     Case: 10-40326     Document: 00511509531          Page: 1    Date Filed: 06/15/2011




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

                                                 FILED
                                                                            June 15, 2011
                                     No. 10-40326
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WILLIS JOSEPH REED,

                                                   Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:06-CV-598


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Willis Joseph Reed, Texas prisoner # 1319595, appeals from the district
court’s denial of his 28 U.S.C. § 2254 application challenging his conviction for
murder. This court granted a certificate of appealability on the issue whether
the district court erred by dismissing Reed’s sufficiency of the evidence claim
when no copy of the state trial record is contained in the record.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40326   Document: 00511509531      Page: 2   Date Filed: 06/15/2011

                                 No. 10-40326

      Because Reed received sufficient notice that the issue of procedural default
would be considered on appeal and had a reasonable opportunity to respond, and
because the State did not intentionally waive its procedural defenses, we
consider sua sponte whether Reed’s sufficiency claim is procedurally defaulted.
See Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000). As Reed raised his
sufficiency claim only in his state habeas application, the Texas Court of
Criminal Appeals’s denial of his application was based on an independent and
adequate Texas procedural ground such that his sufficiency claim is procedurally
defaulted. See Busby v. Dretke, 359 F.3d 708, 718 (5th Cir. 2004); Ex parte
Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). We have fully considered,
but find no merit in, Reed’s reply argument that failing to consider his
sufficiency claim on the merits would result in a fundamental miscarriage of
justice because he is actually innocent. See Schlup v. Delo, 513 U.S. 298, 324,
327-28 (1995); Smith, 216 F.3d at 524.
      AFFIRMED.




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