IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-10297

_____________________

GARY STERLING,

Petitioner-Appellant,

versus

JAMES A. COLLINS, Director,

Texas Department of Criminal Justice,

Institutional Division

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

(June 22, 1995)

_________________________________________________________________

( )

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In our earlier consideration of this death penalty habeas

case, the petitioner sought a CPC and an order holding his

unexhausted federal habeas petition in abeyance so that he could

use federally appointed and paid counsel to exhaust his state

postconviction claims. We denied a CPC because he failed to

exhaust his postconviction claims, and we held that the petitioner

had no statutory right to federally funded counsel to exhaust state

remedies in state court. The Supreme Court granted a stay and
 

1Sterling v. Texas, ___ U.S. ___, 115 S.Ct. 503, 130 L.Ed.2d

412 (1994).

-2-

vacated1 our prior opinion of July 1, 1994, reported at 26 F.3d 29

(5th Cir. 1994). The Court has remanded this case to us for

further consideration in the light of McFarland v. Scott, ___ U.S.

___, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). McFarland held that

a capital defendant's right to federally appointed and funded

counsel attaches upon the filing of a motion for appointment of

counsel, notwithstanding that the defendant has not yet filed a

formal federal habeas corpus petition. In accordance with the

remand, we withdraw our earlier opinion and substitute the

following:

OPINION ON REMAND FROM SUPREME COURT

The basic question presented in the appeal before us is

whether an indigent state death row petitioner, who has failed to

exhaust state remedies, may secure federally appointed and paid

counsel to exhaust state remedies.

The federal district court dismissed Gary Sterling's habeas

corpus action for failure to exhaust state remedies and denied his

application for a certificate of probable cause ("CPC"). Sterling

asks this court for a CPC and for an order holding his federal

petition in abeyance so that he may use federally funded counsel to

pursue his state postconviction remedies. Because we hold that the

petitioner has not exhausted his postconviction claims, we deny a

CPC. Further, because we hold that he has no statutory right to
 

2This appointment of counsel statute requires the appointment

of counsel for an indigent defendant challenging his death sentence

-3-

federally funded counsel to pursue his postconviction claims in

state court, we deny his request for an order holding his federal

petition in abeyance. 

I

A Texas jury, based in part on the defendant's confession,

convicted Gary Sterling of murdering his robbery victim by bashing

his head with a bumper jack. Sterling v. State, 830 S.W.2d 114,

116 (Tex. Crim. App. 1992), cert. denied, ___ U.S. ___, 113 S.Ct.

816, 121 L.Ed.2d 688 (1992). The Texas jury, based in part upon

evidence of Sterling's other murders and the testimony of a

district attorney that he had never "run across . . . a more

violent mass murderer than Gary Sterling," sentenced the defendant

to death. Id. at 120.

II

Seeking relief from his death sentence, Sterling filed a

motion for stay of execution and for appointment of counsel in the

United States District Court for the Northern District of Texas on

January 22, 1993--just a few days before his scheduled execution

date. Sterling filed with this motion a petition for writ of

habeas corpus raising only claims identical to those he argued on

direct appeal. The federal district court granted the stay of

execution and appointed federally funded counsel pursuant to 21

U.S.C. § 848(q)(4)(B).2 Sterling then filed an amended habeas
in any postconviction proceeding under 28 U.S.C. § 2254 or 28

U.S.C. § 2255. We discuss this statute in more detail later in

this opinion.

-4-

corpus petition asserting thirty-nine grounds for relief. Only

five of those grounds had been addressed previously by Texas

courts. The state moved to dismiss Sterling's federal habeas

petition for failure to exhaust state remedies. Sterling argued

that in order to allow him properly to preserve his unexhausted

claims for habeas review, the federal habeas proceeding should be

held in abeyance so that he could enjoy his federal statutory right

to counsel while exhausting his state remedies. The district

court, agreeing with the magistrate judge to whom the case was

referred for recommendation, dismissed Sterling's habeas petition

for failure to exhaust state remedies and denied Sterling's

application for a CPC.

 III

A

Sterling now applies to us for a CPC in order to allow an

appeal from the district court's denial of his federal habeas

petition. Unless we grant a CPC, we have no jurisdiction to hear

an appeal from denial of habeas relief. Black v. Collins, 962 F.2d

394, 398 (5th Cir.), cert. denied, 504 U.S. 992, 112 S.Ct. 2983,

119 L.Ed.2d 601 (1992). To obtain a CPC, Sterling must make a

substantial showing that he has been denied a federal right.

Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77
 

3We note that although a CPC is required for appellate review

of the denial of habeas relief, no such requirement exists for

appellate review of the denial of appointment of counsel under §

848(q)(4)(B). Barnard v. Collins, 13 F.3d 871, 878 n.6 (5th Cir.

1994). The same rule should apply to the retention of such

counsel.

 

4We note that in Murray v. Giarratano, 492 U.S. 1, 109 S.Ct.

2765, 106 L.Ed.2d 1 (1989), the Supreme Court held that prisoners

have no constitutional right to counsel in habeas proceedings.

-5-

L.Ed.2d 1090 (1983). A fundamental prerequisite to federal habeas

relief under 28 U.S.C. § 2254 is the exhaustion of all claims in

state court under § 2254(b) prior to requesting federal collateral

relief. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71

L.Ed.2d 379 (1982) (requiring dismissal of habeas action containing

both exhausted and unexhausted claims). Because Sterling has

failed to exhaust all of the postconviction claims he now seeks to

raise, he has asserted no cognizable right to federal habeas relief

under § 2254. Consequently, we deny his application for a CPC.

B

In addition to the merits of his habeas claims, however,

Sterling argues that the district court's judgment had the effect

of depriving him of his federal statutory right, under 21 U.S.C. §

848(q)(4)(B), to retain his federally funded counsel in state

postconviction proceedings.3 Sterling argues that § 848(q)

obligates the federal government, once he has filed a federal

habeas petition, to appoint and fund counsel and that this counsel

must represent him in all state and federal proceedings from this

point forward.4 Sterling accordingly asks this court to direct the
Accordingly, our task is confined to statutory interpretation. 

 

5The Court further held that once the defendant invokes his

right to appointment of counsel, a district court has jurisdiction

to enter a stay of execution where necessary to give effect to this

right. Id. at 2574. 

-6-

district court to reinstate his non-cognizable federal habeas

petition and to hold the federal proceeding in abeyance to allow

him to use federally funded counsel to exhaust his state remedies.

Because this appeal arose before the Supreme Court's decision

in McFarland v. Scott, ___ U.S. ___, ___, 114 S.Ct. 2568, 2570, 129

L.Ed.2d 666 (1994), implicit in petitioner's argument was the

assumption that the filing of a federal habeas petition was

required to invoke the jurisdiction of the district court for

purposes of appointing counsel under 21 U.S.C. § 848(q)(4)(B). In

McFarland, however, the Supreme Court clarified this

misunderstanding and held that § 848(q)(4)(B) established a right

to federally funded legal assistance in the preparation of the

federal habeas corpus application. McFarland, 114 S.Ct. at 2572.

Thus, the Court concluded that a "'post conviction proceeding'

within the meaning of § 848(q)(4)(B) is commenced by the filing of

a death row defendant's motion requesting the appointment of

counsel for his federal habeas corpus proceeding."5 Id. at 2572-

73. 

In order to understand McFarland's application to this case,

we need to reiterate the procedural background of this case in the

district court. Upon Sterling's filing of his original federal
-7-

habeas petition, the district court then appointed his federally

paid counsel. Thus, even before McFarland, the district court

asserted jurisdiction to appoint this federally funded counsel to

represent Sterling. Sterling's federally paid counsel, however,

then filed an amended federal habeas petition, which contained

numerous unexhausted claims. As referred to earlier, 28 U.S.C. §

2254(b) provides that an application for a writ of habeas corpus

"shall not be granted unless it appears that the applicant has

exhausted the remedies available in the courts of the State." 28

U.S.C. § 2254(b). The district court must also dismiss a mixed

petition, such as Sterling's petition, containing both exhausted

and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510, 102

S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). Accordingly, the district

court was correct in dismissing Sterling's amended federal petition

for failing to exhaust his state remedies as required in § 2254,

and the district court did not err in refusing to hold in abeyance

a petition over which it simply and plainly had no jurisdiction.

See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-

55, 115 L.Ed.2d 640 (1991) ("This Court has long held that a state

prisoner's federal habeas petition should be dismissed if the

prisoner has not exhausted available state remedies as to any of

his federal claims."). Sterling cannot be allowed to use the

federal district court merely as a jurisdictional parking lot so

that he may somehow attach a right to federally paid counsel to a

non-cognizable pleading. Our task now, however, is to determine
 

621 U.S.C. § 848(q)(10) authorizes the payment of fees to

attorneys appointed under § 848(q)(4)(B).

-8-

whether, under McFarland, Sterling's appointment of counsel

survives the dismissal of his federal habeas petition.

