REVISED - September 22, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-20976 ____________________
ALVIN URIAL GOODWIN III
Petitioner - Appellant
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
August 17, 2000
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
KING, Chief Judge:
Petitioner-Appellant Alvin Urial Goodwin III, a Texas death-
row inmate, appeals from the district court’s denial of his
application for a writ of habeas corpus, arguing that the lower
court’s finding that he had not invoked his right to counsel
before confessing to the crime of which he was convicted is
clearly erroneous. He also requests that we revisit an
ineffective-assistance-of-counsel claim in light of the Supreme
Court’s intervening decision in Williams v. Taylor, 120 S. Ct.
1495 (2000). We decide that the lower court’s finding is not clearly erroneous and deny Goodwin’s request to revisit the
ineffective-assistance-of-counsel claim. As a result, we affirm
the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is an appeal from a judgment entered after remand.
Petitioner-Appellant Alvin Urial Goodwin III (“Goodwin”) argued
in his first appeal that the district court erred in failing to
conduct an evidentiary hearing on his claim that admission of his
confessions violated the U.S. Constitution as those confessions
were obtained after he had invoked his Fifth Amendment right to
counsel. We held in Goodwin v. Johnson, 132 F.3d 162 (5th Cir.
1998), that Goodwin was entitled to an evidentiary hearing to
resolve a factual dispute underlying his Fifth Amendment claim.
See id. at 185. The district court has conducted that hearing,
issued its findings, and entered judgment denying habeas relief.
Having described much of the factual background of this case
before, see id. at 167-68, we concentrate here only on those
aspects relevant to the issues Goodwin raises on this appeal.
Suspecting they were involved in several burglaries and
attempted burglaries, Burlington, Iowa police officers arrested
Goodwin and Billy Dan Atkins, Jr. in the early morning hours of
Saturday, January 17, 1987 after they were observed approaching
numerous parked cars. Goodwin, who was found with a loaded,
cocked weapon and a crowbar, was arrested for burglary and going
2 armed with intent. At the time he was arrested, Goodwin told
officers that his name was Bradley Douglas Murphy and that he did
not have a social security number.
According to Goodwin’s 1994 affidavit, after he was taken to
the Burlington police station, he refused to sign a waiver of
rights form and to give a statement, and instead, requested an
attorney. His affidavit states further that between the time he
requested an attorney and the time he was questioned by Texas law
enforcement officers on January 21, he was not asked any
incriminating questions. Goodwin also states that during that
same period, he gave his real name and social security number,
and was taken before a judge who informed him of the identity of
his court-appointed attorney.
Other evidence corroborates some of Goodwin’s affidavit.
Goodwin was taken before a judge twice between his arrest and his
questioning by Texas law enforcement officials. On January 17,
1987, Goodwin appeared before a judge and requested a court-
appointed attorney. After setting bond at $25,000, the judge
continued the matter until January 20, 1987, at which time he
appointed Alan Waples to be Goodwin’s counsel. Goodwin’s
investigator discovered in September, 1998 a copy of form
entitled “Statement of Rights and Acknowledgment and Waiver.”
That document, which refers to Goodwin by the alias he had given,
shows that approximately an hour and a half after Goodwin was
arrested, Lieutenant Larry E. Walker of the Burlington Police
3 Department presented Goodwin with a Statement of Rights form, on
which Goodwin’s rights to remain silent, to consult with an
attorney, and to have an attorney present during questioning were
set forth. The document also shows that Goodwin refused to sign
below the acknowledgment and waiver of the rights paragraph.
Iowa records do not indicate whether Goodwin was questioned
by Iowa police between January 17 and January 21. An affidavit
from Lt. Walker indicates that if Goodwin refused to sign the
form, “no further conversation would have taken place.” Iowa
records do indicate that on January 17, Atkins was presented with
a rights form at almost the exact time that Goodwin was. Atkins
signed his acknowledgment and waiver of rights and was thereafter
questioned by Iowa officers regarding the Iowa burglaries.
Atkins was again questioned by Iowa officers on January 21, this
time with counsel present. By January 21, Iowa officers had
twice obtained warrants and searched the residence that Goodwin
and Atkins shared.
