* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 31, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41326

Summary Calendar

 

GREGORY LAWRENCE MOORE,

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 Eastern District of Texas

USDC No. 6:00-CV-758

--------------------

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Gregory Lawrence Moore, Texas prisoner # 799979, filed a

petition under 28 U.S.C. § 2254 to attack his 1998 conviction and

20-year sentence for failure to appear. The district court

granted relief on Moore’s claim that his appellate counsel had

been ineffective for failing to timely notify Moore of the

outcome of his appeal and the right to proceed further by filing

a state petition for discretionary review (“PDR”). The district

court denied relief on Moore’s remaining claims. 
No. 03-41326

-2-

On the respondent’s appeal, this court vacated the judgment

of the district court and concluded that the state habeas court’s

denial of relief on Moore’s claim of ineffective assistance of

appellate counsel “was not contrary to or an unreasonable

application of clearly established federal law as determined by

the Supreme Court of the United States.” Moore v. Cockrell,

313 F.3d 880, 881 (5th Cir. 2000). This court remanded for

further consideration in light of the deferential standard under

the Antiterrorism and Effective Death Penalty Act (AEDPA). 

Id. at 882.

On remand, the district court denied relief. Moore filed a

timely notice of appeal and applied for a certificate of

appealability (COA). The district court granted COA on three

issues raised for the first time in Moore’s COA application: 

1) whether Moore had a constitutional right to file a state PDR;

2) who has the duty to timely inform a defendant of the outcome

of his state direct appeal; and 3) whether there is a conflict

between the Texas Rules of Appellate Procedure, the Federal Rules

of Appellate Procedure, and this court’s decision in Moore. 

In his brief, Moore attacks the rationale of the decision in

Moore, arguing the three issues on which COA was granted. The

respondent contends that this court should not consider Moore’s

arguments because they were raised for the first time in his COA

application in the district court. 

In Roberts v. Cockrell, 319 F.3d 690, 695 (5th Cir. 2003),

we stated that “[w]e generally will not consider a claim raised

for the first time in a COA application.” We noted that the
No. 03-41326

-3-

petitioner, who raised an equitable tolling argument for the

first time in his COA application in the district court, “could

and should” have raised the issue earlier. See id. Here, Moore

had the opportunity to raise all of the issues on which COA was

granted in his objections to the magistrate judge’s report, which

recommended that his 28 U.S.C. § 2254 petition be denied based on

the decision in Moore. Because Moore “could and should” have

raised the issues prior to his COA application in the district

court, this court will not consider them. See id. Accordingly,

the judgment of the district court is AFFIRMED. The respondent’s

motion to vacate the COA granted by the district court and to

dismiss the appeal is DENIED.

After briefs were filed, Moore’s appointed counsel, John

Bennett, moved to withdraw. The motion is GRANTED. See 5th Cir.

Plan Under the Criminal Justice Act (“CJA”), § 5(B). David P.

O’Neil is hereby appointed as his attorney. Moore’s motion is

GRANTED. See 18 U.S.C. § 3006A(c); Fifth Circuit Plan under the

CJA, § 3.