Dennis Thomas v. Timothy Keith, Warden
UNPUBLISHED OPINION FILED. [13-30998 Affirmed ] Judge: EGJ , Judge: RHB , Judge: PRO Mandate pull date is 04/17/2015 [13-30998]
Date Filed: 03/27/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
March 27, 2015
DENNIS D. THOMAS,
Lyle W. Cayce
Petitioner - Appellant
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:12-CV-575
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Pursuant to the requisite certificate of appealability, and proceeding pro
se, Dennis D. Thomas, Louisiana prisoner # 533237, challenges the dismissal
of his habeas-corpus application contesting his conviction for manslaughter.
Thomas asserts the court erred in concluding his ineffective-assistance-ofcounsel claims are procedurally barred because of the state appellate court’s
reliance on his failure to comply with a briefing rule.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
Date Filed: 03/27/2015
This court does not reach that question. Instead, and as respondent
asserts correctly, the judgment must be affirmed because Thomas failed to
exhaust his ineffective-assistance-of-counsel claims by fairly presenting them
to the Louisiana Supreme Court prior to seeking federal habeas relief. 28
U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 29 (2004). Thomas has
not filed a reply brief and has not shown that, if he returns to state court in an
effort to exhaust, the state courts will not find his constitutional claims barred
as successive and untimely. See Sones v. Hargett, 61 F.3d 410, 416-18 (5th Cir.
Thomas contends his appellate attorney failed to assert his ineffectiveassistance-of-counsel claims in his application for discretionary review in the
state supreme court.
Appellate counsel are not required to raise every
nonfrivolous issue, and Thomas does not explain why his attorney’s failure to
raise his ineffective-assistance-of-trial-counsel claims was professionally
unreasonable or affected the fundamental fairness of the entire proceedings.
E.g., Givens v. Cockrell, 265 F.3d 306, 310 (5th Cir. 2001). He has also not
shown cause and actual prejudice excusing his failure to exhaust on some other
basis, or that the failure to consider his constitutional claims will result in
a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750
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