UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10204
Summary Calendar
ANTHONY GILL,
Petitioner-Appellant,
VERSUS
WAYNE SCOTT,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(4:94 CV 394 Y)
( August 23, 1995 )
Before REYNALDO G. GARZA, JONES AND BARKSDALE, Circuit Judges.
PER CURIAM:*
BACKGROUND
Anthony Gill was indicted by the State of Texas on July 30,
1992 for committing robbery while on parole. The Texas Board of
Pardons and Paroles revoked his parole after conducting a hearing
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
and determining that the robbery violated the conditions of his
release. Since the indictment, Gill has sought habeas relief four
times, twice in federal court and twice in state court, to avoid
conviction for this robbery.
Gill filed a pre-conviction application for a state writ of
habeas corpus on January 11, 1993. There is no record of a ruling
on this application. In June 1993, Gill filed a pre-conviction
petition for habeas relief in federal court under 28 U.S.C. § 2241,
seeking to enjoin the state prosecution for robbery. He argued
that because the state had already proven robbery in the parole
revocation hearing, the doctrine of collateral estoppel and the
Fifth Amendment's double jeopardy clause prevented a subsequent
prosecution for the robbery itself. On July 12, 1993, Gill pled
guilty to the robbery.
Gill filed a motion in the federal habeas proceeding in
November 1993 to void the guilty-plea conviction. The district
court dismissed Gill's federal habeas petition, adopting the
magistrate judge's proposed findings that the guilty plea mooted
Gill's attempt to enjoin prosecution and that the double jeopardy
clause did not apply to parole revocation proceedings. This Court
affirmed, noting that the doctrine of collateral estoppel has no
constitutional dimension independent of the double jeopardy clause.
Gill v. Texas, No. 94-10116, slip op. at 3 (5th Cir. June 7, 1994),
cert. denied, 130 L.Ed.2d 354 (1994).
Gill made a post-conviction petition for habeas relief in
state court on October 21, 1993, alleging the following
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infirmities: 1) ineffective assistance of counsel at trial for
failure to research and promote Gill's double jeopardy claim; 2)
violation of due process rights for the state court's failure to
address the pre-conviction habeas petition; 3) violation of due
process and equal protection rights because the state court had no
jurisdiction to find guilt after Gill filed his first petition for
federal habeas relief; and 4) violation of due process and equal
protection rights because Gill's jeopardy amendment claims were not
addressed before criminal proceedings commenced. The state
district court dismissed the habeas petition on November 11, 1993.
The Texas Court of Criminal Appeals denied Gill's appeal on January
12, 1994, without written order.
Having exhausted his state remedies, Gill filed a post-
conviction petition for federal habeas relief on June 9, 1994,
pursuant to 28 U.S.C. § 2254. The four claims in this petition are
identical to those raised in the October 21, 1993 state petition
and include the double jeopardy claim Gill raised in his first
federal petition. The district court granted the Respondent's
motion to dismiss the petition as an abuse of the writ on February
17, 1995. This timely appeal followed.
ANALYSIS
Gill claims that his second federal habeas petition was not an
abuse of the writ and was dismissed erroneously. We need not
inquire whether this latest petition was an abuse of the writ.
Dismissal was appropriate because the four claims in Gill's
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petition for habeas relief lack merit. We will consider those
claims in turn.
Gill states that he had ineffective assistance of counsel
because his attorney failed to file pretrial motions contesting the
state's right to prosecute him based on double jeopardy and because
his attorney was not aware of and did not research the law that
Gill claimed supported his double jeopardy claim. Gill also states
that as a result of this ineffective assistance, he was deceived
into pleading guilty. These arguments are vacuous.
In addition to showing that his attorney's performance fell
below an objective standard of reasonable competence, Gill needed
to show that the poor performance prejudiced his defense. Armstead
v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (citing Lockhart v.
Fretwell, ---U.S.---, 113 S. Ct. 838, 842, 122 L.Ed.2d 180, 189
(1993)), cert. denied, ---U.S.---, 115 S.Ct. 1709, 131 L.Ed.2d 570
(1995). When either element of the ineffectiveness claim is not
proven, the petitioner is not entitled to relief. Strickland v.
Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, (1984). Gill
has not shown prejudice.
Gill's ineffectiveness claims depend entirely on the validity
of his double jeopardy claim. Because this Court has already ruled
that the double jeopardy clause does not apply to parole revocation
proceedings, the failure of counsel to advance the jeopardy claim
could hardly be deemed unreasonable or prejudicial to Gill. See
Gill v. Texas, supra. Since his argument that he was deceived into
pleading guilty was based on the ineffectiveness claim, that
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argument is invalid as well.
Equally meritless is Gill's contention that the state court
violated his due process rights by failing to address his pre-
conviction habeas petition. Infirmities in state habeas corpus
proceedings provide no basis for federal habeas relief. Duff-Smith
v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, ---
U.S.---, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993).
Gill's last two claims assert that the state lost jurisdiction
after he filed for federal relief and that the state violated his
right to due process and equal protection by continuing with the
prosecution before the federal court finished review of his
jeopardy claims. However, mere filing for federal habeas relief
does not affect the power of the state to continue with its
proceedings nor the validity of those subsequent proceedings.
While the federal court may grant a stay of the state proceedings
under 28 U.S.C. § 2251 (and here the court did not), "if no stay is
granted, any such [state] proceeding shall be as valid as if no
habeas corpus proceedings or appeal were pending."
The district court dismissed Gill's petition for abuse of the
writ. We uphold the dismissal as proper but on the grounds that
Gill's underlying habeas petition was without merit. The Court
affirms on these other grounds as it may do. Thyssen Steel Co. v.
M/V Kavo Yerakas, 50 F.3d 1349, 1354 (5th Cir. 1995).
AFFIRMED.
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