### REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-40638

_______________

RICKY BLANKENSHIP,

Plaintiff-Appellant,

VERSUS

GARY L. JOHNSON, Director,

Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________ July 17, 1997

ON PETITION FOR REHEARING

Before WISDOM, SMITH, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Since the panel opinion was issued in t his case, s ee

Blankenship v. Johnson

, 106 F.3d 1202 (5th Cir. 1997), the Supreme

Court has held §§ 101-106 of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996) (codified at 28 U.S.C. §§ 2244, 2253-2254), inapplicable to

non-capital habeas corpus petitions filed before the act's2

effective date of April 24, 1996. S ee Lindh v. Murphy

,

No. 96-6298, 65 U.S.L.W. 4557 (U.S. June 23, 1997). As the

petitioner's habeas petition pre-dated the act, he is not subject

to it. Accordingly, the petition for rehearing is GRANTED. We

withdraw the opinion and substitute the following:

Ricky Blankenship appeals the denial of his petition for writ

of habeas corpus. Concluding that he was entitled to effective

assistance of counsel on a discre tionary review r equested by the

state , we reverse and remand.

I.

In 1988, Blankenship was convicted of aggravated robbery,

sentenced to ten years in prison and released pending appeal. On

direct appeal, his court-appointed attorney, Michael Lantrip,

successfully ar g ued that the indictment was fatally deficient

because it listed Blankenship’s victim as “Armando” when the actual

victim was Ar mando’s brother, Rudolfo. The court of appeals

reversed a nd ordered an acquittal. S ee Blankenship v. Texas

,

764 S.W.2d 22 (Tex. App. SS Texarkana 1989).

U nbeknownst to Blankenship, Lantrip had been elected county

attorney shortly after he argued Blankenship’s appeal. Lantrip did

not inform his client of this fact or withdraw from the case.

I n January 1989, the local district attorney and the state1 For the first time on appeal, Blankenship argues that he is entitled to

relief on the ground of double jeopardy. As he failed to present this issue to

(continued...)

3 prosecuting attorney filed petiti ons with the Texas Court of

Criminal Appeals seeking discretionary review of th e reversal.

These petitions were served on Lantrip, who still was Blankenship’s

attorney of record but did not inform his client of the petitions

or take any action on them.

In June 1989, the Court of Crimin al Appeals granted the

petitions for discretionary review. Again, Lantrip did not inform

Blankenship of this event, file any brief on his behalf, appear, or

take an y other action whatsoever. In March 1990, the Court of

Criminal Appeals reversed the court of appeals, thereby reinstating

the conviction, because “there was evidence that Rudolfo was known

as Armando.” B lankenship v. Texas

, 785 S.W.2d 158, 160 (Tex. Crim.

App. 1990) (en banc).

Blankenship had no knowledge of these events. It came as a

considerable shock t o him when, some fifteen months after the

reversal of his convi ction by the intermediate court, the police

arrived to arrest him in April 1990.

Blankenship wrote a number of letters to Lantrip but received

no response. Finally, in November 1991, Lantrip answered

Blankenship: “I have not withdrawn. I was elected County Attorney

and by law I cannot represent a defendant in a criminal matter and

also be a prosecutor for the State of Texas.”

B lankenship filed a state habeas corpus petition, which was

denied on June 24, 1994. 1 He then filed the instant federal habeas(...continued)

the state courts as required by 28 U.S.C. § 2254(b)-(c), we may not review this

claim. See Bufalino v. Reno , 613 F.2d 568, 570 (5th Cir. 1980).

4 petition, alleging that he was denied effective assistance of

counsel before the Court of Criminal Appeals because of Lantrip’s

total inactivity and conflict of interest. The district court

denied the petition, and we granted Blankenship’s motion for a

certificate of probable cause (“CPC”) to appeal.

II.

In Drinkard v. Johnson , 97 F.3d 751, 764-66 (5th Cir. 1996),

cert. denied

, 117 S. Ct. 1114 (1997), we held that the new

standards of review contained in § 104(3) of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104-132,

110 Stat. 1214, 1219 (1996) (codified at 28 U.S.C. § 2254), apply

to all pending cases. On February 20, 1997, we issued an opinion

in this case. S ee Blankenship v. Johnson

, 106 F.3d 1202 (5th Cir.

