IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 01-10511

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IN RE: DAVID LEE GOFF,

Movant.

_________________________________________________________________

Motion for an order authorizing the United States District Court

for the Northern District of Texas, Fort Worth Division, to

consider a successive habeas 28 U.S.C. § 2254 application, and

Motion for stay of execution

_________________________________________________________________ April 25, 2001

Before JOLLY, SMITH and PARKER, Circuit Judges.

PER CURIAM:

David Lee Goff, convicted of capital murder by the State of

Texas in Novembe r 1991, has filed a motion in this court for

permission to file a second federal habeas petition and a motion

for stay of execution. Goff’s initial request for a Certificate of

Appealability was denied by this court on September 8, 2000. G off

v. Johnson , No. 99-10305 (5th Cir. Sept. 8, 2000). In his motion

for permission to file a successive petition, Goff claims that his

initial state habeas counsel was ineffective for failing to raise

critical issues as to the ineffectiveness of his trial counsel to

investigate alibis. As a result, Goff claims that he was

foreclosed from raising the in effectiveness issue in his first

federal habeas petition. Because his state habeas counsel was2

ineffective, Goff argues that his claim for relief falls within an

exception to the ban on successive federal habeas filings outlined

in the Antiterroris m and Effective Death Penalty Act (AEDPA), 28

U.S.C. § 2244(b)(2).

The factual and procedural history of this case can be found

in the Texas Court of Criminal Appeals’ decision affirming Goff’s

conviction and sentence. Goff v. State , 931 S.W.2d 537 (Tex. Cr.

App. 1996). Briefly, the evidence shows that on September 1, 1990,

Goff stopped by the home of a friend, Craig Ford, and offered to

give Ford a ride to his mother’s house. Ford followed Goff out to

a blue panel van. The victim was sitting in the driver’s seat of

the van. Ford sat in the rear of the van and Goff sat in the

passenger seat.

The victim drove the van for a few minutes when Goff asked the

victim to pull over so he could relieve himself. Goff returned to

the van, reentered the passenger seat, and pointed a pistol at the

victim. Goff then grabbed the victim, threw him onto a mattress in

the back of the van, and handcuffed the victim’s hands behind his

back. Goff then shoved Ford towards the driver’s seat and told him

to drive.

Goff told Ford to find a dark street, and Ford drove the van

for several miles. At that point, Ford heard a single gunshot in

the back of the van. Ford pulled the van over near a secluded3

wood. After he attempted to help Goff remove the victim’s body

from the van, Ford fled the scene. Goff disposed of the body and

chased after Ford. He caught up with him and pulled out his gun,

ordering Ford to return to the van. The two returned to the

apartment where both of their girlfriends resided.

Testimony at trial pieced together the ensuing events. A

neighbor testified that Goff asked him to burn a van parked nearby

and told him not to worry about what wa s inside the van. The

neighbor declined. In addition, the daughter of Goff’s girlfriend

testified that Goff returned to the apartment that day with blood

on his pants and shirt. She also testified that both Goff and Ford

paced around the home, looked out the windows, and conversed

secretively that evening. She finally contacted police when she

heard news reports of the victim’s murder several days later.

The victim’s body was found three days later. The cause of

death was determined to be a single gunshot wound to the he ad.

Goff was thereafter tried and convicted of murder in the course of

kidnapping or burglary and sentenced to death. The Texas Court of

Criminal Appeals affirmed the sentence in May 1996, and the United

States Supreme Court de nied Goff’s petition for a writ of

certiorari. Goff v. Texas , 520 U.S. 1171 (1997).

Goff filed his first state habeas petition in December 1997.

That petition was denied in June 1998. In September 1998, Goff4

filed a petition for federal habeas relief in the United States

District Court for the Northern District of Texas. The petition

was denied on January 19, 1999, and this court denied Goff’s

request for a Certificate of Appealability on September 8, 2000.

Goff then filed a second application for post-convictio n

relief in the Texas Court of Criminal Appeals, arguing that he was

appointed incompetent state habeas counsel, which violated his

statutory right to competent counsel in Texas and his right to due

process under the Fourteenth Amendment. That petition was denied

on April 24, 2001.

Goff now seeks authority from this court to file a successive

federal habeas petition under 28 U.S.C. § 2244(b)(3)(A). Goff is

prohibited from filing a second federal habeas petition raising a

new claim unless he can show that “the factual predicate for the

claim could not have been discovered previously through the

exercise of due diligence” and “the facts underlying the claim, if

proven and viewed in the light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that, but

for constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.” 28 U.S.C. §

2244(b)(2)(B).

Goff’s claims for relief are without merit. The Supreme Court

has explicitly held that there is no protected Sixth Amendment

right to counsel in state post-conviction proceedings.5

Pennsylvania v. Finley

, 481 U.S. 551, 557 (1987). Goff argues

that, despite this fact, if a state chooses to create a statutory

system whereby counsel is appointed for state habeas petitioners,

the state must appoint competent counsel as determined by the Sixth

Amendment and due process.

