IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-10297
_____________________
GARY STERLING,
Petitioner-Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal Justice,
Institutional Division
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(June 22, 1995)
_________________________________________________________________
( )
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In our earlier consideration of this death penalty habeas
case, the petitioner sought a CPC and an order holding his
unexhausted federal habeas petition in abeyance so that he could
use federally appointed and paid counsel to exhaust his state
postconviction claims. We denied a CPC because he failed to
exhaust his postconviction claims, and we held that the petitioner
had no statutory right to federally funded counsel to exhaust state
remedies in state court. The Supreme Court granted a stay and
vacated1 our prior opinion of July 1, 1994, reported at 26 F.3d 29
(5th Cir. 1994). The Court has remanded this case to us for
further consideration in the light of McFarland v. Scott, ___ U.S.
___, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). McFarland held that
a capital defendant's right to federally appointed and funded
counsel attaches upon the filing of a motion for appointment of
counsel, notwithstanding that the defendant has not yet filed a
formal federal habeas corpus petition. In accordance with the
remand, we withdraw our earlier opinion and substitute the
following:
OPINION ON REMAND FROM SUPREME COURT
The basic question presented in the appeal before us is
whether an indigent state death row petitioner, who has failed to
exhaust state remedies, may secure federally appointed and paid
counsel to exhaust state remedies.
The federal district court dismissed Gary Sterling's habeas
corpus action for failure to exhaust state remedies and denied his
application for a certificate of probable cause ("CPC"). Sterling
asks this court for a CPC and for an order holding his federal
petition in abeyance so that he may use federally funded counsel to
pursue his state postconviction remedies. Because we hold that the
petitioner has not exhausted his postconviction claims, we deny a
CPC. Further, because we hold that he has no statutory right to
1
Sterling v. Texas, ___ U.S. ___, 115 S.Ct. 503, 130 L.Ed.2d
412 (1994).
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federally funded counsel to pursue his postconviction claims in
state court, we deny his request for an order holding his federal
petition in abeyance.
I
A Texas jury, based in part on the defendant's confession,
convicted Gary Sterling of murdering his robbery victim by bashing
his head with a bumper jack. Sterling v. State, 830 S.W.2d 114,
116 (Tex. Crim. App. 1992), cert. denied, ___ U.S. ___, 113 S.Ct.
816, 121 L.Ed.2d 688 (1992). The Texas jury, based in part upon
evidence of Sterling's other murders and the testimony of a
district attorney that he had never "run across . . . a more
violent mass murderer than Gary Sterling," sentenced the defendant
to death. Id. at 120.
II
Seeking relief from his death sentence, Sterling filed a
motion for stay of execution and for appointment of counsel in the
United States District Court for the Northern District of Texas on
January 22, 1993--just a few days before his scheduled execution
date. Sterling filed with this motion a petition for writ of
habeas corpus raising only claims identical to those he argued on
direct appeal. The federal district court granted the stay of
execution and appointed federally funded counsel pursuant to 21
U.S.C. § 848(q)(4)(B).2 Sterling then filed an amended habeas
2
This appointment of counsel statute requires the appointment
of counsel for an indigent defendant challenging his death sentence
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corpus petition asserting thirty-nine grounds for relief. Only
five of those grounds had been addressed previously by Texas
courts. The state moved to dismiss Sterling's federal habeas
petition for failure to exhaust state remedies. Sterling argued
that in order to allow him properly to preserve his unexhausted
claims for habeas review, the federal habeas proceeding should be
held in abeyance so that he could enjoy his federal statutory right
to counsel while exhausting his state remedies. The district
court, agreeing with the magistrate judge to whom the case was
referred for recommendation, dismissed Sterling's habeas petition
for failure to exhaust state remedies and denied Sterling's
application for a CPC.
III
A
Sterling now applies to us for a CPC in order to allow an
appeal from the district court's denial of his federal habeas
petition. Unless we grant a CPC, we have no jurisdiction to hear
an appeal from denial of habeas relief. Black v. Collins, 962 F.2d
394, 398 (5th Cir.), cert. denied, 504 U.S. 992, 112 S.Ct. 2983,
119 L.Ed.2d 601 (1992). To obtain a CPC, Sterling must make a
substantial showing that he has been denied a federal right.
Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77
in any postconviction proceeding under 28 U.S.C. § 2254 or 28
U.S.C. § 2255. We discuss this statute in more detail later in
this opinion.