The morning of January 21, two law enforcement officers from
Texas interviewed Goodwin regarding the murder of Douglas
Tillerson.1 Goodwin was read his Miranda rights, and he
acknowledged that he understood them. Officers described the
evidence that they had assembled (e.g., they had found
Tillerson’s body, they had the murder weapon, they had recovered
1 The officers had interviewed Atkins regarding Tillerson’s murder the previous day.
4 property taken from Tillerson’s home the night he disappeared)
and that they had a capital murder warrant for Atkins. This
prompted Goodwin to state that he, Goodwin, was “on death row”
because he was the one who had pulled the trigger.
Goodwin was then asked whether he wanted to make a
statement, and he responded that he did because he wanted to tell
what had happened. Goodwin was again read his rights, at which
point he signed the waiver of rights form. Thereafter, Goodwin
gave a video-taped confession. Officers read Goodwin his rights
one more time at the conclusion of his video-taped statement.
Later on January 21, Goodwin was flown back to Texas in the
custody of the law enforcement officers.2 The next day, after
being brought before a magistrate, Goodwin was again read his
rights, and he again agreed to waive those rights. Goodwin then
gave a written confession. He subsequently also identified
property stolen from Tillerson and the gun used by Atkins during
the robbery and the murder.
In Goodwin, we assessed whether the district court properly
granted summary judgment to Respondent-Appellee Gary L. Johnson
(hereinafter “the State”). See 132 F.3d at 169. We determined,
inter alia, that evidence in the record indicated the existence
of a genuine issue of material fact with respect to Goodwin’s
Fifth Amendment right-to-counsel claim. See id. at 182 n.15. In
2 Before departing Iowa, Goodwin, along with his counsel, appeared before a judge and signed a waiver of extradition. The Iowa burglary charges were dismissed.
5 remanding for an evidentiary hearing on the question whether
Goodwin had invoked his Fifth Amendment right to counsel prior to
being interrogated by Texas law enforcement officials, we
explicitly stated that the hearing “should not be a wide-ranging
fishing expedition, but a brief adversarial hearing concerning a
discrete factual issue.” Id. at 185 (internal quotation marks
and brackets omitted).
The court below adhered to this directive. After the
document indicating Goodwin’s refusal to sign a waiver was
discovered, and the parties had submitted the court-ordered joint
chronology of events and had completed their pre-hearing
investigation, Goodwin on December 9, 1998 filed a motion for
summary judgment. Along with its opposition to this motion, the
State filed a motion to dismiss the petition under Rules
Governing Habeas Corpus Cases Under Section 2254 9(a), arguing
that Goodwin’s use of the waiver form is barred by the doctrine
of laches, and that his delay in presenting the form prejudiced
the State’s ability to respond to Goodwin’s claim. The State
contended that the passage of time made it impossible to disprove
Goodwin’s assertions, as Lt. Walker now has no recollection of
any conversations with Goodwin and there is no alternative source
for such information.
The district court denied Goodwin’s motion for summary
judgment, and ordered a video-taped deposition of Goodwin to take
place. After completion of this deposition, the court heard oral
6 argument on the evidence. It ultimately found that Goodwin did
not invoke the right to counsel before he confessed to Texas law
enforcement officials in Iowa. The court did not rule on the
State’s Rule 9(a) motion, but found that Goodwin’s delay in
raising the issue substantially prejudiced the State’s ability to
establish precisely the sequence of events. Judgment denying
Goodwin’s application for habeas relief was entered October 18,
1999. The district court also granted Goodwin a Certificate of
Probable Cause (“CPC”). Goodwin timely appeals.