In Finley

, the Supreme Court determined that, because the

state has no obligation to provide habeas counsel, the fact that

the state chooses to appoint counsel for post-conviction

proceedings does not trigger the protections of the Constitution:

Since respondent has no underlying constitutional right

to appointed counsel in state postconviction proceedings,

she has no constitutional right to insist on the Anders

procedures which were designed solely to protec t that

underlying constitutional right.

Id. The Supreme Court continued to reject Finley’s argument that

Evitts v. Lucey

, 469 U.S. 387 (1985), requires that a state comply

with due process requirements once it chooses to provide postconviction counsel. Indeed, Goff relies primarily on E vitts in his

motion be fore this court. The F inley court distinguished Evitts

and concluded that “[w]e think that Evitts provides respondent no

comfort.” 481 U.S. at 558.

In its concluding paragraph, the Finley court emphasized the

force of its holding:

At bottom, the decision below [ finding a right to

competent counsel in post-conviction proceedings] rests

on a premise that we are unwilling to accept--that when

a State chooses to offer help to those seeking relief6

from convictions, the Federal Constitution dictates the

exact form such assistance must assume. On the contrary,

in this area States have substantial discreti on to

develop and implement programs to aid prisoners seeking

to secure postconviction revi ew. In Pennsylvania, the

State has made a valid choice to g ive prisoners the

assistance of counsel without requiring the full panoply

of procedural protections that the Constitution requires

be given to defendants who are in a f undamentally

different position--at t rial and on first appeal as of

right. In this context, the Constitution does not put

the State to the diffi cult choice between affording no

counsel whatsoever or following the strict procedural

guidelines enunciated in Anders

.

Id. at 559. Incidentally, the F inley holding was reaffirmed and

expanded upon in Coleman v. Thompson

, 501 U.S. 722, 757 (1991), in

which the Supreme Court found that “[b]ecause Coleman had no right

to counsel to pursue his appeal in state habeas, any attorney error

that led to the default of Coleman’s claims in state court cannot

constitute cause to excuse the default in federal habeas.”

While Finley involved the application of Anders in state postconviction proceedings, the Fifth Circuit has directl y addressed

the issue of ineffective assistance. In I rving v. Hargett

, 59 F.3d

23 (5th Cir. 1995), thi s court noted that, absent a showing of

cause, a habeas petitioner was bound to assert ineffe ctive

assistance claims in his first federal habeas petition. Recalling

that a petitioner does not have a constitutional right to counsel

in post-conviction habeas proc eedings, the panel concluded that

“error or misconduct by Irving’s counsel cannot establish cause for

his f ailure to appeal the rejection of these claims in his first7

federal habeas proceedings.” Id. at 26.

A year later, in Callins v. Johnson

, 89 F.3d 210 (5th Cir.

1996), this court reiterated that the failure of a habeas attorney

to raise and preserve an issue cannot constitute cause and thus

cannot authorize a successive habeas petition. The court stated:

Counsel’s ineffectiveness will constitute cause only if

it is an independent constitutional violation, and there

is no constitutional right to counsel in habeas

proceedings. Thus, no error by habeas counsel can ever

constitute cause for abusing the writ.

Id. at 212 (citations omitted).

Goff attempts to undercut the strong precedent on this issue

by citing a 1966 Fifth Circuit case in which this court stated that

“[h]aving invoked the Texas statutes granting post-conviction

hearings, [the petitioner] had the right to be tried according to

the substantive and procedural due process requirements of the

Fourteenth Amendment.” W elch v. Beto

, 355 F.2d 1016, 1020 (5th

Cir. 1966). While the W elch holding does hint at some form of due

p rocess right once a state decides to provide a n onconstitutionally obligated service, the Supreme Cou rt has spoken

quite e xplicitly on this subject since W elch and has repeatedly

emphasized that ineffective assistance of counsel in a postconviction proceeding cannot serve as cause to excuse default in a

federal habeas proceeding. To that extent, at least, W elch has

been overruled and is no longer valid law in this circuit.8

As to Goff’s underlying claim that his trial counsel was

ineffective in not investigating the witnesses that he claims would

have put him in a different location at the time of the murder,

Goff presents only minimal evidence to suggest that prejudice

resulted from this alleged failure to i nvestigate. Indeed, Goff

concedes that he has been unable to locate two of the four

witnesses that supposedly would provide an alibi, and t he two

witnesses that are prepared to provide an alibi are Goff’s

grandmother and sister-in-law. Based on the facts, presented by

Goff, underlying his claim of ineffective assistance at trial, and

based on the Supreme Court’s determination that Goff’s claim is not

constitutiona lly cognizable, we cannot say that Goff has

established by “clear a nd convincing evidence that, but for

constitutional error, no reasonable factfinder would have found the

applic ant guilty of the underlying offense.” 28 U.S.C. §

2244(b)(2)(B)(ii).

In sum, the issues raised in Goff’s motion have no merit and

lack any support in Supreme Court or Fifth Cir cuit precedent.

Because Goff has failed to show why he is entitled to file a second

habeas petition under 28 U.S.C. § 2244(b)(2)(B), it is ORDERED that

movant’s motions for permission to file a success ive application

for writ of habeas corpus and stay of execution are

D E N I E D.