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L.Ed.2d 1090 (1983). A fundamental prerequisite to federal habeas
relief under 28 U.S.C. § 2254 is the exhaustion of all claims in
state court under § 2254(b) prior to requesting federal collateral
relief. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982) (requiring dismissal of habeas action containing
both exhausted and unexhausted claims). Because Sterling has
failed to exhaust all of the postconviction claims he now seeks to
raise, he has asserted no cognizable right to federal habeas relief
under § 2254. Consequently, we deny his application for a CPC.
B
In addition to the merits of his habeas claims, however,
Sterling argues that the district court's judgment had the effect
of depriving him of his federal statutory right, under 21 U.S.C. §
848(q)(4)(B), to retain his federally funded counsel in state
postconviction proceedings.3 Sterling argues that § 848(q)
obligates the federal government, once he has filed a federal
habeas petition, to appoint and fund counsel and that this counsel
must represent him in all state and federal proceedings from this
point forward.4 Sterling accordingly asks this court to direct the
3
We note that although a CPC is required for appellate review
of the denial of habeas relief, no such requirement exists for
appellate review of the denial of appointment of counsel under §
848(q)(4)(B). Barnard v. Collins, 13 F.3d 871, 878 n.6 (5th Cir.
1994). The same rule should apply to the retention of such
counsel.
4
We note that in Murray v. Giarratano, 492 U.S. 1, 109 S.Ct.
2765, 106 L.Ed.2d 1 (1989), the Supreme Court held that prisoners
have no constitutional right to counsel in habeas proceedings.
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district court to reinstate his non-cognizable federal habeas
petition and to hold the federal proceeding in abeyance to allow
him to use federally funded counsel to exhaust his state remedies.
Because this appeal arose before the Supreme Court's decision
in McFarland v. Scott, ___ U.S. ___, ___, 114 S.Ct. 2568, 2570, 129
L.Ed.2d 666 (1994), implicit in petitioner's argument was the
assumption that the filing of a federal habeas petition was
required to invoke the jurisdiction of the district court for
purposes of appointing counsel under 21 U.S.C. § 848(q)(4)(B). In
McFarland, however, the Supreme Court clarified this
misunderstanding and held that § 848(q)(4)(B) established a right
to federally funded legal assistance in the preparation of the
federal habeas corpus application. McFarland, 114 S.Ct. at 2572.
Thus, the Court concluded that a "'post conviction proceeding'
within the meaning of § 848(q)(4)(B) is commenced by the filing of
a death row defendant's motion requesting the appointment of
counsel for his federal habeas corpus proceeding."5 Id. at 2572-
73.
In order to understand McFarland's application to this case,
we need to reiterate the procedural background of this case in the
district court. Upon Sterling's filing of his original federal
Accordingly, our task is confined to statutory interpretation.
5
The Court further held that once the defendant invokes his
right to appointment of counsel, a district court has jurisdiction
to enter a stay of execution where necessary to give effect to this
right. Id. at 2574.
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habeas petition, the district court then appointed his federally
paid counsel. Thus, even before McFarland, the district court
asserted jurisdiction to appoint this federally funded counsel to
represent Sterling. Sterling's federally paid counsel, however,
then filed an amended federal habeas petition, which contained
numerous unexhausted claims. As referred to earlier, 28 U.S.C. §
2254(b) provides that an application for a writ of habeas corpus
"shall not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the State." 28
U.S.C. § 2254(b). The district court must also dismiss a mixed
petition, such as Sterling's petition, containing both exhausted
and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510, 102
S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). Accordingly, the district
court was correct in dismissing Sterling's amended federal petition
for failing to exhaust his state remedies as required in § 2254,
and the district court did not err in refusing to hold in abeyance
a petition over which it simply and plainly had no jurisdiction.
See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-
55, 115 L.Ed.2d 640 (1991) ("This Court has long held that a state
prisoner's federal habeas petition should be dismissed if the
prisoner has not exhausted available state remedies as to any of
his federal claims."). Sterling cannot be allowed to use the
federal district court merely as a jurisdictional parking lot so
that he may somehow attach a right to federally paid counsel to a
non-cognizable pleading. Our task now, however, is to determine
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whether, under McFarland, Sterling's appointment of counsel
survives the dismissal of his federal habeas petition.
