IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-10511
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IN RE: DAVID LEE GOFF,
Movant.
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Motion for an order authorizing the United States District Court
for the Northern District of Texas, Fort Worth Division, to
consider a successive habeas 28 U.S.C. § 2254 application, and
Motion for stay of execution
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April 25, 2001
Before JOLLY, SMITH and PARKER, Circuit Judges.
PER CURIAM:
David Lee Goff, convicted of capital murder by the State of
Texas in November 1991, has filed a motion in this court for
permission to file a second federal habeas petition and a motion
for stay of execution. Goff’s initial request for a Certificate of
Appealability was denied by this court on September 8, 2000. Goff
v. Johnson, No. 99-10305 (5th Cir. Sept. 8, 2000). In his motion
for permission to file a successive petition, Goff claims that his
initial state habeas counsel was ineffective for failing to raise
critical issues as to the ineffectiveness of his trial counsel to
investigate alibis. As a result, Goff claims that he was
foreclosed from raising the ineffectiveness issue in his first
federal habeas petition. Because his state habeas counsel was
ineffective, Goff argues that his claim for relief falls within an
exception to the ban on successive federal habeas filings outlined
in the Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2244(b)(2).
The factual and procedural history of this case can be found
in the Texas Court of Criminal Appeals’ decision affirming Goff’s
conviction and sentence. Goff v. State, 931 S.W.2d 537 (Tex. Cr.
App. 1996). Briefly, the evidence shows that on September 1, 1990,
Goff stopped by the home of a friend, Craig Ford, and offered to
give Ford a ride to his mother’s house. Ford followed Goff out to
a blue panel van. The victim was sitting in the driver’s seat of
the van. Ford sat in the rear of the van and Goff sat in the
passenger seat.
The victim drove the van for a few minutes when Goff asked the
victim to pull over so he could relieve himself. Goff returned to
the van, reentered the passenger seat, and pointed a pistol at the
victim. Goff then grabbed the victim, threw him onto a mattress in
the back of the van, and handcuffed the victim’s hands behind his
back. Goff then shoved Ford towards the driver’s seat and told him
to drive.
Goff told Ford to find a dark street, and Ford drove the van
for several miles. At that point, Ford heard a single gunshot in
the back of the van. Ford pulled the van over near a secluded
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wood. After he attempted to help Goff remove the victim’s body
from the van, Ford fled the scene. Goff disposed of the body and
chased after Ford. He caught up with him and pulled out his gun,
ordering Ford to return to the van. The two returned to the
apartment where both of their girlfriends resided.
Testimony at trial pieced together the ensuing events. A
neighbor testified that Goff asked him to burn a van parked nearby
and told him not to worry about what was inside the van. The
neighbor declined. In addition, the daughter of Goff’s girlfriend
testified that Goff returned to the apartment that day with blood
on his pants and shirt. She also testified that both Goff and Ford
paced around the home, looked out the windows, and conversed
secretively that evening. She finally contacted police when she
heard news reports of the victim’s murder several days later.
The victim’s body was found three days later. The cause of
death was determined to be a single gunshot wound to the head.
Goff was thereafter tried and convicted of murder in the course of
kidnapping or burglary and sentenced to death. The Texas Court of
Criminal Appeals affirmed the sentence in May 1996, and the United
States Supreme Court denied Goff’s petition for a writ of
certiorari. Goff v. Texas, 520 U.S. 1171 (1997).
Goff filed his first state habeas petition in December 1997.
That petition was denied in June 1998. In September 1998, Goff
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filed a petition for federal habeas relief in the United States
District Court for the Northern District of Texas. The petition
was denied on January 19, 1999, and this court denied Goff’s
request for a Certificate of Appealability on September 8, 2000.
Goff then filed a second application for post-conviction
relief in the Texas Court of Criminal Appeals, arguing that he was
appointed incompetent state habeas counsel, which violated his
statutory right to competent counsel in Texas and his right to due
process under the Fourteenth Amendment. That petition was denied
on April 24, 2001.
Goff now seeks authority from this court to file a successive
federal habeas petition under 28 U.S.C. § 2244(b)(3)(A). Goff is
prohibited from filing a second federal habeas petition raising a
new claim unless he can show that “the factual predicate for the
claim could not have been discovered previously through the
exercise of due diligence” and “the facts underlying the claim, if
proven and viewed in the light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.” 28 U.S.C. §
2244(b)(2)(B).
Goff’s claims for relief are without merit. The Supreme Court
has explicitly held that there is no protected Sixth Amendment
right to counsel in state post-conviction proceedings.
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Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Goff argues
that, despite this fact, if a state chooses to create a statutory
system whereby counsel is appointed for state habeas petitioners,
the state must appoint competent counsel as determined by the Sixth
Amendment and due process.
