¶1*107Gregory Bialecki, David A. Hoffman, Amy B. Rifkind, Hill & Barlow, Boston, MA, and Alan H. Katz, New Orleans, LA, for appellant.
¶2Harry Conniek, Dist. Atty. and Charmagne Padua, Asst. Dist. Atty., New Orleans, LA, for appellee.
¶3Before POLITZ, Chief Judge, GARWOOD and SMITH, Circuit Judges:
¶5Scheduled for execution between midnight and 3:00 a.m. on May 16, 1995, Thomas Lee Ward seeks a certificate of probable cause to appeal the denial of his petition for habeas corpus and a stay of his execution. Binding precedent precludes debate among jurists of reason about a dispositive issue and we must therefore deny the application for CPC and a stay.
¶6We do not repeat the factual background and procedural posture of this case but refer to prior opinions.1 In the petition at bar, Ward’s third,2 the sole claim is that his jury was given the identical reasonable doubt instruction that the Supreme Court held to be constitutionally infirm in Cage v. Louisiana.3 Assuming for today’s disposition that Cage is retroactive,4 the dispositive issue is whether Ward has shown cause and prejudice, or alternatively, a fundamental miscarriage of justice which would satisfy the requirements of Rule 9(b) of the Rules Governing Section 2254 Cases.5
¶7*108In James v. Cain6 we very recently rejected the assertion of cause for not raising a Cage claim in earlier petitions, finding that the claim reasonably was available since the early 1980s. The effect of James is to relegate Ward’s efforts to avoid the limitation of Rule 9(b) to the fundamental-miscarriage-of-justice exception. As defined by the Supreme Court, that exception is confined to cases of actual innocence, where the petitioner shows, as a factual matter, that he did not commit the crime of conviction.7 Ward has made no showing that it is more likely than not that no reasonable juror would have found him guilty if given a correct instruction.8 Accordingly, under controlling precedent we may not find a miscarriage of justice.
¶8The application for a certificate of probable cause and the motion for a stay are DENIED.
¶18concurring:
¶19I fully concur with the foregoing, adding that I share the concern voiced by the district court that a person may be executed when there effectively appears, in the words of Justice Sealia, to be “no jury verdict of guilty-beyond-a-reasonable-doubt.” Sullivan v. Louisiana, — U.S.-,-, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182, 189 (1993). With respect to the holding of James v. Cain, 50 F.3d 1327 (5th Cir.1995), regarding the availability of a Cage claim, I am mindful of the Louisiana Supreme Court’s observation that the prevailing view during the 1980s was to reject challenges to reasonable doubt instructions. State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, — U.S. -, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993).