1997).

The panel majority stated that it was “bound by the rigid

constraints of the AEDPA” and could “undermine the state courts in

proceedings such as this only if their decisions are contrary to

clear, then-existing Supreme Court precedent.” Id. at 1206. The

panel majority, concluding that Blankenship had not met this high

standard, affirmed the denial of relief. S ee id. The dissent

concluded that an indigent criminal defendant 's right to counsel

when a state seeks and is granted discretionary review was well

established by existing law.2 Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require a

“certificate of appealability” before a final order in a habeas proceeding can

be appealed. S ee 110 Stat. at 1217. Section 2253 also is a part of chapter 153.

Therefore, this new requirement does not apply to Blankenship’s appeal, and the

grant of a CPC is sufficient to vest jurisdiction in this court. S ee Green

, 1997 WL 359070, at *3.

5 The Su preme Court now has taught us that the AEDPA is not

applicable to this case. Relying on the canon of expressio unius

est exclusio alterius

, the Court divined that Congress intended “to

app ly the amendments to chapter 153 only to such cases as were

filed after the statute’s enactment.” L ind h v. Murphy

,

No. 96-6298, 65 U.S.L.W. 4557, 4558 (U.S. June 23, 1997). As

§ 2254 is a part of chapter 153, Lindh effectively overrules

Drinkard insofar as the retroactivity of the chapter 153 amendments

are concerned. S ee Green v. Johnson

, No. 96-50669, 1997 WL 359070,

at *3 n.2 (5th Cir. June 27, 1997).

Blankenship filed his habeas petition in February 1995, well

before the effective date of the AEDPA. 2 Our earlier decision,

therefore, is untenable in light of Lindh

.

III.

A.

The district court held that Blankenship had no right to the

assistance of counsel during proceedings in the Court of Criminal

A ppeals. We review determinations of law d e novo

. S ee Dison v.

Whitley , 20 F.3d 185, 186 (5th Cir. 1994).

A claim of ineffective assistance of counsel must be

predicated upon an underlying right to the assistance of counsel.3 See Ex parte Jarrett , 891 S.W.2d 935, 939-40 (Tex. Crim. App. 1994)

(en banc) (holding that a defense attorney must advise his client of the meaning

and effect of an adverse appellate decision and his right to seek review in the

Court of Criminal Appeals). As Blankenship won on direct appeal, the right to

petition the Court of Crimin al Appeals belonged to the state, not to him, so

Jarrett is inapplicable.

6 See Wainwright v. Torna , 455 U.S. 586, 587-88 (1982) (per curiam)

(“Since respondent had no constitutional right to counsel, he could

not be deprived of the effective assistance of counsel.”). Thus,

we must decide whether Blankenship had a right to counsel during

his appeal before the Court of Criminal Appeals. This is a matter

of first impression.

B.

Usu ally, T eague v. Lane

, 489 U.S. 288 (1989) (plurality

opinion), prohibits t he application of a new rule of law in the

context of a habeas petition. The rule, however, is not

jurisdictional; the state may waive it. S ee Collins v. Youngblood

,

497 U.S. 37, 41 (1990). The state also may waive the T eague bar

implicitly by failing to raise it. S ee Schiro v. Farley

, 510 U.S.

222, 228-29 (1994); Godinez v. Moran

, 509 U.S. 389, 397 n.8 (1993).

The state raises Teague as a defense to prevent our holding

that Lantrip was deficient in advising Blankenship of his right to

further appellate review. 3 Also, in its brief filed in this court,

u nder “Standard of review,” the state mentions that “Blankenship

generally may not obtain relief based on new rules of

constitutional law that have yet to be announced or that were4 Before the district court, the state did not even raise T eague in

opposition to a Jarrett claim. The only mention of T eague was a statement like

the one reported above.

5 See F ED

. R. A PP

. P. 28(a)-(b) (requiring briefs to "contain the contentions

of the appellant on the issues presented, and the reasons therefor, with citations

to the authorities, statutes, and parts of the record relied on"); Cavallini v.

State Farm Mut. Auto Ins. Co.

, 44 F.3d 256, 260 n.9 (5th Cir. 1995) (holding that

"failure to provide any legal or factual analysis of an issue results in waiver");

United States v. Maldonado

, 42 F.3d 906, 910 n.7 (5th Cir. 1995) (reasoning that

failure to do more than vaguely refer to an issue constitutes waiver); Zuccarello

v. Exxon Corp.

, 756 F.2d 402, 407 (5th Cir. 1985) (noting that co urt will not

consider an issue that was not briefed under standards of rule 28).

7 announced after his conviction became final.” 4

The state, however, never asserted T eague against the claim

that Blankenship had a right to counsel on state-requested

discretionary review, nor did it provide any argument or reasoning

as to why Teague might apply there. In such a situation, we feel

secure in stating that the state has waived its Teague argument, at

least as to Blankenship’s claim that he had a right to counsel in

the state-requested discretionary review. 5

This is unlike the situation in Goeke v. Branch

, 514 U.S. 115,

117 (1995) (per curiam), in which the state raised the Teague

defense before both the district court and the court of appeals.

There, the defense was raised, albeit in an informal manner; here,

the state has not asserted it at all as a defense to the claim that

Blankenship had a right to counsel on state-requested discretionary

review. We do not read Branch as eclipsing rule 28.

C.

Although Texas has waived the Te ague defense implicitly, we

nonetheless have the discretion to apply it. S ee Caspari v.8

Bohlen , 510 U.S. 383, 389 (1994). We decline to do so.

The Court of Criminal Appeals issued its judgment on April 3,

1990. Blankenship had only until July 2 to file a petition for

writ of certiorari with the United States Supreme Court. S ee S UP

.

C T

. R. 13 .1. Upon motion, and for good cause shown, the Circuit

Justice could have extended this deadline until August 31. S ee

S UP

. C T

. R. 13.2, 493 U.S. 1109 (1989) (repealed 1995). During that

time, Blankenship had no knowledge of the events surr ounding the

proceedings in the Court of Criminal Appeals. Lantrip did not

respond to his repeated inquiries until November 1991, long after

the deadline for filing a certiorari petition.

In short, it was not possible for Blankenship to raise, on

direct appeal, his claim of ineffective assistance regarding staterequested dis cretionary review. So, under the circumstances, we

will not exercise our discretion to consider the Teague bar that

the state has waived. This decision does not imply that Teague

would have barred Blankenship's claim, had we reached that issue.

IV.

We acknowledge the well-settled rule that a criminal defendant

does not have a right to counsel for the preparation of petitions

for discretionary review. S ee Ross v. Moffitt

, 417 U.S. 600

(1974). Texas asks us to extend this rule and hold that there is

no right to counsel during the discretionary review itself. In

deciding this issue, we need consider only the situation in which

t he state, rather than the defendant, has requested and obtai ned9

the discretionary review.

For many years, the court s have held that indigent criminal

defendants have the right to appointed counsel in direct appeals.

See Douglas v. California

, 372 U.S. 353 (1963). This right arises

from the Equal Protection and Due Process Clauses. S ee United

States v. Palomo , 80 F.3d 138, 141 (5th Cir. 1996).

T his right would be impaired, however, if the state were

allowed to challenge the defendant's successful dire c t appeal

without providing him with counsel after a discretionary appeal is

granted to the state. The indigent criminal defendant,

unrepresented by counsel, would be unable to defend the reversal of

his conviction in all but the most compelling cases.

Furthermore, if the state felt it was likely that

discretionary review would be granted on it s petition, it could

sandbag the first appeal. Knowing that its arguments on direct

appeal would be contradicted by competent legal counsel, it could

save its strongest arguments for the discretionary appeal. In this

regard, we note that the district attorney who prosecuted

Blankenship offered only a four-p age brief on direct appeal.

Before the Court of Criminal Appeals, however, the state filed two

briefs tota ling some sixteen pages. The later briefs are

incomparably more thorough and well researched.

Finally, we find the words of the Supreme Court informative:

“But where the merits of the one and only appeal an indigent has as

of right are decided without benefit of counsel, we think an

unconstitutio nal line has been drawn between rich and poor.”6 We address only the right to effective counsel once the state has

successfully obtained discretionary review in the Court of Criminal Appeals. We

express no view as to whether a defendant in Blankenship's circumstance has the

right to effective counsel to oppose the state's request for such discretionary

review.

10 Dou glas , 372 U.S. at 357. In the instant case, Blankenship was

without counsel the only time the merits of his only appeal were

decided against him.

Now considering this question unfettered by statutorilymandated deference, we find that the arguments in favor of a right

to counsel on state-requested discretionary review are persuasive.

The constitutional guarantees of equal protection and due process

entitled Blan kenship to counsel before the Court of Criminal

Appeals.

V.

A.

As we hold that Blankenship had the right to counsel during

the state-requested discretionary appeal, 6 we must determine

whether he indeed suffered from ineffective assistance of counsel

during that appeal. S ee Evitts v. Lucey

, 469 U.S. 387, 397 (1985)

(holding that “the promise

. . . that a criminal defendan t has a

right to counsel on appeal . . . would be a futile gesture unless

it comprehended the right to the effective assistance of counsel”).

Usually, a fi nding of ineffective assistance requires a finding

that (1) counsel’s performance was deficient and (2) that

deficiency prejudiced the defendant. S ee Strickland v. Washington

,

466 U.S. 668, 687 (1984). Prejudice is presumed when counsel is7 See Penson v. Ohi o

, 488 U.S. 75, 88 (1988) (“Because the fundamental

importance of the assistance of counsel does not ceas e as the prosecutorial process

moves from the trial to the appellate stage, the presumption of prejudice must

extend as well to the denial of counsel on appeal.”) (citation omitted); Lombard v.

Lynaugh , 868 F.2d 1475, 1480 (5th Cir. 1989).

8 Under Texas law, Lantrip remained Blankenship’s attorney. S ee T EX

. C ODE

C RIM

. P ROC

. A NN

. art. 26.04(a) (Vernon 1989 ) (“An attorney appointed under this

sub section shall represent the defendant until charges are dismissed, the

defendant is acquitted, appeals are exhausted, or the attorney is relieved of his

duties by the court or replaced by other counsel.”); Ward v. Texas , 740 S.W.2d

794, 796-97 (Tex. Crim. App. 1987) (en banc); see also T EX

. D ISCIPLINARY R. P ROF ’ L

C ONDUCT 1.15(d)

, r eprinted in T EX

. G OV ’ T C ODE A NN

., tit. 2, subtit. G, app. A

(Vernon Supp. 1997) (T E X

. S TATE B AR R. art. X, § 9) (“Upon terminat ion of

representation, a lawyer shall take steps to the extent reasonably practicable

to protect a client’s interests, such as giving reasonable notice to the client

. . . .”).

11 denied completely, either actually or constructively. 7

Lantrip did nothing whatsoever in the review by the Court of

Criminal Appea ls. Thus, constructively, Blankenship was denied

counsel. C f. Lombard

, 868 F.2d at 1481 (holding that when counsel

did not withdraw 8 but failed t o raise any issues on appeal,

assistance of counsel was construct i vely denied). Therefore,

Blankenship need not demonstrate prejudice to obtain relief.

B.

Alternately, Blankenship can prove ineffective assistance by

showing that (1) counsel actively represented conflicting interests

and (2) an actual conflic t of interest adversely affected his

performance. S ee Culyer v. Sullivan

, 446 U.S. 335, 348 (1980);

Beets v. Scott

, 65 F.3d 1258, 1265 (5th Cir. 1995) (en banc), cert.

denied , 116 S. Ct. 1547 (1996). As Lantrip was a county attorney

at the time of the di scretionary appeal, the first prong is met;

the second prong is demonstrated by Lantrip’s inaction. Under

either theory, Blankenship was denied effective assistance on the12

state-requested discretionary appeal.

VI.

The proper remedy for this constitutional violation is the

same as the one we fashioned in Lombard , 868 F.2d at 1484:

[T]he district court's judgment denying habeas relief is

reversed, and the cause is remanded to the district court

so that it may enter judgment granting the writ of habeas

corpus issue [sic] unless the state affords [the

defendant] an out-of-time [ rehearing in the Court of

Criminal Appeals] within such reasonable time as the

district court may fix, and for further proceedings not

inconsistent herewith.

The judgment, accordingly, is REVERSED and REMANDED.