II. INVOCATION OF THE RIGHT TO COUNSEL
We will not upset the district court’s findings unless we
find clear error. See Blackmon v. Johnson, 145 F.3d 205, 208
(5th Cir. 1998), cert. denied, 526 U.S. 1021 (1999). Goodwin
points to six pieces of evidence as supporting his contention
that the district court’s finding that he had not invoked his
Fifth Amendment right to counsel is clearly erroneous: (1) his
refusal to sign his waiver form;3 (2) the extensive investigation
3 The State argues that we should declare that Goodwin’s use of this document to support his claim is barred by the doctrine of laches, and contends that we should use Rule 9(a) as a guide for our determination that the doctrine is applicable here. In effect, the State appears to argue that the principles underlying Rule 9(a) can be applied to “dismiss” individual pieces of evidence from the record. It cites no supporting authority for this argument. Although Rule 9(a) “codifies the equitable doctrine of laches as applied to habeas corpus petitions,” Walters v. Scott, 21 F.3d 683, 686 (5th Cir. 1994), we decline to use principles underlying the Rule in the fashion that the State advocates. As the Supreme Court noted in Lonchar v. Thomas, 517 U.S. 314
7 into the Iowa burglaries conducted by Iowa police officers; (3)
the interrogation of Atkins after he signed his waiver form; (4)
the cessation of Atkins’s interrogation shortly after he asserted
his right to counsel; (5) the absence of any indication that Iowa
police officers interrogated Goodwin; and (6) Goodwin’s
affidavit, video-taped deposition, and his chronology of events
evidently prepared for his trial attorney, each of which
indicates that he requested an attorney. Goodwin asserts that
this evidence is uncontroverted and allows for only one
conclusion: that he invoked his right to counsel before being
interrogated by Texas law enforcement officials.
Because Goodwin’s claim is based on events that occurred
thirteen years ago, we must proceed cautiously. As then Justice
Rehnquist stated, a federal court in our circumstances
should not lose sight of the fact that it is the habeas applicant who has the burden of proving a constitutional violation, and that no system of justice which gives both society and a defendant their due is aided by attempting to reconstruct or re-evaluate events that took place decades ago, as if it were an archaeological expedition, rather than an exercise in the administration of justice.
(1996), Rule 9(a) deals directly with delay, see id. at 326, and notably for our purposes here, does not mention the possibility of eliminating from the record evidence that surfaces after an evidentiary hearing has been ruled necessary. We are mindful of the Court’s caution against ad hoc departures from the Habeas Rules. See id. at 328-29. We also question how evidentiary hearings could be used to provide petitioners with a full and fair adjudication of their claims if the State could use Rule 9(a)’s principles to eliminate evidence discovered in preparation for those hearings simply because the passage of time makes that evidence difficult to refute.
8 Engle v. Sims, 450 U.S. 936, 941-42 (1981) (Rehnquist, J.,
dissenting from the denial of a petition for certiorari)
(internal citations omitted); see also Tyler v. Beto, 391 F.2d
993, 995 (5th Cir. 1968) (noting that a petitioner in a habeas
corpus proceeding has the burden of proof to establish sufficient
facts to warrant a finding of denial of constitutional rights).
We have reviewed and considered the portions of the record
relevant to Goodwin’s Fifth Amendment claim, and cannot say that
we are “left with the definite and firm conviction that a mistake
has been committed.” United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948).
In order for Goodwin’s confessions to be inadmissible,
Goodwin had to have affirmatively indicated to Iowa police
officers that he did not want to answer their questions without
an attorney present.4 See McNeil v. Wisconsin, 501 U.S. 171, 178
(1991) (“The rule of [Edwards v. Arizona, 451 U.S. 477 (1981)]
applies only when the suspect ‘ha[s] expressed’ his wish for the
particular sort of lawyerly assistance that is the subject of
Miranda. It requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for the
4 We note that in both his second state habeas petition and his federal habeas petition, Goodwin argued that he invoked his right to counsel when he requested a court-appointed attorney. In both cases, Goodwin provided his 1994 affidavit in support of his Fifth Amendment right-to-counsel claim. We rejected on Goodwin’s first appeal the argument that his request for a court- appointed attorney invoked Goodwin’s Fifth Amendment right to counsel. See Goodwin, 132 F.3d at 179 n.14.
