IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20015
Summary Calendar
BAMIDELE OLALUMADE
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 Southern District of Texas
USDC No. H-98-CV-691
June 16, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Olalumade was convicted of solicitation to commit capital
murder on May 13, 1994. His conviction was affirmed on direct
appeal on May 23, 1996. Olalumade did not file a petition for
discretionary review. He filed a state application for writ of
habeas corpus, which was denied on December 18, 1997, and he filed
a petition for writ of habeas corpus in the district court on March
*
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this opinion should not be published and is not precedent except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.
9, 1998. The district court dismissed Olalumade's petition on the
merits, and we AFFIRM.
Olalumade claims that he was denied effective assistance of
counsel in violation of the 6th Amendment. He asserts that his
attorney (1) failed to perfect his direct appeal and to cite
authority to support one of his five points of error in the appeal
resulting in the waiver of that point of error, (2) failed to
inform him of the disposition of his direct appeal, and (3) failed
to inform him that he could file a petition for discretionary
review.
Since the Court of Appeals for the Fourteenth Judicial Circuit
of Texas decided Olalumade's direct appeal, his claim that the
appeal was not perfected is manifestly false. Olalumade also
asserts his attorney's inadequate briefing constituted ineffective
assistance of counsel. The state appellate court deemed waived his
claim that the state trial court erred in failing to instruct the
jury on the defense of duress, because Olalumade's attorney cited
no authority in her brief to the appellate court to support that
point of error. However, the appellate court also noted that the
evidence Olalumade presented did not appear to support the defense
of duress under Texas law. To state a claim of ineffective
assistance of appellate counsel, a petitioner must show performance
of counsel so deficient as to fall below objectively reasonable
conduct of appellate counsel and resulting prejudice. See Williams
2
v. Collins, 16 F.3d 626, 634-35 (5th Cir. 1994). There is prejudice
where there is a reasonable probability that, but for the deficient
performance of counsel, the result on appeal would have differed.
See Moss v. Collins, 963 F.2d 44, 47 (5th Cir. 1992). Olalumade
has not shown any probability that the result of the appeal would
have been different had his counsel cited authority on that one of
his five points of error.
Olalumade claims that his appellate counsel failed to inform
him of the disposition of his direct appeal. His attorney
presented an affidavit in which she stated that she did in fact
inform him of the state appellate court's affirmance of his
conviction, and Olalumade presented affidavits from prison mail
room employees who stated that their review of mail records showed
no letter from his attorney. We review the district court's
findings of fact for clear error. See Fairman v. Anderson, 188
F.3d 635, 640 (5th Cir. 1999). We are not persuaded that the
magistrate judge erred in his findings of fact.
Finally, Olalumade argues that his attorney failed to inform
him of his right to file a petition for discretionary review.
Olalumade argues that he was denied effective assistance of counsel
because his appellate counsel failed to inform him that he could
seek discretionary review after his direct appeal. His appellate
attorney stated that she did so inform him, and the magistrate was
convinced that Olalumade's claim was not supported by the facts.
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We see no error in the magistrate's findings of fact.
Furthermore, there is no right to counsel to prepare petitions
for discretionary review. See Ross v. Moffitt, 417 U.S. 600, 619
(1974). In Wainwright v. Torna, the Court reversed this court's
grant of the writ of habeas corpus to a petitioner who claimed
ineffective assistance of counsel because his counsel failed to
timely file a petition for discretionary review. See Wainwright v.
Torna, 102 S.Ct. 1300, 1301 (1982). The Court held that under Ross
v. Moffitt, the petitioner could not claim ineffective assistance
of counsel for failure to perfect a petition for discretionary
appeal since there was no right to counsel on discretionary review.
See id.
Olalumade's argument amounts to the claim that his counsel on
direct appeal was ineffective rather than any claim about the
conduct of a discretionary appeal that never occurred.
Nevertheless, Olalumade argues that he was harmed by the attorney's
failure to inform him of his right to petition for discretionary
review because that prevented him from doing so. The alleged
attorney misconduct in this case is equivalent to that in
Wainwright v. Torna, in which the Supreme Court held that no
constitutional right was implicated. Olalumade does not argue that
his attorney's conduct had any effect on his direct appeal of
right.
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Since Olalumade filed his petition after the effective date of
the Antiterrorism and Efffective Death Penalty Act ("AEDPA"), its
provisions govern his claim. See Green v. Johnson, 116 F.3d 1115,
1119-20 (5th Cir. 1997). Olalumade's claims were presented to the
Texas Court of Criminal Appeals in his state application for writ
of habeas corpus. The state court denied his claims. When the
Texas Court of Criminal Appeals denies a claim, that claim has been
adjudicated on the merits. See Ex parte Torres, 943 S.W.2d 469,
472 (Tex. Crim. App. 1997). When a petitioner's claim has been
adjudicated on the merits in state court proceedings, a federal
court shall not grant a writ of habeas corpus unless the state
court's 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;
or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The state court's disposition of this claim
was consistent with existing Supreme Court precedent, and its
application of the law to the facts was reasonable. The magistrate
judge correctly determined that Olalumade was not entitled to
relief.
Under Teague v. Lane, new rules of criminal procedure will not
be established on collateral review. See Teague v. Lane, 489 U.S.
288 (1989). The State raises the Teague defense for the first time
5
on appeal. We have discretion to apply the Teague bar even though
the state has waived the defense. See Caspari v. Bohlen, 510 U.S.
383, 389 (1994). This court refused to apply the Teague defense
the state waived in Blankenship v. Johnson, 188 F.3d 312, 316 (5th
Cir. 1997). There, the petitioner claimed ineffective assistance
of counsel for failing to inform him of the possibility of
discretionary appeal, including the state's petition for
discretionary appeal that resulted in the reinstatement of his
conviction. See id. In view of the disposition of this appeal, we
do not decide whether to apply the Teague bar under these different
circumstances.
Since Olalumade's arguments supporting his claim of
ineffective assistance of counsel lack merit, we affirm the
dismissal of his petition.
AFFIRMED.
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