                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit                        May 23, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                               No. 06-40831




                      In Re: JESUS LEDESMA AGUILAR,

                                                                        Movant.




              Appeal from the United States District Court
                   For the Southern District of Texas




Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

      Jesus    Ledesma   Aguilar     (Aguilar),   who   is   scheduled        for

execution on May 24, 2006, moves pursuant to 28 U.S.C. § 2244(b)(2)

for authorization to file a successive petition for writ of habeas

corpus.

      Under    the   Antiterrorism    and   Effective   Death    Penalty      Act

(AEDPA), this court may authorize a second or successive habeas

corpus application only “if it determines that the application

makes a prima facie showing that the applicant satisfies the

requirements of this subsection.”           28 U.S.C. § 2244(b)(3)(C). To



  *
   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opinion should not be published and is not precedent except under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.
obtain authorization to file a successive claim, Aguilar must make

a prima facie showing that: (l) his claim has not previously been

presented in a prior application to this court; (2) his claim

relies on a decision of the Supreme Court that stated a new,

retroactively    applicable   rule   of   constitutional   law    that   was

previously unavailable to him; and (3) that he qualifies for relief

under the new rule.    In re Hearn, 418 F.3d 444 (5th Cir. 2005).

     Petitioner seeks relief based on the Supreme Court decision of

Crawford v. Washington, 541 U.S. 36 (2004), in which the court held

that the admission of the testimonial statement of an accomplice

not called to testify at trial and thus, not subjected to cross-

examination,    violates   the   confrontation   clause    of    the   Sixth

Amendment.     Petitioner argues that the statement of his alleged

accomplice, Chris Quiroz, was admitted in evidence against him in

violation of Crawford.        He also argues that the decision in

Crawford was not available until after applicant’s claims in his

first federal habeas petition had been litigated.                Petitioner

recognizes that he is entitled to no relief unless the rule

announced in Crawford is to be applied retroactively.

      In Lave v. Dretke, 444 F.3d 333 (5th Cir. 2006), this court

held that Crawford should not be given a retroactive application.

Except for the 9th Circuit, all circuits which have considered this

question agree with this position.        See Mungo v. Duncan, 393 F.3d

327, 336 (2d Cir. 2004), cert. denied, Mungo v. Greene, 544 U.S.

1002(2005); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005);

                                     2
Murillo v. Frank, 402 F.3d 786, 790 (7th Cir. 2005); Bintz v.

Bertrand, 403 F.3d 859, 867 (7th Cir. 2005), cert denied, 126 S.Ct.

174 (2005); Brown v. Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004),

cert. denied, Brown v. Lampert, 543 U.S. 1079 (2005); Evans v.

Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004).

     In a divided opinion, the Ninth Circuit held in Bockting v.

Bayer, 399 F.3d 1010 (9th Cir. 2005), that the Crawford rule should

apply on collateral review either because it represented binding

precedent but was not a new rule (Judge Noonan) or it was a new

rule under Teague v. Lane, 489 U.S. 288 (1989), but fell within one

of Teague’s exceptions (Judge McKeown).                The dissenting panel

member, Judge Wallace, took the position that Crawford did announce

a “new rule” under Teague but that Bockting did not fall within one

of the Teague exceptions and did not get the benefit of the

Crawford rule.

     The Supreme Court granted certiorari sub nom on May 15, 2006

in Whorton v. Bockting, 2006 WL 1310697, 74 USLW 33082005 (May 15,

2006).    Petitioner   relies   on    the    Ninth     Circuit’s   opinion   in

Bochting and the Supreme Court’s subsequent grant of a writ of

certiorari as support for his motion. Our precedent in Lave v.

Dretke,   holding   that   Crawford       does   not   apply   retroactively,

however, remains binding on this panel until the Supreme Court

provides contrary guidance.     Ellis v. Collins, 956 F2d 76, 79 (5th

Cir. 1992); Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir.

1986).

                                      3
     For the reasons stated above, Aguilar’s motion for permission

to file a successive petition for writ of habeas corpus is DENIED.

Aguilar’s motion for a stay of execution is also DENIED.




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