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 this 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's

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

,

No. 96-6298, 65 U.S.L.W. 4557 (U.S. Ju ne 23, 1997). As the2

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 discretionary 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 argued that the indictment was fatally deficie n t

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

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

reversed and ordered an acquittal. S ee Blankenship v. Texas

,

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

Unbeknownst to Blankenship, Lantrip h ad 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.

In January 1989, the local distri ct attorney and the state

prosecuting attorney filed petiti ons with the Texas Court of

Criminal Appeals seeking discreti onary review of the reversal.1 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

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).

3 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 Criminal Appeals granted the

petitions for discretionary review. Again, Lantrip did not inform

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

take any 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 kno wledge of these events. It came as a

con siderable shock to him when, some fifteen months after the

reversal of h is conviction 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.”

Blankenship filed a state habeas corp us petition, which was

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

petition, alleging that he was denied effective assistance of4

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 ne w

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.

The Supreme 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 “to2 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 apply the ame ndments to chapter 153 only to such cases as were

filed after the st atute’s enactment.” L indh 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

Appeals. 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.

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,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 Criminal Appeals belonged to the state, not to him, so

Jarrett is inapplicable.

4 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.

6 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.

Usually, Teague v. Lane

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

opinion), prohibits the 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 his representation of Blankenship in

the Court of Criminal Appeals. 3 Also, in its brief filed in this

court, under “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 were

announced after his conviction became final.” 4

The state, however, never asserted T eague against the c laim

that Blankenship had a right to counsel on state-requested5 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 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 t he Teague defense implicitly, we

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

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 Circuit8

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

t ime, Blankenship had no knowledge of the events surrounding 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 discretionary r eview. So, under the circumstances, we

will not exercise our discretion to consider the Teague bar that

t he 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

the state , rather than the defendant, has requested and obtained

the discretionary review.

F or many years, the courts 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 United9

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

This right would be impaired, however, if the state were

allowed to challenge the defendant's suc c essful direct 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.

Furthermor e, if the state felt it was likely that

discretionary review would be granted on its pe tition, 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 o ffered only a four-page brief on direct appeal.

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

briefs totaling some six teen 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

unconstitutional line has been drawn between rich and poor.”

Douglas

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

without counsel t he 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 right6 We addre ss 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.

7 See Penson v . Ohio , 488 U.S. 75, 88 (1988) (“Because the fundamental

importance of the assistance of counsel does not cease 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).

10 to counsel on state-requested discretionary review are persuasive.

The constitutional guarantees of equal protection and due process

entitled Blankenship to counsel before the Court of C riminal

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)

(hold ing that “the promise . . . that a criminal defendant 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 findin g 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 is

denied completely, either actually or constructively. 7

Lantrip did nothing whatsoever in the review by the Court of8 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 Cri minal Appeals. Thus, constructively, Blankenship was denied

counsel. C f. Lombard

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

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

assistance of coun s el was constructively 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 conflict 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 o f the discretionary appeal, the first prong is met;

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

either theory, Blankenship was denied effective assistance on the

state-requested discretionary appeal.

VI.

The proper remedy for this constitutional violation is the12

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.