Thompson v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 29, 2002
• Docket: 02-30150
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30150 Conference Calendar

ARTHUR THOMPSON,

Petitioner-Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 01-CV-361-B -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Arthur Thompson, Louisiana prisoner # 127301, appeals the

district court's denial of his 28 U.S.C. § 2254 petition as

untimely. The district court granted Thompson a certificate of

appealability on the issue whether Campbell v. Louisiana, 523

U.S. 392, 401 (1998), announced a new rule of constitutional law

that has been made retroactively applicable to cases on

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-30150 -2-

collateral review. Thompson argues on appeal that his petition,

in which he raised a Campbell claim, was timely filed.

We review the district court's findings of fact for clear

error and issues of law de novo. Evans v. Cockrell, 285 F.3d

370, 374 (5th Cir. 2002).

In Campbell, the Supreme Court held, on direct review from a

criminal conviction, that a white defendant possessed standing to

object to discrimination against black people in the selection of

his grand jury. Campbell, 523 U.S. at 400. Although we recently

held that Campbell did not announce a new rule of constitutional

law, Thompson, a black male, did not have to wait for the

decision in Campbell to raise his claim concerning the racial

composition of the grand jury. See Rideau v. Whitley, 237 F.3d

472, 484 (5th Cir. 2000), cert. denied, 533 U.S. 924 (2001); see

also Rose v. Mitchell, 443 U.S. 545, 551 (1979)(citing to

numerous cases). Consequently, Thompson did not file his

petition for a writ of habeas corpus within the time limits

provided in 28 U.S.C. § 2244(d). Accordingly, the district

court’s order dismissing his petition as untimely is AFFIRMED.

In light of the foregoing, Thompson’s request for appointment of

counsel is DENIED.

AFFIRMED; MOTION DENIED.