C
To make this determination, we first set out the provisions of
the statute that are the foci of Sterling's claim. In pertinent
part, 21 U.S.C. § 848(q)(4)(B) provides:
In any post conviction proceeding under section 2254 or
2255 of Title 28, seeking to vacate or set aside a death
sentence, any defendant who is or becomes financially
unable to obtain adequate representation ... shall be
entitled to the appointment of one or more attorneys and
the furnishing of such other services in accordance with
paragraph[] ... (8)....
21 U.S.C. § 848(q)(4)(B). Section 848(q)(4)(B) seems to require
that federally appointed and paid counsel can only be provided in
federal habeas proceedings brought pursuant to 28 U.S.C. § 2254 or
28 U.S.C. § 2255. However, Section 21 U.S.C. § 848(q)(8) provides:
[E]ach attorney so appointed shall represent the
defendant throughout every subsequent stage of available
judicial proceedings, including pretrial proceedings,
trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court
of the United States, and all available post-conviction
process, ... competency proceedings and proceedings for
executive or other clemency ....
§ 21 U.S.C. § 848(q)(8).6 Thus, once an attorney is appointed
pursuant to § 848(q)(4)(B), § 848(q)(8) provides that the
attorney's appointment continues "throughout every subsequent stage
of available judicial proceedings." In sum, the statute would seem
6
21 U.S.C. § 848(q)(10) authorizes the payment of fees to
attorneys appointed under § 848(q)(4)(B).
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to provide that counsel may be appointed to assist an indigent
defendant only in federal habeas proceedings, but once appointed
counsel's representation of the defendant seems to continue from
this point forward, until all available postconviction proceedings
have been exhausted. The question before us, therefore, is whether
this statute is properly interpreted to allow federally appointed
and paid counsel to exhaust remedies in state court.
Although, in our consideration of this question of statutory
interpretation, it is important to examine McFarland, McFarland
actually does not resolve the question for us. After McFarland was
convicted of capital murder and sentenced to death, the Texas
courts affirmed his conviction and sentence, and the United States
Supreme Court denied certiorari. McFarland, 114 S.Ct. at 2570.
McFarland then requested state appointed counsel for his state
habeas corpus proceeding, but the trial court denied his request,
and the Texas appellate court affirmed this ruling because he had
not filed an application for writ of habeas corpus. Id. Having
failed to obtain counsel in state court, McFarland filed a pro se
motion with the federal district court for appointment of counsel
under § 848 (q)(4)(B) and for a stay of his execution. Id. The
district court denied McFarland's motion because no "post
conviction proceeding" had been initiated under § 2254 or § 2255.
Id. at 2471. On the night before his scheduled execution, the
Fifth Circuit denied McFarland's motion for appointment of counsel
and for stay of execution. Id. We held that federal courts could
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only stay a state proceeding when a federal habeas corpus
proceeding was pending and such proceeding was not pending when the
defendant filed only a motion for appointment of counsel and stay
of execution. Id. The Supreme Court granted the stay and later
granted certiorari. Id.
In its subsequent opinion, the Court observed that although §
848(q)(4)(B) grants "indigent capital defendants a mandatory right
to qualified legal counsel and related services '[i]n any [federal]
post conviction proceeding,'" the statute does not resolve how a
"post conviction proceeding" under § 2254 or § 2255 is commenced.
Id. at 2571-72. Seeking an answer to this question, the Court
examined § 849(q)(9), which allows the capital defendant's attorney
to obtain reasonable investigative services upon approval of the
court. McFarland, 114 S.Ct. at 2472. The Court reasoned that
because these services may be critical in the preapplication phase
of a habeas corpus proceeding, § 848(q)(4)(B) anticipates that
counsel will have been appointed before the need for these services
arises, and thus before the filing of the federal habeas petition.
Id. In sum, the Court held that a "post conviction proceeding"
within the meaning of § 848(q)(4)(B) "commences by the filing of a
death row defendant's motion requesting the appointment of counsel
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for this federal habeas corpus proceeding."7 Id. at 2472-73
(emphasis added).
In any event, McFarland is clear only for the simple
proposition that upon the filing of a motion for appointment of
counsel, a "post conviction proceeding" within the meaning of §
848(q)(4)(B) is initiated, entitling the capital defendant to
federally funded counsel, notwithstanding that the defendant has
not filed a formal federal habeas petition. McFarland focused very
narrowly only on § 848(q)(4)(B). It did not address at all §
848(q)(8), which provides for the continued representation by the
appointed attorney throughout "every subsequent stage of available
judicial proceedings." Thus, McFarland is not authority supporting
Sterling's argument that counsel's appointment must continue under
§ 848(q)(8) when the federal habeas petition has been dismissed for
lack of state exhaustion. In sum, McFarland neither supports
clearly the argument for or the argument against allowing counsel
to continue his paid representation throughout exhaustion of the
defendant's state remedies.8
7
The Court additionally held that "once a capital defendant
invokes his right to appointed counsel, a federal court also has
jurisdiction...to enter a stay of execution." McFarland, 114 S.Ct.
at 2573.
8
It would appear, however, to have been an empty gesture to
appoint counsel to McFarland, who had not exhausted state remedies,
unless counsel was intended to represent the death row petitioner
in state court proceedings. His failure to exhaust meant that his
federal proceeding was, practically speaking, at its end. The
Supreme Court, however, failed to address the consequences of this
fact.
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D
Now, having dismissed McFarland as controlling of this case,
we are still left to determine whether § 848(q)(8) is properly
interpreted to allow Sterling's federally appointed and paid
counsel to continue his representation for the purpose of
exhausting state remedies in state court. We once again turn to
the statute.
Section 848(q), providing for appointment of counsel in death
penalty cases, is found in the Anti-Drug Abuse Act of 1988. 21
U.S.C. § 848(q). No House or Senate reports or other expression of
legislative intent in drafting this provision were submitted with
this legislation. See Act of October 21, 1988, Pub. L. No. 100-
690, 1988 U.S.C.C.A.N. (102 Stat.) 4181. Generally § 848 deals
with drug abuse prevention and control. Its essence is to impose
punishment of either life imprisonment or death for engaging in a
continuing criminal enterprise in violation of federal drug laws.
After establishing the elements of the law and the penalties for
violating the law, the statute proceeds to set out the procedures
for imposing the death penalty in federal criminal cases, and
includes sections relating to hearings, proof, findings, imposition
of sentence, and mitigating and aggravating factors.
Section 848(q) is entitled "Appeal in capital cases; counsel
for financially unable defendants." This section seems primarily
directed to appeals of death penalty sentences in federal drug-
related cases; indeed § 848(q)(1)-(4)(A) are explicitly directed
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only to cases in which a death sentence is imposed under federal
law. Furthermore, although compatible to postconviction cases,
certain language of § 848(q)(5)-(10) is more suggestive of federal
criminal cases than habeas cases.
Section 848(q)(4)(B), however, does relate exclusively to
postconviction proceedings under 28 U.S.C. § 2254 and 28 U.S.C. §
2255. Furthermore, it expressly refers to subsequent § 848(q)(5)-
(9) as applicable to such postconviction proceedings. Section
848(q)(4)(B) provides for appointment of counsel only in
proceedings under federal law. Because the sections preceding and
following § 848(q)(4)(B) are couched in language relating more
directly to federal criminal trials and appeals, than to habeas
cases seeking relief from state court sentences, § 848(q)(4)(B)
seems awkwardly misplaced in this particular statute--indeed almost
like a statutory afterthought as far as its appearance in § 848(q)
is concerned.
Finally, we come to the section that petitioner relies most
heavily upon--§ 848(q)(8)--that provides that unless appointed
counsel is replaced, each attorney appointed under this statute
shall represent the defendant throughout every subsequent
stage of available judicial proceedings, including
pretrial proceedings, trial, sentencing, motions for new
trial, appeals, applications for writ of certiorari to
the Supreme Court of the United States, and all available
post-conviction process, ... competency proceedings and
proceedings for executive or other clemency ....
21 U.S.C. § 848(q)(8). We must acknowledge that a colorable
argument can be made that this subsection is broad enough to admit
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an interpretation that once an attorney is appointed for any
purpose, the right to counsel so appointed does not terminate until
either the petitioner is executed or the death sentence is not only
set aside to be retried, but is in fact resolved by revocation. On
the other hand, considered in context of § 848(q) as a whole, we
find more persuasive the argument that § 848(q)(8) must be read in
the light of § 848(q)(4)(B), which provides that the right to
counsel applies only in connection with federal proceedings. The
fact that a cognizable federal habeas proceeding can be brought at
all assumes that the state proceedings have been concluded. In
this light, the words of § 848(q)(8), "shall represent the
defendant throughout every subsequent stage of available judicial
proceedings," is more reasonably interpreted as subsequent to the
completion of the state court proceedings.