C

To make this determination, we first set out the provisions of

the statute that are the foci of Sterling's claim. In pertinent

part, 21 U.S.C. § 848(q)(4)(B) provides:

In any post conviction proceeding under section 2254 or

2255 of Title 28, seeking to vacate or set aside a death

sentence, any defendant who is or becomes financially

unable to obtain adequate representation ... shall be

entitled to the appointment of one or more attorneys and

the furnishing of such other services in accordance with

paragraph[] ... (8)....

21 U.S.C. § 848(q)(4)(B). Section 848(q)(4)(B) seems to require

that federally appointed and paid counsel can only be provided in

federal habeas proceedings brought pursuant to 28 U.S.C. § 2254 or

28 U.S.C. § 2255. However, Section 21 U.S.C. § 848(q)(8) provides:

[E]ach attorney so appointed shall represent the

defendant throughout every subsequent stage of available

judicial proceedings, including pretrial proceedings,

trial, sentencing, motions for new trial, appeals,

applications for writ of certiorari to the Supreme Court

of the United States, and all available post-conviction

process, ... competency proceedings and proceedings for

executive or other clemency ....

§ 21 U.S.C. § 848(q)(8).6 Thus, once an attorney is appointed

pursuant to § 848(q)(4)(B), § 848(q)(8) provides that the

attorney's appointment continues "throughout every subsequent stage

of available judicial proceedings." In sum, the statute would seem
-9-

to provide that counsel may be appointed to assist an indigent

defendant only in federal habeas proceedings, but once appointed

counsel's representation of the defendant seems to continue from

this point forward, until all available postconviction proceedings

have been exhausted. The question before us, therefore, is whether

this statute is properly interpreted to allow federally appointed

and paid counsel to exhaust remedies in state court.

Although, in our consideration of this question of statutory

interpretation, it is important to examine McFarland, McFarland

actually does not resolve the question for us. After McFarland was

convicted of capital murder and sentenced to death, the Texas

courts affirmed his conviction and sentence, and the United States

Supreme Court denied certiorari. McFarland, 114 S.Ct. at 2570.

McFarland then requested state appointed counsel for his state

habeas corpus proceeding, but the trial court denied his request,

and the Texas appellate court affirmed this ruling because he had

not filed an application for writ of habeas corpus. Id. Having

failed to obtain counsel in state court, McFarland filed a pro se

motion with the federal district court for appointment of counsel

under § 848 (q)(4)(B) and for a stay of his execution. Id. The

district court denied McFarland's motion because no "post

conviction proceeding" had been initiated under § 2254 or § 2255.

Id. at 2471. On the night before his scheduled execution, the

Fifth Circuit denied McFarland's motion for appointment of counsel

and for stay of execution. Id. We held that federal courts could
-10-

only stay a state proceeding when a federal habeas corpus

proceeding was pending and such proceeding was not pending when the

defendant filed only a motion for appointment of counsel and stay

of execution. Id. The Supreme Court granted the stay and later

granted certiorari. Id. 

In its subsequent opinion, the Court observed that although §

848(q)(4)(B) grants "indigent capital defendants a mandatory right

to qualified legal counsel and related services '[i]n any [federal]

post conviction proceeding,'" the statute does not resolve how a

"post conviction proceeding" under § 2254 or § 2255 is commenced.

Id. at 2571-72. Seeking an answer to this question, the Court

examined § 849(q)(9), which allows the capital defendant's attorney

to obtain reasonable investigative services upon approval of the

court. McFarland, 114 S.Ct. at 2472. The Court reasoned that

because these services may be critical in the preapplication phase

of a habeas corpus proceeding, § 848(q)(4)(B) anticipates that

counsel will have been appointed before the need for these services

arises, and thus before the filing of the federal habeas petition.

Id. In sum, the Court held that a "post conviction proceeding"

within the meaning of § 848(q)(4)(B) "commences by the filing of a

death row defendant's motion requesting the appointment of counsel
 

7The Court additionally held that "once a capital defendant

invokes his right to appointed counsel, a federal court also has

jurisdiction...to enter a stay of execution." McFarland, 114 S.Ct.

at 2573.

 

8It would appear, however, to have been an empty gesture to

appoint counsel to McFarland, who had not exhausted state remedies,

unless counsel was intended to represent the death row petitioner

in state court proceedings. His failure to exhaust meant that his

federal proceeding was, practically speaking, at its end. The

Supreme Court, however, failed to address the consequences of this

fact.

-11-

for this federal habeas corpus proceeding."7 Id. at 2472-73

(emphasis added).

