case_cite">722 F.2d 104

Robert Wayne WILLIAMS, Petitioner-Appellant,
v.
John T. KING, Secretary of the Department of Corrections,
and Ross Maggio, Jr., Warden, Louisiana State
Penitentiary, Respondents-Appellees.

No. 83-3767.

United States Court of Appeals,
Fifth Circuit.

Dec. 13, 1983.

Samuel S. Dalton, Jefferson, La., for petitioner-appellant.

Ossie B. Brown, Dist. Atty., Parish of East Baton Rouge, La., William J. Guste, Atty. Gen., State of La., Baton Rouge, La., for respondents-appellees.

On Application for Certificate of Probable Cause and for Stay of Execution Pending Appeal.

Before BROWN, REAVLEY and HIGGINBOTHAM, Circuit Judges.

BY THE COURT:

Williams seeks in this successive writ petition a certificate of probable cause and stay of execution. He claims he was denied the right personally to decide whether to testify at the guilt and sentencing phases of trial and that his counsel was ineffective both in appropriating his decision and in the decision they made. We are to grant Williams' request if reasonable jurists would differ as to his right to relief. Persuaded that they would not, the application for certificate of probable cause and stay of execution are DENIED.

Williams' present claim indisputably abuses the Great Writ. Williams omitted the present specification of ineffective assistance of counsel from his two earlier federal writs. Over one and a half years ago this court sitting en banc examined Williams' claims of ineffective trial counsel and concluded that the claims were spurious. The only explanation for not asserting this claim in either of his previous writs where other claims of ineffective assistance of counsel were made and rejected is that he did not learn of the claim until December 5, 1983. This is not sufficient. Since his trial, Williams has been represented by at least two different sets of counsel whose competence he does not challenge. Certainly Williams and his competent counsel knew that Williams did not testify and Williams knew, according to his present claim, that he did not make the decision.

But the power invoked by the Great Writ is equitable. We would not find abuse if the asserted right were such that declining to reach it would be unjust. On the history of this case this we cannot say.

The Application for Certificate of Probable Cause and Stay of Execution Pending appeal is DENIED.

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