* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EMILE GOUDEAU, JR.,

Petitioner - Appellant, No. 97-5247

v. (N.D. Oklahoma) HOWARD RAY,

Respondent - Appellee. (D.C. No. 97-CV-943-TCK)

ORDER AND JUDGMENT *

Before ANDERSON , MCKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Emile Goudeau, Jr., an Oklahoma state prisoner appe aring pro se, seeks to appeal the district court’s dismissal of his 28 U.S .C. § 2254 petition for writ of1 The charges were made in two separate cases. The 1 995 case involved the

drug violations, and the 1994 case involved the gunand DUI violations. -2- habeas corpus. Because Goudeau filed his § 2254 mo tion after the effective date of the Antiterrorism and Effective Death Penalty Ac t (AEDPA), he must obtain a certificate of appealability before he can appeal the district court’s denial. See 28 U.S.C. § 2253(c)(1)(A). We deny the certificate of appealability and dismiss the appeal.

BACKGROUND During 1994 and 1995, Goudeau was charged with Poss ession of Marijuana with Intent to Distribute, Failure to Obtain a Drug Stamp, Possession of a Firearm After Former Conviction of a Felony, and DUI. 1 According to his pleadings, initially, he was represented by privately retained counsel, but “for reasons of his poverty [he] was forced to request representation f rom the Public Defender’s office.” Pursuant to Goudeau’s request, the court appointed a public defender to represent him on all charges. R. Vol. I, Tab 1, Attach. 1. Goudeau soon became dissatisfied with his public defender and moved to dismiss her and have new counsel appointed, but the Oklahoma trial court denied his motion. Id. On several occasions prior to trial, Goudeau’s coun sel recommended that he accept a plea bargain; on each occasion he refus ed. Finally, on the day of trial,2 We infer that Goudeau dismissed his public defender

. 3 This is the first page of the “Complete Case History” attached to Goudeau’s petition. For ease of reference, we have consecutively numbered the pages of Goudeau’s petition and attached pages.

4 Presumably, Goudeau intended to make the same assertions on appeal that he had made in his motion. However, the record does not contain copies of th e Notice of Appeal or of the Petition in Error. -3- he pleaded guilty, following which he was convicted and sentenced to three 20- year terms and one 7-year term, all to run concurre ntly. After his conviction, Goudeau filed a timely pro se motion to withdraw hi s guilty plea, and he “hired private counsel, Jim Goodwin, to represent him on the motion.” 2 R. Vol. I, Tab 1
at 15. 3 According to his brief in support of the motion, Goudeau claimed to have entered his guilty plea under coercion, duress, and with ineffective assistance of counsel. Id. , Tab 1, Attach. 1. The court denied Goudeau’s mot ion, at which time private counsel “abandoned” Goudeau. Id. , Tab 1 at 15. Thereafter, Goudeau filed a timely Notice of Appeal with the Oklahoma Court of Criminal Appeals. 4 During this time, Goudeau enlisted the assistance of a fellow inmate, Robert Wirtz, Jr., who, although n ot an attorney, considered himself a “jail law clerk.” According to Goudeau’s habeas petition, Wirtz wrote to the Clerk of the Oklahoma Court of Criminal Appe als, and he received forms and written instructions regarding how and when the full petition in error should be filed. Id. , Tab 1 at 15. Relying on his interpretation of the instructions, i.e. ,5 Both Wirtz and Goudeau take this instruction out of context. As more fully set forth, the instructions refer to an enclo sed form, provide information about fees and copies, and then instruct the appell ant as follows: 5. Mail it [the form] in time for us to receive iton or before thirty days from the date the judgment was filed, or 6. Mail it certified, return receipt requested wit h the post office purple cancellation stamp on the front of the packa ge. Make sure the post office stamps it in front of you. If you mail it this way, it will be considered filed when you mailed it, not filed w hen we get it. R. Vol. I, Tab 1, Attach. 2 (emphasis added). -4- that pleadings would be considered filed the date o f the postmark, not the date received, 5 Wirtz mailed Goudeau’s pro se petition in error onJanuary 3, 1996, one day before the expiration of the ninety day fil ing period for criminal appeals. A few days later, Wirtz telephoned the Oklahoma app ellate court to make certain that the petition had been filed. At that time, he was told that the petition had been filed on January 8, 1996, and that it would be considered untimely. He was further informed that the postmark rule applies onl y in civil cases, while in criminal cases, filings are deemed filed when received, not when sent. Id. Wirtz then filed a combined motion and affidavit wi th the Oklahoma Court of Criminal Appeals, in which he set forth the clai m of misleading instructions and urged acceptance of the petition as timely when mailed. The Oklahoma Court of Criminal Appeals refused to consider the motion, since Goudeau, who was proceeding pro se, did not sign it, and Wirtz, who was not a licensed attorney,-5-

was not authorized to sign pleadings. The court th en dismissed Goudeau’s appeal as untimely. Goudeau, still assisted by Wirtz, tri ed to pursue his appeal further in the Oklahoma state court system, but found it dismissed on procedural grounds at every turn. The federal district court dismissed Goudeau’s § 22 54 habeas petition for similar reasons, holding that federal courts may no t consider habeas claims which the state’s highest court refused to hear because o f an adequate and independent state procedural defect. Goudeau now seeks to appe al that decision, and in addition to his opening brief, he has filed a motio n to supplement his argument with more specific authority related to ineffective ness of his retained counsel who “abandoned” him.