In any event, McFarland is clear only for the simple

proposition that upon the filing of a motion for appointment of

counsel, a "post conviction proceeding" within the meaning of §

848(q)(4)(B) is initiated, entitling the capital defendant to

federally funded counsel, notwithstanding that the defendant has

not filed a formal federal habeas petition. McFarland focused very

narrowly only on § 848(q)(4)(B). It did not address at all §

848(q)(8), which provides for the continued representation by the

appointed attorney throughout "every subsequent stage of available

judicial proceedings." Thus, McFarland is not authority supporting

Sterling's argument that counsel's appointment must continue under

§ 848(q)(8) when the federal habeas petition has been dismissed for

lack of state exhaustion. In sum, McFarland neither supports

clearly the argument for or the argument against allowing counsel

to continue his paid representation throughout exhaustion of the

defendant's state remedies.8 
-12-

D

Now, having dismissed McFarland as controlling of this case,

we are still left to determine whether § 848(q)(8) is properly

interpreted to allow Sterling's federally appointed and paid

counsel to continue his representation for the purpose of

exhausting state remedies in state court. We once again turn to

the statute.

Section 848(q), providing for appointment of counsel in death

penalty cases, is found in the Anti-Drug Abuse Act of 1988. 21

U.S.C. § 848(q). No House or Senate reports or other expression of

legislative intent in drafting this provision were submitted with

this legislation. See Act of October 21, 1988, Pub. L. No. 100-

690, 1988 U.S.C.C.A.N. (102 Stat.) 4181. Generally § 848 deals

with drug abuse prevention and control. Its essence is to impose

punishment of either life imprisonment or death for engaging in a

continuing criminal enterprise in violation of federal drug laws.

After establishing the elements of the law and the penalties for

violating the law, the statute proceeds to set out the procedures

for imposing the death penalty in federal criminal cases, and

includes sections relating to hearings, proof, findings, imposition

of sentence, and mitigating and aggravating factors. 

Section 848(q) is entitled "Appeal in capital cases; counsel

for financially unable defendants." This section seems primarily

directed to appeals of death penalty sentences in federal drugrelated cases; indeed § 848(q)(1)-(4)(A) are explicitly directed
-13-

only to cases in which a death sentence is imposed under federal

law. Furthermore, although compatible to postconviction cases,

certain language of § 848(q)(5)-(10) is more suggestive of federal

criminal cases than habeas cases. 

Section 848(q)(4)(B), however, does relate exclusively to

postconviction proceedings under 28 U.S.C. § 2254 and 28 U.S.C. §

2255. Furthermore, it expressly refers to subsequent § 848(q)(5)-

(9) as applicable to such postconviction proceedings. Section

848(q)(4)(B) provides for appointment of counsel only in

proceedings under federal law. Because the sections preceding and

following § 848(q)(4)(B) are couched in language relating more

directly to federal criminal trials and appeals, than to habeas

cases seeking relief from state court sentences, § 848(q)(4)(B)

seems awkwardly misplaced in this particular statute--indeed almost

like a statutory afterthought as far as its appearance in § 848(q)

is concerned. 

Finally, we come to the section that petitioner relies most

heavily upon--§ 848(q)(8)--that provides that unless appointed

counsel is replaced, each attorney appointed under this statute

shall represent the defendant throughout every subsequent

stage of available judicial proceedings, including

pretrial proceedings, trial, sentencing, motions for new

trial, appeals, applications for writ of certiorari to

the Supreme Court of the United States, and all available

post-conviction process, ... competency proceedings and

proceedings for executive or other clemency .... 

21 U.S.C. § 848(q)(8). We must acknowledge that a colorable

argument can be made that this subsection is broad enough to admit
-14-

an interpretation that once an attorney is appointed for any

purpose, the right to counsel so appointed does not terminate until

either the petitioner is executed or the death sentence is not only

set aside to be retried, but is in fact resolved by revocation. On

the other hand, considered in context of § 848(q) as a whole, we

find more persuasive the argument that § 848(q)(8) must be read in

the light of § 848(q)(4)(B), which provides that the right to

counsel applies only in connection with federal proceedings. The

fact that a cognizable federal habeas proceeding can be brought at

all assumes that the state proceedings have been concluded. In

this light, the words of § 848(q)(8), "shall represent the

defendant throughout every subsequent stage of available judicial

proceedings," is more reasonably interpreted as subsequent to the

completion of the state court proceedings. 

