Opinion
No. 10-40326 Summary Calendar.
June 15, 2011.
Willis Joseph Reed, Tennessee Colony, TX, pro se.
Cara Hanna, Assistant Attorney General, Carole Susanne Callaghan, Assistant Attorney General, Office of the Attorney General, Austin, TX, for 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.
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.
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, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Smith, 216 F.3d at 524.
AFFIRMED.