DISCUSSION Habeas petitioners, such as Goudeau, are entitled t o a certificate of appealability only if they can make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The district court correctly stated that the doctri ne of procedural default prohibits a federal court, on habeas review, from c onsidering claims which the state’s highest court declined to reach because of an adequate and independent state procedural defect, unless the habeas petition er can meet the “cause and-6-

prejudice” standard set forth by the Supreme Court. See Coleman v. Thompson , 501 U.S. 722, 724 (1991); Murray v. Carrier , 477 U.S. 478, 488 (1986). Under this standard, the petitioner must “demonstrate cau se for the default and [that] actual prejudice” resulted therefrom. Coleman , 501 U.S. at 724. Goudeau can show cause if he can demonstrate that “ some objective factor external to the defense impeded . . . efforts to co mply with the state procedural rules.” Murray , 477 U.S. at 488. Examples of such external facto rs include the discovery of new evidence, a change in the law, and interference by state officials. Id. Ineffectiveness of counsel can also satisfy the c ause and prejudice requirement. See United States v. Cook , 45 F.3d 388, 392 (10th Cir.1995). In this case, Goudeau makes three arguments. The f irst two relate to cause: 1) that the misleading instructions from the Oklaho ma state court clerk constitute “interference by state officials;” and 2) his “aban donment” by his retained counsel constitutes ineffectiveness. His third argument re lates to the alleged denial of his constitutional rights—that the Oklahoma Court of Cr iminal Appeals violated his constitutional rights by failing to apply the Houston v. Lack mailbox rule to his
case. See Houston v. Lack , 487 U.S. 266 (1988). None of his arguments has merit. First, with respect to the clerk’s instructions, th e record clearly demonstrates that Goudeau did not follow or rely onthem. That is, he ignored the6 The Oklahoma court found that Goudeau had been full y advised of his

right to appeal. R. Vol. I, Tab 1, Attach. 10 at c onsecutively numbered p. 42. -7- thirty day period set forth in the instructions (th e applicable period for civil appeals), attempting instead to file within the nin ety day period for criminal appeals. Moreover, he has made no showing that he mailed the appeal by certified, return-receipt-requested mail as explici tly required by the instructions. Second, although Goudeau makes the conclusory stat ement that his private counsel “abandoned” him, his own recitation of the facts indicates that he hired him only to argue the motion. R. Vol. I, Tab 1 at 15. Moreover, Goudeau makes no claim that he was not advised about the advantag es and disadvantages of appealing or about the existence of any meritorious grounds for an appeal. 6 In fact, it is undisputed that Goudeau understood and followed the requirements for initiating an appeal by filing a timely Notice of Appeal. While an appointed attorney may not withdraw merelybecause he or she believes an appeal to be frivolous, see Anders v. California , 386 U.S. 738, 744 (1967), generally, court leave is not required when a privately retained attorney wishes to withdraw at the conclusion of trial. McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 437 (1988) (“When retained counsel concludes that an appeal would be frivolous, he or she has a duty to advise the client that it would be a waste of money to prosecute the appeal a nd that it would be unethical7 In fact, Goudeau did eventually move the court to appoint counsel to

represent him, only to have his motion denied. How ever, the record clearly demonstrates that Goudeau’s motion came months afte r his direct appeal was dismissed. R. Vol. I, Tab 1, Attach. 11 (Order dat ed November 5, 1996, apparently in connection with Goudeau’s appeal of t he denial of his application for post-conviction relief). The law is clear thatdenial of counsel at that stage of the proceedings does not violate the Sixth Amendment. See Coleman v. Thompson , 501 U.S. 722, 756 (1991) (noting that a defendanthas no Constitutional right to counsel in state collateral proceedings). -8- for the lawyer to go forward with it.”). Notably, Goudeau makes no claim that he did not know how to seek appointed counsel for purp oses of his appeal; certainly the fact that he had previously moved for the appoi ntment of trial counsel suggests he was familiar with the procedure. 7In effect, Goudeau argues that, even though he dismissed his state appointed trial counsel, and then chose not to seek appointment of new counsel for his appeal, he is entitled to claim ineffectiveness. However, he cites no authority fo r this proposition, and under the circumstances, we conclude that Goudeau has notdemonstrated ineffectiveness. Finally, with respect to his constitutional claim based on the Houston mailbox rule, “[t]he rationale of Houston was not constitutional or equitable in nature; rather, it was based on an interpretation o f the word ‘filed’ in the rule . . . governing the timeliness of notices of appeal ” under Fed. R. App. P. 4(a)(1). Jenkins v. Burtzloff , 69 F.3d 460, 461 (10th Cir. 1995). In this case, Goudeau’s claimed error is premised on the Oklahoma court’s i nterpretation of a state-9-

procedural rule. As we have repeatedly noted, a fe deral court may not conduct habeas review for alleged errors of state law. Fero v. Kerby , 39 F.3d 1462, 1474 (10th Cir. 1994) (citing Estelle v. McGuire , 502 U.S. 62, 67-68 (1991)). We GRANT Goudeau’s motion to supplement. Because G oudeau has failed to make “a substantial showing of the denial of a c onstitutional right,” we DENY the certificate of appealability and DISMISS the ap peal.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge