Ricky Blankenship v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division

106 F.3d 1202, 1997 U.S. App. LEXIS 3244, 1997 WL 71610

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 20, 1997
• Docket: 95-40638
• Status: Published

Opinions

JERRY E. SMITH, Circuit Judge:

Ricky Blankenship appeals the denial of his petition for writ of habeas corpus. Concluding that a recently-enacted statute, 28 U.S.C. § 2254(d)(1), bars relief, we affirm.

I.

In 1988, Blankenship was convicted of aggravated robbery, sentenced to ten years in prison, and released pending appeal. On direct appeal, his court-appointed attorney, Michael Lantrip, successfully argued that the indictment was fatally deficient because it listed Blankenship’s victim as “Armando” when the actual victim was Armando’s brother, Rudolfo. The court of appeals reversed and ordered an acquittal. See Blankenship v. Texas, 764 S.W.2d 22 (Tex.App.—Texarkana 1989).

Unbeknownst to Blankenship, Lantrip had been elected county attorney shortly after he argued Blankenship’s appeal. Lantrip did not inform his client of this fact or withdraw from the case.

In January 1989, the local district attorney and the state prosecuting attorney filed petitions with the Texas Court of Criminal Appeals seeking discretionary review of the reversal. These petitions were served on Lantrip, who still was Blankenship’s attorney of record but did not inform his client of these petitions or take any action on them.

In June 1989, the Court of Criminal Appeals granted the petitions for discretionary review. Again, Lantrip did not inform his client of this event, file any brief on his behalf, appear, or take any action whatsoever. In March 1990, the Court of Criminal Appeals reversed the court of appeals, thereby reinstating the conviction, because “there was evidence that Rudolfo was known as Armando.” Blankenship v. Texas, 785 S.W.2d 158, 160 (Tex.Crim.App.1990).

Blankenship had no knowledge of these events. It came as a considerable shock to him when, some fifteen months after the reversál of his conviction by the intermediate court, the police arrived to arrest him in April 1990.

Blankenship wrote a number of letters to Lantrip but received no response. Finally, in November 1991, Lantrip answered Blankenship: “I have not withdrawn. I was elected County Attorney and by law I cannot represent a defendant in a criminal matter and also be a prosecutor for the State of Texas.”

Blankenship filed a state habeas petition, which was denied on June 24, 1994.¹ He then filed the instant federal habeas petition, alleging that he was denied effective assistance of counsel before the Court of Criminal Appeals because of Lantrip’s total inactivity and conflict of interest. The district court denied the petition, and we granted Blankenship’s motion for a certificate of probable cause (“CPC”) to appeal.²

II.

A.

A claim of ineffective assistance must be predicated upon an underlying right to the assistance of counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982) (per curiam) (“Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel_”). Thus, we must decide whether Blankenship had a right to counsel during the state-requested discretionary review. This is a matter of first'impression.

B.

The standards of review set forth in § 104(3) of the AEDPA apply to all pending habeas corpus petitions. See Drinkard v. Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), petition for cert. filed (U.S. Jan. 6, 1997) (No. 96-7359). The newly-enacted statute, to be codified at 28 U.S.C. § 2254(d)(1), states:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the. Supreme Court of the United States....

Thus, initially we must determine whether a state court has adjudicated Blankenship’s claim on the merits.

Blankenship first raised his claim to a right to assistance on discretionary review at his state habeas proceeding before the Court of Criminal Appeals,³ which denied the habe-as petition without a written order. When faced with a silent or ambiguous state habeas decision, we “look through” to the last clear state decision. See Ylst v. Nunnemaker, 501 U.S. 797, 806, 111 S.Ct. 2590, 2596, 115 L.Ed.2d 706 (1991). Where, as here, there is no clear state decision, we determine, on a case-by-case basis, whether the adjudication was “on the merits.” See Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983).

In making this determination, we consider the following factors: (1) what the state courts have done in similar eases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance upon procedural grounds rather than a determination of the merits. See id. The first and third factors are not helpful here, as we know of no other case in which a defendant has claimed a right to assistance of counsel on state-requested discretionary review, and the state court decision in the instant case is totally silent.

The second factor guides us. The state did not file a brief in opposition to Blankenship’s state habeas petition and thus did not plead any procedural ground for denying relief. See Ortega v. McCotter, 808 F.2d 406, 408 (5th Cir.1987) (assuming that the state court adjudicated the claim on the merits where the state did not raise any procedural ground for denying relief).

The state similarly has not pleaded any procedural ground for denying Blankenship’s federal habeas petition, and we are unaware of any procedural ground barring relief. In short, the Court of Criminal Appeals apparently was unaware of any procedural ground for denying Blankenship’s petition. Under these circumstances, we are confident that the Court of Criminal Appeals adjudicated Blankenship’s claim “on the merits,” as required by the AEDPA.

C.

Accordingly, by the very words of § 2254(d)(1), we must deny Blankenship relief unless that adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....”⁴ The Supreme Court never has decided whether a criminal defendant has a right to assistance of counsel on state-requested discretionary review. Therefore, we might easily say that the right was not “clearly established.”

The issue is whether the decision of the state court was reasonable at the time. “[A] reasonable, good faith application of Supreme Court precedent will immunize the state court conviction from federal habeas reversal, even if federal courts later reject that view of the applicable precedent.” Mata v. Johnson, 99 F.3d 1261, 1268 (5th Cir.1996), vacated in part on other grounds, 105 F.3d 209 (5th Cir.1997).

The controlling ease on this issue is Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In Moffitt, the petitioner was represented by counsel in the state court of appeals but was denied appointed counsel to pursue discretionary review in the state supreme court. The United States Supreme Court held that Moffitt was not entitled to appointed counsel to pursue further review.

