IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10350
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EDDIE HOSEA HUNT,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court for
the Northern District of Texas
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April 24, 1996
Before REAVLEY, GARWOOD and JOLLY, Circuit Judges.
PER CURIAM:*
Hunt committed three separate armed robberies in a span of
approximately twenty days. He was indicted for each robbery, and
in a consolidated trial was convicted on each indictment in a
Texas state court. Hunt was sentenced to 95 years in prison, 50
years in prison and a $10,000 fine, and life imprisonment. Under
state law, the sentences were to be served concurrently. His
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
conviction was affirmed by a Texas court of appeals.1 Hunt did
not petition the Texas Court of Criminal Appeals for
discretionary review. In Hunt’s post-conviction pleadings, the
Texas Court of Criminal Appeals denied his three applications for
habeas relief.2 Hunt then filed the instant federal habeas
petition. 28 U.S.C. § 2254.
Based upon a magistrate’s recommendation, the district court
denied Hunt’s petition for habeas relief and dismissed the
petition. The district court also denied Hunt a certificate of
probable cause to appeal. Hunt alleged that he received
ineffective assistance of counsel because his appellate counsel’s
brief failed to raise any claims specific to one of the three
convictions (cause number F91-39619-TP for which he was sentenced
to 50 years imprisonment and ordered to pay a $10,000 fine). We
granted a certificate of probable cause and ordered the state to
address “whether Hunt must show prejudice to obtain relief on his
claim that his appellate counsel failed to argue any issue
relating to No. F91-39619-TP.” Finding that he must, we affirm.
1
Hunt v. State, Nos. 05-91-00767(68 and 69)-CR (Tex.App.-
Dallas, August, 14, 1992)(unpublished).
2
Ex parte Hunt, No. 24,065-01 (Tex. Crim. App. November 18,
1992) (application denied without written order on findings of
trial court without a hearing); Ex parte Hunt, No. 24,065-02
(Tex. Crim. App. March 3, 1993) (application denied without
written order); Ex parte Hunt, No. 24,065-03 (Tex. Crim. App.
November 17, 1993) (application denied without written order on
findings of trial court without a hearing).
2
Appellate counsel filed a brief in Hunt’s consolidated
appeal and failed to raise any issues with respect to one of
Hunt’s three convictions. Essentially, on direct appeal, if Hunt
had been successful on all complaints, his conviction in cause
number F91-39619-TP would not have been affected. Was Hunt
constructively without counsel on appeal, or was counsel
ineffective?
Where a defendant is without counsel, it is inappropriate to
apply either the prejudice requirement of Strickland or the
harmless-error analysis of Chapman.3 Prejudice is presumed when
a defendant experiences a complete denial of counsel, whether
actual or constructive.4 However, leaving a defendant
“completely without representation during the appellate court’s
actual decisional process . . . is quite different from a case in
which it is claimed that counsel’s performance was ineffective.”5
Appellate counsel raised several grounds for appeal, all of which
were rejected by the court of appeals. Hunt does not claim that
he was constructively without appellate counsel, only that
appellate counsel failed to raise complaints as to one of the
3
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967).
4
United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996).
5
Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 354, 102
L.Ed.2d 300 (1988).
3
convictions. Hunt was not “completely without representation
during the appellate court’s actual decisional process.”6 We
hold that Hunt was represented by counsel.7 Counsel is not
ineffective because he failed to raise issues requested by a
defendant or because he failed to raise every possible point on
appeal.8 Therefore, Hunt was required to meet the prejudice
prong of Strickland.9 This he failed to do.
6
Penson, 488 U.S. at 88, 109 S.Ct. at 354.
7
Compare United States v. Riascos, 76 F.3d 93, 94 (5th Cir.
1996) (defendant effectively had no counsel, where attorney filed
no appeal and made no objections to defendant’s sentencing after
defendant plead guilty); Childs v. Collins, 995 F.2d 67, 68 (5th
Cir.), cert. denied, 114 S.Ct. 613 (1993) (counsel failed to give
notice of appeal and withdrew without informing defendant or
trial court); Bonneau v. United States, 961 F.2d 17 (1st Cir.
1992) (defendant who lost his right to appeal because of
dereliction of counsel was presumptively prejudiced); Lofton v.
Whitley, 905 F.2d 885 (5th Cir. 1990) (counsel who presented no
claims of error to appellate court was afforded no
representation); Abdurrahman v. Henderson, 897 F.2d 71 (2d Cir.
1990) (where defendant receives more than nominal representation
during state appeal, Strickland applies); Cf. Lombard v. Lynaugh,
868 F.2d 1475, 1480 (5th Cir. 1989).
8
Sharp v. Puckett, 930 F.2d 450, 452 (5th Cir. 1991).
9
“To prevail on a claim of ineffective assistance of
counsel, Hunt must show that (1) counsel’s performance was so
deficient as to fall below an objective standard of
reasonableness and (2) there is a reasonable probability that,
but for the unprofessional errors, the result of the proceeding
would have been different.” Strickland, supra; Ward v. Whitley,
21 F.3d 1355, 1361 (5th Cir. 1994), cert. denied, 115 S.Ct. 1257
(1995).
4
Hunt raises numerous other “grounds of error” for our
review. After careful consideration of these issues, we AFFIRM
the district court’s order denying Hunt relief.
5