Matchett v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 9, 2004

Charles R. Fulbruge III
Clerk
No. 03-20197

FARLEY CHARLES MATCHETT,

Petitioner-Appellant,
versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
--------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

BY THE COURT:

Petitioner-Appellant Farley Charles Matchett, a Texas death-

row prisoner (# 999060), seeks a certificate of appealability

(“COA”) to appeal the district court’s dismissal of his 28 U.S.C.

§ 2254 habeas corpus application on the ground that his claims of

ineffective assistance of counsel are procedurally defaulted.

FACTS AND PROCEEDINGS

In 1993, Matchett pleaded guilty to the capital murder of

Uries Anderson by stabbing him and hitting him with a hammer during

a robbery. See Matchett v. State, 941 S.W.2d 922, 926 (Tex. Crim.

App. 1996). Following completion of the punishment proceeding
against Matchett, the jury answered three special issues in the

affirmative, and the trial court assessed a sentence of death.

Represented on direct appeal by the same attorneys who

represented him at trial, Matchett raised 37 points of error.

Matchett, 941 S.W.2d at 926-41. In 1996, the Texas Court of

Criminal Appeals affirmed the conviction and death sentence,

rejecting most of the claims on the merits. See id.

In 1997, represented by newly appointed counsel, Matchett

filed a state post-conviction application summarily listing 72

individual grounds for relief. He briefed but a few of these

claims in a memorandum filed in support of the application. The

state trial court adopted the respondent’s proposed findings of

fact and conclusions of law and concluded that most of the grounds

for relief “were unsupported by argument and/or authorities.” In

2001, the Court of Criminal Appeals denied Matchett’s post-

conviction application, ruling that “[t]he findings and conclusions

by the trial court are supported by the record.”

Later that year, the federal district court appointed a new

attorney for Matchett so that he could file a 28 U.S.C. § 2254

habeas application. This attorney first filed a successive post-

conviction application in state court, however, raising several

claims of ineffective assistance of counsel that had not been

raised previously, viz., failing to investigate and present a

complete and accurate mitigation defense; failing to challenge the

admissibility of the rebuttal testimony of State psychological

2
expert, Dr. Walter Quijano, on the ground that the testimony was

not reliable; and advising Matchett to plead guilty, with the

effect of forfeiting his right to challenge the legality of his

arrest and the admissibility of his confession on direct appeal.

In May of 2002, the Texas Court of Criminal Appeals denied this

second post-conviction application as an abuse of the writ.

Matchett then filed the instant 28 U.S.C. § 2254 application,

raising the same claims of ineffective assistance of counsel that

had been raised in his second state post-conviction application.

He also contended that the trial court had issued an

unconstitutional jury instruction on intoxication when it “severely

limited” the jury’s ability to consider and give effect to the

cocaine-intoxication evidence. The respondent moved for summary

judgment, arguing that Matchett’s ineffective-assistance claims

were procedurally defaulted, based on the Court of Criminal

Appeals’ abuse-of-the-writ ruling, and that the intoxication-charge

claim, which had been raised on direct appeal, was procedurally

defaulted as well. Matchett replied that he had “cause” for any

procedural default because the performance of his attorney during

his first state post-conviction proceeding was ineffective, in that

counsel failed to raise the ineffective-assistance claims during

that proceeding.

The district court issued a memorandum and order granting the

respondent’s summary-judgment motion and dismissing Matchett’s 28

U.S.C. § 2254 application. The court concluded that all of

3
Matchett’s ineffective-assistance claims were procedurally

defaulted and that Matchett’s assertion that counsel performed

ineffectively during his first state post-conviction proceeding did

not qualify as “cause” to excuse such default. The court also

concluded that the intoxication-charge claim was procedurally

defaulted. Matchett now seeks a COA from us.

II.

ANALYSIS

A. COA standard

A COA may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). “The COA determination under § 2253(c) requires an

overview of the claims in the habeas petition and a general

assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). This threshold inquiry does not require a showing that

the appeal will succeed. Id. at 337. When a district court has

denied relief on nonconstitutional grounds, as with its

procedural-default ruling here, the petitioner must show “that

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). In death-penalty cases, “‘any doubts as

to whether a COA should [be] issue[d] must be resolved in [the

4
petitioner’s] favor.’” Bigby v. Cockrell, 340 F.3d 259, 265-66

(5th Cir. 2003) (citation omitted).

B. Abandoned claims

In the brief filed in support of his COA application, Matchett

does not pursue either his claim that counsel performed

ineffectively by failing to object to Dr. Quijano’s testimony or

his claim that the trial court gave an improper instruction with

respect to cocaine intoxication. We deem these claims abandoned.

Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see FED.

R. APP. P. 28(a)(9). Neither does Matchett challenge the district

court’s ruling that these two claims were procedurally defaulted.