In Finley, the Supreme Court determined that, because the
state has no obligation to provide habeas counsel, the fact that
the state chooses to appoint counsel for post-conviction
proceedings does not trigger the protections of the Constitution:
Since respondent has no underlying constitutional right
to appointed counsel in state postconviction proceedings,
she has no constitutional right to insist on the Anders
procedures which were designed solely to protect that
underlying constitutional right.
Id. The Supreme Court continued to reject Finley’s argument that
Evitts v. Lucey, 469 U.S. 387 (1985), requires that a state comply
with due process requirements once it chooses to provide post-
conviction counsel. Indeed, Goff relies primarily on Evitts in his
motion before this court. The Finley court distinguished Evitts
and concluded that “[w]e think that Evitts provides respondent no
comfort.” 481 U.S. at 558.
In its concluding paragraph, the Finley court emphasized the
force of its holding:
At bottom, the decision below [finding a right to
competent counsel in post-conviction proceedings] rests
on a premise that we are unwilling to accept--that when
a State chooses to offer help to those seeking relief
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from convictions, the Federal Constitution dictates the
exact form such assistance must assume. On the contrary,
in this area States have substantial discretion to
develop and implement programs to aid prisoners seeking
to secure postconviction review. In Pennsylvania, the
State has made a valid choice to give prisoners the
assistance of counsel without requiring the full panoply
of procedural protections that the Constitution requires
be given to defendants who are in a fundamentally
different position--at trial and on first appeal as of
right. In this context, the Constitution does not put
the State to the difficult choice between affording no
counsel whatsoever or following the strict procedural
guidelines enunciated in Anders.
Id. at 559. Incidentally, the Finley holding was reaffirmed and
expanded upon in Coleman v. Thompson, 501 U.S. 722, 757 (1991), in
which the Supreme Court found that “[b]ecause Coleman had no right
to counsel to pursue his appeal in state habeas, any attorney error
that led to the default of Coleman’s claims in state court cannot
constitute cause to excuse the default in federal habeas.”
While Finley involved the application of Anders in state post-
conviction proceedings, the Fifth Circuit has directly addressed
the issue of ineffective assistance. In Irving v. Hargett, 59 F.3d
23 (5th Cir. 1995), this court noted that, absent a showing of
cause, a habeas petitioner was bound to assert ineffective
assistance claims in his first federal habeas petition. Recalling
that a petitioner does not have a constitutional right to counsel
in post-conviction habeas proceedings, the panel concluded that
“error or misconduct by Irving’s counsel cannot establish cause for
his failure to appeal the rejection of these claims in his first
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federal habeas proceedings.” Id. at 26.
A year later, in Callins v. Johnson, 89 F.3d 210 (5th Cir.
1996), this court reiterated that the failure of a habeas attorney
to raise and preserve an issue cannot constitute cause and thus
cannot authorize a successive habeas petition. The court stated:
Counsel’s ineffectiveness will constitute cause only if
it is an independent constitutional violation, and there
is no constitutional right to counsel in habeas
proceedings. Thus, no error by habeas counsel can ever
constitute cause for abusing the writ.
Id. at 212 (citations omitted).
Goff attempts to undercut the strong precedent on this issue
by citing a 1966 Fifth Circuit case in which this court stated that
“[h]aving invoked the Texas statutes granting post-conviction
hearings, [the petitioner] had the right to be tried according to
the substantive and procedural due process requirements of the
Fourteenth Amendment.” Welch v. Beto, 355 F.2d 1016, 1020 (5th
Cir. 1966). While the Welch holding does hint at some form of due
process right once a state decides to provide a non-
constitutionally obligated service, the Supreme Court has spoken
quite explicitly on this subject since Welch and has repeatedly
emphasized that ineffective assistance of counsel in a post-
conviction proceeding cannot serve as cause to excuse default in a
federal habeas proceeding. To that extent, at least, Welch has
been overruled and is no longer valid law in this circuit.
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As to Goff’s underlying claim that his trial counsel was
ineffective in not investigating the witnesses that he claims would
have put him in a different location at the time of the murder,
Goff presents only minimal evidence to suggest that prejudice
resulted from this alleged failure to investigate. Indeed, Goff
concedes that he has been unable to locate two of the four
witnesses that supposedly would provide an alibi, and the two
witnesses that are prepared to provide an alibi are Goff’s
grandmother and sister-in-law. Based on the facts, presented by
Goff, underlying his claim of ineffective assistance at trial, and
based on the Supreme Court’s determination that Goff’s claim is not
constitutionally cognizable, we cannot say that Goff has
established by “clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.” 28 U.S.C. §
2244(b)(2)(B)(ii).
In sum, the issues raised in Goff’s motion have no merit and
lack any support in Supreme Court or Fifth Circuit precedent.
Because Goff has failed to show why he is entitled to file a second
habeas petition under 28 U.S.C. § 2244(b)(2)(B), it is ORDERED that
movant’s motions for permission to file a successive application
for writ of habeas corpus and stay of execution are
D E N I E D.
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