9 assistance of an attorney in dealing with custodial interrogation
by the police.” (quoting Edwards, 451 U.S. at 484) (emphasis
added in McNeil)). A refusal to sign a waiver form is
insufficient to show invocation of one’s Fifth Amendment right to
counsel. See United States v. Chapa-Garza, 62 F.3d 118, 122 (5th
Cir. 1995); United States v. McDaniel, 463 F.2d 129, 135 (5th
Cir. 1972). “A refusal to sign a waiver may indicate nothing
more than a reluctance to put pen to paper under the circumstance
of custody.” Id.
Given the circumstances, the reason for Goodwin’s refusal to
sign the waiver form is not apparent. The paragraph he refused
to sign contained not only language dealing with making a
statement without counsel present, but also language stating that
he fully understood what his rights were, that he was ready and
willing to answer questions, that he waived his right to remain
silent, that he was given no promises or threats, and that no
persuasion or coercion had been used against him. The form
showed the name Goodwin had given as an alias rather than
Goodwin’s real name. Moreover, Goodwin had been arrested at the
same time as Atkins. Given this, he had no incentive to talk
with police until he learned whether Atkins was talking with
them.
Other evidence is equally ambiguous. Goodwin relies on the
fact that Iowa police did not interrogate him for four days,
arguing that this demonstrates that Iowa police officers adhered
10 to his invocation of counsel. One of Lt. Walker’s affidavits
indicates that a refusal to sign the form would have led to there
being no interrogation. Although this would appear to support
Goodwin’s contention that he had invoked his right to counsel,
the actions of Iowa police officers in questioning Atkins tend to
negate this inference. When Atkins clearly stated that he did
not wish to discuss particular topics without an attorney
present, that statement did not prevent police officers from
again questioning Atkins regarding those topics. Thus, the
evidence also supports the conclusion that Iowa police did not
interrogate Goodwin on January 17 simply because he refused to
sign the waiver form and refused to talk.
Goodwin asserts that because Iowa police were actively
investigating the burglaries Goodwin and Atkins were suspected of
committing, their failure to interrogate Goodwin over a four-day
period demonstrates he had invoked his right to counsel. Again,
although such a conclusion is possible, it is not mandated by the
evidence. At this stage, any number of possible reasons, each
perfectly consistent with normal police procedure, can be given
for why Goodwin was not interrogated. For example, the record
provides the district court with ample support for the conclusion
that police were occupied with obtaining physical evidence of
Goodwin’s and Atkins’s involvement in the burglaries they were
suspected of committing.
As Goodwin acknowledges, much of the evidence he relies upon
11 is circumstantial. His own descriptions of the events at the
time are the sole forms of direct evidence. Here, it is apparent
that the district court made a credibility determination, and
concluded that Goodwin’s statements could not be given much, if
any, weight. It was entitled to do so. See Tyler, 391 F.2d at
995 (“Credibility is for the trier of facts and the
uncontradicted testimony of a witness does not have to be
accepted.” (citing Hawk v. Olson, 326 U.S. 271, 278 (1945))).
Under the Federal Rules, we must give “due regard . . . to the
opportunity of the trial court to judge of the credibility of the
witnesses.” FED. R. CIV. P. 52(a); see also Coury v. Prot, 85
F.3d 244, 254 (5th Cir. 1996) (“The burden of showing that the
findings of the district court are clearly erroneous is heavier
if the credibility of witnesses is a factor in the trial court’s
decision.”). Thus, we cannot lightly reverse the district
court’s determination. The record provides us with little reason
to do so. Taking into consideration each of Goodwin’s
descriptions of the relevant events in Iowa that are contained in
the record, and the fact that those descriptions vary in
significant respects, we are left with the conclusion that the
district court’s finding is not clearly erroneous.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
In addition to reviewing the district court’s factual
findings, Goodwin argues that we should revisit an ineffective-
12 assistance-of-counsel claim this panel decided in Goodwin and
should order that he be given a new direct appeal. In Goodwin,
we relied on controlling circuit precedent and portions of the
Supreme Court’s reasoning in Lockhart v. Fretwell, 506 U.S. 364
(1993), to hold that Goodwin was not entitled to relief on his
claim that his counsel on direct appeal was constitutionally
ineffective because he had failed to challenge the trial court’s
refusal to modify its Texas Code of Criminal Procedure art. 38.23
instruction in the manner Goodwin requested. See Goodwin, 132
F.3d at 174. According to Goodwin, we may revisit this issue by
recognizing the applicability of an exception to the law-of-the-
case doctrine.
Under the law-of-the-case doctrine, “an appellate court’s
decision of a legal issue, whether explicitly or by necessary
implication, establishes the law of the case and must be followed
in all subsequent proceedings in the same case.” Carnival
Leisure Indus., Ltd. v. Aubin, 53 F.3d 716, 718-19 (5th Cir.
1995). Because Goodwin requests that we reconsider our own
decision, application of this doctrine is discretionary. See
Perillo v. Johnson, 205 F.3d 775, 780-81 (5th Cir. 2000). In
general, the doctrine will be applied, and a request to revisit a
prior decision will be declined, unless “(i) the evidence on a
subsequent trial was substantially different, (ii) controlling
authority has since made a contrary decision of the law
applicable to such issues, or (iii) the decision was clearly
13 erroneous and would work . . . manifest injustice.” Free v.
Abbott Lab., Inc., 164 F.3d 270, 272 (5th Cir. 1999) (internal
quotation marks omitted).
Goodwin argues that the second exception applies here. He
contends that the Supreme Court’s decision in Williams v. Taylor,
120 S. Ct. 1495 (2000), effectively rejected the analysis we
conducted in Goodwin, and that application of the proper analysis
would result in our reaching a different conclusion.5 As a
result, Goodwin further asserts that failure to revisit his
ineffective-assistance-of-counsel claim “would work a manifest
injustice.” Agostini v. Felton, 521 U.S. 203, 236 (1997)
(internal quotation marks omitted). Given the procedural posture
of this case, however, we must first assess whether our ability
to reconsider Goodwin’s ineffective-assistance-of-counsel claim
is foreclosed by the language of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214, and by the Supreme Court’s habeas jurisprudence.
Our decision in Goodwin vacated only that portion of the
district court’s judgment that dealt with Goodwin’s Fifth
Amendment right-to-counsel claim and otherwise affirmed that
judgment. See Goodwin, 132 F.3d at 192. Goodwin is before us
5 The Supreme Court’s decision in Williams was announced after the district court issued its judgment with respect to Goodwin’s Fifth Amendment claim. Thus, this is the first time Goodwin presents his argument that the Supreme Court’s Williams decision makes applicable an exception to the law-of-the-case doctrine and allows his ineffective-assistance-of-counsel claim to be revisited.
14 because the district court, on remand, again denied his
application for a writ of habeas corpus but also granted a CPC.
Under the Supreme Court’s opinion in Slack v. McDaniel, if a
petitioner initiates an appeal after the effective date of AEDPA,
the right to appeal is governed by the provisions of that law.
See 120 S. Ct. 1595, 1598 (2000). Goodwin filed his notice of
appeal on October 8, 1999. The effect of Slack is that despite
the district court’s grant of a CPC, we have before us an appeal
that is governed by AEDPA’s § 2253. We therefore treat the CPC
granted by the district court as a Certificate of Appealability
(“COA”) limited to the Fifth Amendment issue that was before that
court. See Muniz v. Johnson, 114 F.3d 43, 45 n.1 (5th Cir. 1997)
(noting that if we are confronted with a CPC in a case covered by
AEDPA’s § 2253(c)(3), we do not remand to the district court for
a specification of the issues the CPC/COA covers when only one
issue was before that court); City Pub. Serv. Bd. v. General
Electric Co., 935 F.2d 78, 82 (5th Cir. 1991) (“The district
court must comply with the appellate court’s mandate without
variance. Previously, this Court disposed of the City’s
negligence claims and remanded this case on the specific and
narrow grounds of the implied warranty claim. The limited scope
of remand precluded consideration of any other claims.” (internal
citations omitted)).
The operation of AEDPA’s § 2253 threatens Goodwin’s ability
to rely on exceptions to the law-of-the-case doctrine to have his
15 ineffective-assistance-of-counsel claim revisited. As a general
matter, parties or courts typically rely on the law-of-the-case
doctrine to prevent reassessment of issues already decided.
