IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-30440 Summary Calendar _____________________

LAWRENCE R. PITTMAN, SR., also known as Terry Hill,

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. 99-CV-2396-H _________________________________________________________________ January 11, 2001

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Lawrence R. Pittman, Sr., Louisiana prisoner # 101703, appeals

the district court’s denial of his

petition. The

district court granted Pittman a certificate of appealability on

the issue whether he “was denied due process through the use of a

jury instruction alleged to be unconstitutional under Cage v.

Louisiana,”

(1990). The district court held that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. federal review of the Cage issue was procedurally barred because

the state court’s decision rested on an independent and adequate

state ground.

The last state court rendering a reasoned judgment in

Pittman’s case explicitly rejected his Cage claim based on an

independent and adequate state law procedural ground, namely, La.

Code Crim. Proc. Ann. art. 930.8. See Glover v. Cain,

(5th Cir. 1997). A habeas petitioner can overcome his

procedural default by showing “cause” for the default and

“prejudice” as a result of the alleged violation. See Moore v.

Roberts,

(5th Cir. 1996). Pittman’s claim that

the “cause” for his untimely application for relief was his

inability to timely obtain, despite several requests, a copy of the

jury instructions used at his trial is insufficient. Glover,

.

A petitioner may nevertheless overcome a procedural bar

without demonstrating cause and prejudice by showing that failure

to consider the claim will result in a fundamental miscarriage of

justice, because, as a factual matter, he did not commit the crime

of conviction. See Ward v. Cain,

(5th Cir. 1995).

Pittman has not shown that a fundamental miscarriage of justice

will occur if the court does not consider his claims because he is

actually innocent of the underlying offense. Pittman has therefore

2 failed to show that the district court erred in holding that his

Cage claim was procedurally barred. Accordingly, the judgment of

the district court is

A F F I R M E D.

3