This is the equivalent of his not having appealed the district

court’s judgment on these claims. See Brinkmann v. Dallas County

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

C. Remaining Claims

Matchett does continue to assert his substantive claims that

trial counsel performed ineffectively by advising him to plead

guilty and by failing to investigate and present a complete

mitigation defense at the punishment phase. He acknowledges that

these claims were not presented to the state courts prior to their

inclusion in his second state post-conviction application; that the

Texas Court of Criminal Appeals found that application to be an

abuse of the writ; and that the federal district court therefore

found the claims to be procedurally defaulted. Matchett does not

explicitly dispute the district court’s conclusion that the

5
allegedly ineffective assistance of his appointed attorney during

his first state post-conviction proceeding was not “cause” to

excuse such procedural default. Rather, Matchett emphasizes that

Texas provides a statutory right to post-conviction counsel for

death-row inmates.

The procedural-default doctrine precludes federal habeas

review when the last reasoned state-court opinion addressing a

claim explicitly rejects it on a state procedural ground. Ylst v.

Nunnemaker, 501 U.S. 797, 801, 803 (1991). When the state court

relies on an independent and adequate state procedural rule,

federal habeas review is barred unless the petitioner demonstrates

either cause and prejudice or that a failure to address the claim

will result in a fundamental miscarriage of justice. Coleman v.

Thompson, 501 U.S. 722, 750 (1991). We have held that Texas’s

abuse-of-the-writ rule is ordinarily an “adequate and independent”

procedural ground on which to base a procedural-default ruling.

Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003),

cert. denied, 124 S. Ct. 1170 (2004); Barrientes v. Johnson, 221

F.3d 741, 758-61 (5th Cir. 2000).

“Cause is defined as ‘something external to the petitioner,

something that cannot fairly be attributed to him’ that impedes his

efforts to comply with the [state] procedural rule.” Moore v.

Roberts, 83 F.3d 699, 704 (5th Cir. 1996) (citing Coleman, 501 U.S.

at 753). “Cause” factors may include interference by officials

that makes compliance with the procedural rule impracticable, a

6
showing that the factual or legal basis for the claim was not

reasonably available to counsel, and ineffective assistance of

counsel--in the constitutional sense--on direct appeal. Murray v.

Carrier, 477 U.S. 478, 488 (1986). If a petitioner fails to

demonstrate cause, the court need not consider whether there is

actual prejudice. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th

Cir. 1997).

We have repeatedly held that ineffective assistance of state

habeas or post-conviction counsel cannot serve as cause for a

procedural default. See, e.g., Henderson, 333 F.3d at 606;

Martinez v. Johnson, 255 F.3d 229, 239-41 (5th Cir. 2001) (and

citations therein); Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir.

2001). Matchett does not question this. A state prisoner has no

constitutional right to an attorney in state post-conviction

proceedings and thus cannot claim ineffective assistance of counsel

in such proceedings. Martinez, 255 F.3d at 239 (citing Coleman,

501 U.S. at 752); see Coleman, 501 U.S. at 757 (“Because

[petitioner] had no right to counsel to pursue his appeal in state

habeas, any attorney error that led to the default of

[petitioner’s] claims in state court cannot constitute cause to

excuse the default in federal habeas.”). Contrary to Matchett’s

suggestion, a state prisoner may not cite the ineffective

assistance of state habeas counsel as “cause” for a procedural

default even for “cases involving constitutional claims that can

7
only be raised for the first time in state post-conviction

proceedings.” Martinez, 255 F.3d at 240.

Finally, on at least two occasions, we have rejected

contentions like Matchett’s that Texas’s statutory provision of

post-conviction counsel to death-row offenders requires that the

post-conviction process must comply with the Due Process Clause.

Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir.), cert. denied, 537

U.S. 1040 (2002); In re Goff, 250 F.3d 273, 275-76 (5th Cir. 2001)

(addressing motion by death-row offender to file successive 28

U.S.C. § 2254 habeas application).1

III

CONCLUSION

Matchett has failed to demonstrate that jurists of reason

would find it debatable that the district court erred in ruling

that his substantive claims were procedurally defaulted.

See Slack, 529 U.S. at 484. Accordingly, Matchett’s application

for a COA is

1
Matchett cites Welch v. Beto, 355 F.2d 1016, 1020 (5th Cir.
1966), for the proposition that the invocation of “‘Texas statutes
granting post-conviction hearings’” gives a federal habeas
petitioner “‘the right to be tried according to the substantive and
procedural due process requirements of the Fourteenth Amendment.’”
In Goff, we stated that Welch had been overruled by the Supreme
Court insofar as Welch implied that Texas post-conviction
applicants had a due-process right to effective assistance of
counsel, re-emphasizing that “ineffective assistance of counsel in
a post-conviction proceeding cannot serve as cause to excuse
procedural default in a federal habeas proceeding.” Goff, 250 F.3d
at 276.

8
DENIED.