Thus, a prior decision controls a court’s subsequent analysis. A
decision on the applicability of the doctrine, however,
presupposes that an issue controlled by the prior holding is
properly before the court. Here, only one issue related to
Goodwin’s petition is properly before us — the Fifth Amendment
issue disposed of above. We do not have jurisdiction over any
other ground for habeas relief.6
To consider Goodwin’s ineffective-assistance-of-counsel
claim, we must identify a means of asserting jurisdiction over
it. An individual seeking to avoid the effects of an appellate
court’s prior decision may bring to that court a motion to recall
its mandate. See 18 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE
§ 134.23[3], at 134-60 (3d ed. 2000); 16 CHARLES ALAN WRIGHT, ET AL.
FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2D § 3938, at 719 (1992).
Due to the circumstances of this case and the nature of Goodwin’s
request, we consider that request as such a motion.
6 Interpreting Goodwin’s request as an application for a COA does not help him. In general, before we may consider a petitioner’s application for a COA on a particular issue, that petitioner must first submit his request to the district court and have that request denied. See, e.g., Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir. 1998) (“Compliance with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal.”). Without a ruling on whether a petitioner is entitled to a COA that covers a specific issue, we would dismiss without prejudice.
16 The Supreme Court has recognized that courts of appeals have
an inherent power to recall their mandates, the exercise of which
is subject to review for abuse of discretion. See Calderon v.
Thompson, 523 U.S. 538, 549 (1998). The issue before the
Thompson Court was whether the United States Court of Appeals for
the Ninth Circuit abused its discretion in recalling its mandate
denying habeas relief to a § 2254 petitioner. The Court
determined that whether a recall of a mandate was proper under
the circumstances must be evaluated “not only against standards
of general application, but also against the statutory and
jurisprudential limits applicable in habeas corpus cases.” Id.
at 553.
The Court noted that “[i]n a § 2254 case, a prisoner’s
motion to recall the mandate on the basis of the merits of the
underlying decision can be regarded as a second or successive
application for purposes of § 2244(b).” Id. Where a
petitioner’s first application for habeas relief has been denied,
treating a prisoner’s motion to recall the court’s mandate as a
successive application is necessary to prevent petitioners from
evading AEDPA’s bars against relitigation of previously
considered claims and against litigation of claims not presented
in a first application.7 See id. Even where a decision to
7 Thus, had we not remanded in Goodwin, and instead disposed of all of the claims Goodwin raised in his first petition for habeas relief, we would be required under Thompson to treat his motion to recall our mandate as a successive petition governed by § 2244(b).
17 recall a mandate is not based on a prisoner’s second or
successive application for relief, “a court of appeals must
exercise its discretion in a manner consistent with the objects
of [AEDPA]. In a habeas case, moreover, the court must be guided
by the general principles underlying our habeas corpus
jurisprudence.” Id. at 554.8
The Thompson Court determined that the Ninth Circuit acted
sua sponte on the basis of the petitioner’s first application for
habeas relief and thus that the court was not faced with a
successive petition. See id. As a result, the Court had
occasion to elucidate the habeas principles applicable to an
appeals court’s decision whether to recall its mandate under the
circumstances before it. Among those principles was the respect
accorded to the State’s interest in the finality of convictions.
See id. at 555-56. Concerning itself with cases where “a court
of appeals recalls its mandate to revisit the merits of its
earlier decision denying habeas relief,” the Court noted that in
such cases, the State’s interests in finality “are all but
paramount.” Id. at 557. The Court concluded that “[i]n the
absence of a strong showing of ‘actua[l] innocen[ce],’ the
State’s interests in actual finality outweigh the prisoner’s
interest in obtaining yet another opportunity for review.” Id.
(citation omitted) (alterations in original). The Court held
8 Significantly for the case before us, the Supreme Court looked to AEPDA’s provisions despite its finding that the law did not apply to the case before it. See 523 U.S. at 554.
18 “the general rule to be that, where a federal court of appeals
sua sponte recalls its mandate to revisit the merits of an
earlier decision denying habeas corpus relief to a state
prisoner, the court abuses its discretion unless it acts to avoid
a miscarriage of justice as defined by our habeas corpus
jurisprudence.” Id. at 558.