There are other reasons that prompt us to reject a broad
reading of § 848(q)(8). Among those is that, given that the
statute for appointment of counsel in postconviction proceedings
appears as somewhat of a statutory step-child in § 848(q), we are
reluctant to say that § 848(q)(8) should be read to express
congressional intent for so sweeping an idea that the federal
government will pay attorneys for a state defendant to pursue state
remedies in state courts. Our reluctance would seem especially
justified since the costs of federally funded attorneys would
increase the cost of implementing the statute enormously inasmuch
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as it is in the state court proceedings that most of the litigation
is conducted.
Congress is usually more express in its intent when it decides
to fund a project. Indeed, the Texas Resource Center, which
assisted Sterling in obtaining his federally appointed counsel,
operates "primarily through a $3 million annual federal grant and
has 16 lawyers on staff," McFarland v. Collins, 8 F.3d 258, 260
n.4 (5th Cir. 1993) (Jones, J., dissenting). Seemingly, this
generous federal funding and adequate staffing would give the
Resource Center the financial and functional capabilities either to
represent or to assist in representing Sterling in his state
postconviction proceedings. Additionally, Article 1.051 of Texas
Code of Criminal Procedure provides that an eligible indigent
defendant is entitled to have the trial court appoint counsel in "a
habeas corpus proceeding if the court concludes that the interests
of justice require representation." TEX. CODE CRIM. P. art. 1.051
(West Supp. 1995).
Additionally, we should at least observe that principles of
federalism are involved. It would seem indelicate on our part,
absent an express intent on the part of Congress, to permit
intrusion into the state judicial process by having lawyers who are
practicing before state courts, representing state court defendants
and petitioners pursuant to state court rules, to have their
qualifications set by federal statute (21 U.S.C. § 848(q)(5),(6))
and to be answerable, at least in part, to federal judges for their
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conduct. Counsel who are appointed and qualified and whose pay is
approved by federal judges are ultimately controlled by and
responsible to federal courts. It is not too difficult to see that
the hand of the federal court may well find its way further into
state court proceedings and the independence of state courts
unnecessarily interfered with and compromised thereby.
Finally, although no circuit court has decided this precise
issue since the Supreme Court's decision in McFarland, our holding
is in line with other circuit authority decided before McFarland.
McFarland does not change the backdrop against which these cases
were decided. In In re Lindsey, 875 F.2d 1502 (11th Cir. 1989),
the Eleventh Circuit held that assuming the defendant had a right
to federally appointed counsel under § 848(q)(4)(B),9 § 848(q)(8)
nevertheless did not encompass "any proceedings convened under the
authority of a State." In re Lindsey, 875 F.2d at 1506; see Hill
v. Lockhart, 992 F.2d 801, 803 (8th Cir. 1993)(agreeing with
analysis of In re Lindsey). We agree with the court's reasoning
that allowing the defendant to obtain federally appointed counsel
for use in state postconviction habeas proceedings would "have the
9
The court first held that a death-row inmate is not entitled
to federally appointed counsel until he files a formal habeas
petition. In re Lindsey, 875 F.2d at 1506. Although we recognize
that this holding is not in line with McFarland, this does not
tarnish the second portion of the court's opinion that assumes the
defendant is entitled to federally appointed counsel, but concludes
that this federally paid counsel was not intended to exhaust state
remedies in state court. Id.
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practical effect of supplanting state-court systems for the
appointment of counsel in collateral review cases." Id.
In short, we hold that Sterling has no right to appointed and
paid counsel under § 848(q)(4)(B) for the purpose of exhausting his
state postconviction claims. Once the federal court clearly has
jurisdiction and all exhaustion has been completed, Sterling can
refile his federal petition and then properly invoke his right to
federally paid counsel for "every subsequent stage of available
judicial proceedings"--a term we find unnecessary to define further
in these proceedings.
IV
In conclusion, we hold that the district court properly
appointed counsel for purposes of the federal proceeding, including
this appeal, and, consequently, REMAND this case to the district
court to determine his compensation in accordance with § 848(q).
Because we have noted that a CPC is not required for appeal with
respect to the issues concerning § 848(q), we AFFIRM the district
court's decision not to hold Sterling's federal petition in
abeyance so that he could use federally funded counsel to pursue
his unexhausted state remedies. We further hold that Sterling
makes no substantial showing that he has been denied a federal
right and thus deny a CPC, and DISMISS that part of the appeal.
Finally, we hold that § 848(q) does not permit the appointment of
counsel to continue beyond the termination of this federal
proceeding.
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AFFIRMED in part; DISMISSED in part;
and REMANDED.
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