There is considerable language in Moffitt from which a reasonable jurist could conclude that Blankenship was not constitutionally entitled to counsel on discretionary review. In Moffitt, the Court denied relief in part because Moffitt, like Blankenship, had “received the benefit of counsel in examining the record of his trial and in preparing an appellate brief,” so “his claims had ‘once been presented by a lawyer and passed upon by an appellate court.’ ” “These materials,” the Court added, “provide the [state] Supreme Court ... with an adequate basis for its decision to grant or deny review.” 417 U.S. at 614-15, 94 S.Ct. at 2446.

In other words, Blankenship, like Moffitt, had one full appeal in which he was represented by competent counsel. The Moffitt opinion can reasonably be read to say that that is all he is entitled to, regardless of which side is seeking the discretionary review.

Again, the only question is whether what happened in the state courts was “contrary to clearly established law.” Given the above-quoted language from Moffitt, one cannot reasonably conclude that the state court decision was directly contrary to Moffitt, and certainly not that what Blankenship argues for now was “clearly established.”

For one thing, we squarely reject the notion that, merely because the Supreme Court has not articulated a holding contrary to the one urged by a habeas petitioner, the Court, by its silence, took the opposite view. That is to say, we will not infer, from the absence of a Supreme Court holding granting counsel to a defendant in a state-initiated discretionary review, that in fact the Court intended for him to have such right. Rather, insofar as we reviéw state court proceedings under § 2254(d), we look to a positive pronouncement from the Supreme Court in order to meet the “clearly established” requirement of the new statute.

Nor do we attempt to make a guess as to how the Supreme Court would rule today on the issue at hand. It may very well be that, if faced with the question today, the Court would say that a defendant in Blankenship’s circumstance is entitled to counsel. We need not, and do not, decide that now. Rather, our review is limited to whether the law was “clearly established” at the time the Court of Criminal Appeals entered its judgment.

It is instructive that, instead of adopting language from prior habeas jurisprudence, Congress, in enacting § 2254(d)(1), used the words “clearly established law,” for, in another context, that phrase has a well-settled meaning that Congress may very well have used consciously in enacting the AEDPA. In Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Edüd 523 (1987), the Court announced that public officials sued individually for damages, in a Bivens⁵ action alleging violations of constitutional rights, are liable only if their actions violated standards that were “clearly established” at the time. Id. at 639, 107 S.Ct. at 3038 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). In explaining what is meant by “clearly established,” the Court explained that “[tjhis is not to say that an official action is protected ... unless the very action in question has previously been held unlawful, ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Id. at 640, 107 S.Ct. at 3039.

While we do not mean to engraft the law of qualified immunity onto habeas jurisprudence, the same reasoning may properly be applied here in understanding what is meant by “clearly established.” As we have said, the Court in Moffitt gave, as one of its reasons for denying relief to a defendant who himself sought discretionary review, the fact that the defendant had had full benefit of counsel at the first appellate stage of the proceedings. Blankenship is in a similar situation, having been represented by Lantrip in the state court of appeals.

Considering the issue from the point of view of the Court of Criminal Appeals at the time it decided Blankenship’s case, and giving that court the deference the AEDPA requires, we cannot say that, in the words of Anderson v. Creighton, “the unlawfulness [of the court’s ruling was] apparent.” The explanation presented in Moffitt certainly could have given a reasonable jurist the impression that a defendant who once enjoyed the benefit of counsel to review the record, prepare a brief, and muster the evidence was not entitled to counsel on discretionary review, regardless of who requested that review. That would have been, as we articulated it in Mata, “a reasonable, good faith application of Supreme Court precedent.” Mata, 99 F.3d at 1268.

Although one might also reasonably have concluded, from Moffitt, that a defendant should be afforded a lawyer to defend a state-initiated petition, that is not the question we are to decide under § 2254(d). The AEDPA tells us to consider habeas relief only if the law was “clearly established.”

We are bound by the rigid constraints of the AEDPA and are not free to decide this question for the state court with the benefit of hindsight. Congress has made it plain that we may undermine the state courts in proceedings such as this only if their decisions are contrary to clear, then-existing Supreme Court precedent.

There is no such governing precedent here; the Supreme Court has never decided whether a criminal defendant has a right to assistance of counsel on state-requested discretionary review. Therefore, the Court of Criminal Appeals’s adjudication was not contrary to clearly established federal law, as determined by the Supreme Court, and we are bound by the statute to deny relief.

AFFIRMED.

1 . For the first time on appeal, Blankenship argues that he is entitled to relief on the ground of double jeopardy. As he failed to present this issue to the state courts as required by 28 U.S.C. § 2254(b)-(c), we may not review this claim. See Bufalino v. Reno, 613 F.2d 568 (5th Cir.1980).

2 . The Antiterrorism and Effective Death Penally Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), amended 28 U.S.C. § 2253 to require a "certificate of appealability” ("COA") before a final order in a habeas proceeding can be appealed. The standard for issuing a COA is the same as that for issuing a CPC. See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 746, 136 L.Ed.2d 684 (1997). We granted Blankenship a CPC prior to April 24, 1996, the effective date of the new act. There is no need for a COA here, to enable our appellate review, for “the COA requirement of the AEDPA will not apply to habeas appellants who have already obtained CPCs." Brown v. Cain, 104 F.3d 744, 749 (5th Cir.1997).

3 . In Texas, all post-conviction habeas petitions are decided by the Court of Criminal Appeals. See Tex.Code Crim.Proc.Ann. art. 11.07, § 3(a) (Vernon Supp.1996).

4 . It is settled that the "contrary to” prong applies to questions of law, such as the question at issue here. See Lockhart v. Johnson, 104 F.3d 54, 56 (5th Cir.1997); Drinkard, 97 F.3d at 768.

5 . See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).