted).

       Reasonable jurists could not disagree that the petition should

be    denied    because    Martin    has    not     even    applied       for    clemency.

Furthermore,       reasonable       jurists      could     not    disagree       with   the

district court’s construction of the claim as arising under 42

U.S.C. § 1983 and its dismissal of the petition for lack of

jurisdiction.       See Moody v. Rodriguez, 164 F.3d 893, 893 (5th Cir.

1999) (“Federal courts lack jurisdiction to stay executions under

§ 1983.”) (internal quotation marks omitted).

                                           2.

       The     district    court,    in    the    alternative,          transferred     the

petition to our court for us to determine whether to authorize

filing a successive habeas petition.                This clemency claim does not

rely on a new rule of constitutional law made retroactive to cases

on collateral review by the Supreme Court. In addition, Martin has

not    shown    that     the   factual    predicate        of    this    claim    was   not

available previously through the exercise of due diligence and

that, but for the claimed constitutional error, no reasonable

factfinder       would    have   found     Martin    guilty       of    the     underlying

offense.       See 28 U.S.C. § 2244(b)(2)(B)(i)-(ii).




                                           13
3.




14
     In the alternative, to the extent the appeal is from the

dismissal of § 1983 relief, we lack jurisdiction, as held by the

district court.   See Moody, 164 F.3d at 893.

                                  D.

     Concomitantly, Martin has failed to satisfy the standard for

obtaining a stay of execution.

                                 III.

     For the foregoing reasons all motions are DENIED; a COA is

DENIED; and the appeal is DISMISSED.

                          MOTIONS and COA DENIED; APPEAL DISMISSED




                                  15