The question before us is whether we should grant Goodwin’s
motion in order to revisit an issue we have already considered on
the merits, given the existence of a Supreme Court ruling that
arguably rejects the analysis we conducted.9 Unlike Thompson, we
do not face a situation in which we previously have disposed of
all claims a petitioner raised in his first application. We find
9 In Williams, the Supreme Court rejected the Virginia Supreme Court’s application of Lockhart’s “mere outcome determination” language to modify the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), stating that Lockhart did not “justify a departure from a straight-forward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him.” Williams, 120 S. Ct. at 1513. In Goodwin, we assumed that had Goodwin’s appellate counsel included the claim at issue on direct appeal, the outcome of that appeal would have been different. See 132 F.3d at 172. We then examined whether the trial court’s error in rejecting Goodwin’s modified instruction rendered his trial fundamentally unfair or rendered Goodwin’s conviction and sentence unreliable, and determined neither was the case. See id. at 173-76. Under the Supreme Court’s recent decisions in Williams and in Smith v. Robbins, 120 S. Ct. 746 (2000), our analysis, if conducted today, would be different. This is not to say, however, that under the facts of Goodwin’s case, principles elucidated in Lockhart are inapplicable. Even Williams acknowledged a continuing role for Lockhart. See 120 S. Ct. at 1512. We also do not suggest here that a change in the analysis would necessarily result in our determining that Goodwin was entitled to habeas relief on his ineffective-assistance-of-counsel claim.
19 that this difference, however, is not sufficient to render the
Supreme Court’s Thompson reasoning wholly inapplicable to our
response to Goodwin’s motion. We note that but for the issue we
remanded to the district court, Goodwin would be required to file
a successive petition in order for his ineffective-assistance-of-
counsel claim to be revisited. Unless Goodwin satisfied the
requirements of 28 U.S.C. § 2244(b)(2), the claim would have to
be dismissed under § 2244(b)(1). Thus, it can be said that
Goodwin seeks to capitalize on the fact we remanded his case and
to have us revisit his claim now in order to avoid the effects of
§ 2244(b).
We note as well that although the State’s interest in the
finality of convictions may not have acquired the “added moral
dimension” that comes when federal proceedings have “run their
course,” Thompson, 523 U.S. at 556, that interest is not
insubstantial. Given our limited remand in Goodwin, the State
was entitled to consider Goodwin’s other claims settled by us,
and to view his Fifth Amendment right-to-counsel claim as the
sole basis available for obtaining habeas relief. By recalling
our mandate under the circumstances presented by this case, we
reduce significantly the value of limitations Congress has
imposed on the ability of prisoners to have claims subjected to
multiple reviews by federal courts.
Because the same general concerns are implicated here as
where all of a petitioner’s claims have been disposed of, we find
20 that, given the nature and procedural posture of Goodwin’s
request, we must adhere to Thompson’s directive that a federal
court of appeals “recall[] its mandate to revisit the merits of
an earlier decision denying habeas corpus relief to a state
prisoner” only where it determines that such an act is required
“to avoid a miscarriage of justice as defined by [the Court’s]
habeas corpus jurisprudence.” Thompson, 523 U.S. at 558. As the
Thompson Court made clear, this requires that Goodwin make a
showing of actual, as opposed to legal, innocence. See id. at
559 (“[T]he miscarriage of justice exception is concerned with
actual as compared to legal innocence.’” (quoting Sawyer v.
Whitley, 505 U.S. 333, 339 (1992))). Goodwin has given us no
reason to believe he is able to meet that standard. For example,
he has provided no indication that he possesses new evidence that
tends to demonstrate actual innocence. See Thompson, 523 U.S. at
559 (“‘To be credible,’ a claim of actual innocence must be based
on reliable evidence not presented at trial.” (quoting Schlup v.
Delo, 513 U.S. 298, 324 (1995)). As a result, we decide not to
recall our mandate in order to revisit Goodwin’s ineffective-
assistance-of-counsel claim.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court. All outstanding motions are denied.