IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-10711
_____________________
RICHARD DONALD FOSTER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(4:92-CV-615)
_________________________________________________________________
April 14, 2000
Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Richard Foster has been sentenced to death by the State of
Texas. After exhausting his state remedies, he filed a habeas
corpus petition in federal district court. It was denied, and he
appealed to us. We then received notice from his counsel stating
that Mr. Foster intended to withdraw his appeal despite the
existence, according to counsel, of meritorious claims. The notice
was signed by counsel but did not include a signed affidavit by Mr.
*
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this opinion should not be published and is not precedent except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.
Foster. We remanded to the district court for a hearing to confirm
that this was Mr. Foster’s wish and that he understood the
ramifications of his decision. The district court held that
hearing with Mr. Foster, his attorney, and the state attorney
present. In written findings, the district court concluded that
Mr. Foster’s waiver was intentional and informed. We entertain no
doubts about these findings and conclusions.
There is no federal law mandating habeas corpus review of a
death sentence.1 And Mr. Foster’s lawyer cannot pursue an appeal
on his clients behalf because counsel lacks both Article III
standing and status as a “next friend.” See Whitmore v. Arkansas,
495, U.S. 149, 154-66, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). For
these reasons, we will allow Mr. Foster to withdraw his appeal.
APPEAL DISMISSED.
1
Some states have laws that mandate state appellate review in
death penalty cases. See Autry v. McKaskle, 727 F.2d 358, 361 (5th
Cir. 1984)(“A state may require reasonable proceedings to protect
its own interest in integrity of process, and may refuse to allow
a defendant to avoid an appeal required by state law in death
cases.”); Massie v. Sumner, 624 F.2d 72, 74 (9th Cir.
1980)(allowing state to impose mandatory appeal in death penalty
case).
2