There are other reasons that prompt us to reject a broad

reading of § 848(q)(8). Among those is that, given that the

statute for appointment of counsel in postconviction proceedings

appears as somewhat of a statutory step-child in § 848(q), we are

reluctant to say that § 848(q)(8) should be read to express

congressional intent for so sweeping an idea that the federal

government will pay attorneys for a state defendant to pursue state

remedies in state courts. Our reluctance would seem especially

justified since the costs of federally funded attorneys would

increase the cost of implementing the statute enormously inasmuch
-15-

as it is in the state court proceedings that most of the litigation

is conducted.

Congress is usually more express in its intent when it decides

to fund a project. Indeed, the Texas Resource Center, which

assisted Sterling in obtaining his federally appointed counsel,

operates "primarily through a $3 million annual federal grant and

has 16 lawyers on staff," McFarland v. Collins, 8 F.3d 258, 260

n.4 (5th Cir. 1993) (Jones, J., dissenting). Seemingly, this

generous federal funding and adequate staffing would give the

Resource Center the financial and functional capabilities either to

represent or to assist in representing Sterling in his state

postconviction proceedings. Additionally, Article 1.051 of Texas

Code of Criminal Procedure provides that an eligible indigent

defendant is entitled to have the trial court appoint counsel in "a

habeas corpus proceeding if the court concludes that the interests

of justice require representation." TEX. CODE CRIM. P. art. 1.051

(West Supp. 1995). 

Additionally, we should at least observe that principles of

federalism are involved. It would seem indelicate on our part,

absent an express intent on the part of Congress, to permit

intrusion into the state judicial process by having lawyers who are

practicing before state courts, representing state court defendants

and petitioners pursuant to state court rules, to have their

qualifications set by federal statute (21 U.S.C. § 848(q)(5),(6))

and to be answerable, at least in part, to federal judges for their
 

9The court first held that a death-row inmate is not entitled

to federally appointed counsel until he files a formal habeas

petition. In re Lindsey, 875 F.2d at 1506. Although we recognize

that this holding is not in line with McFarland, this does not

tarnish the second portion of the court's opinion that assumes the

defendant is entitled to federally appointed counsel, but concludes

that this federally paid counsel was not intended to exhaust state

remedies in state court. Id.

-16-

conduct. Counsel who are appointed and qualified and whose pay is

approved by federal judges are ultimately controlled by and

responsible to federal courts. It is not too difficult to see that

the hand of the federal court may well find its way further into

state court proceedings and the independence of state courts

unnecessarily interfered with and compromised thereby. 

Finally, although no circuit court has decided this precise

issue since the Supreme Court's decision in McFarland, our holding

is in line with other circuit authority decided before McFarland.

McFarland does not change the backdrop against which these cases

were decided. In In re Lindsey, 875 F.2d 1502 (11th Cir. 1989),

the Eleventh Circuit held that assuming the defendant had a right

to federally appointed counsel under § 848(q)(4)(B),9 § 848(q)(8)

nevertheless did not encompass "any proceedings convened under the

authority of a State." In re Lindsey, 875 F.2d at 1506; see Hill

v. Lockhart, 992 F.2d 801, 803 (8th Cir. 1993)(agreeing with

analysis of In re Lindsey). We agree with the court's reasoning

that allowing the defendant to obtain federally appointed counsel

for use in state postconviction habeas proceedings would "have the
-17-

practical effect of supplanting state-court systems for the

appointment of counsel in collateral review cases." Id.

In short, we hold that Sterling has no right to appointed and

paid counsel under § 848(q)(4)(B) for the purpose of exhausting his

state postconviction claims. Once the federal court clearly has

jurisdiction and all exhaustion has been completed, Sterling can

refile his federal petition and then properly invoke his right to

federally paid counsel for "every subsequent stage of available

judicial proceedings"--a term we find unnecessary to define further

in these proceedings. 

IV

In conclusion, we hold that the district court properly

appointed counsel for purposes of the federal proceeding, including

this appeal, and, consequently, REMAND this case to the district

court to determine his compensation in accordance with § 848(q).

Because we have noted that a CPC is not required for appeal with

respect to the issues concerning § 848(q), we AFFIRM the district

court's decision not to hold Sterling's federal petition in

abeyance so that he could use federally funded counsel to pursue

his unexhausted state remedies. We further hold that Sterling

makes no substantial showing that he has been denied a federal

right and thus deny a CPC, and DISMISS that part of the appeal.

Finally, we hold that § 848(q) does not permit the appointment of

counsel to continue beyond the termination of this federal

proceeding.
-18-

AFFIRMED in part; DISMISSED in part;

and REMANDED.