Under the AEDPA, a state prisoner seeking to raise claims in a federal petition for habeas corpus ordinarily must first present those claims to the state court and exhaust his state remedies. Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001), cert. denied sub nom. Martinez v. Cockrell, 534 U.S. 1163 (2002). If an applicant raises a claim in his federal habeas corpus application which was not presented to the state courts, the federal court will attempt to allow the applicant to return to state court and present them to the state court in a successive petition, either by dismissing the entire petition without prejudice, see Rose v. Lundy, 455 U.S. 509, 520-22 (1982), or by staying the federal proceedings, see Rhines v. Weber, 544 U.S. 269, 279 (2005). If the federal court is convinced that the state court would refuse to consider the merits of such a successive petition, however, the federal court will treat the unexhausted claims as if the state court had already refused to hear them on procedural grounds. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
The district court construed both of these grounds as claims of ineffective trial counsel and found them procedurally defaulted because Balentine had not presented the claims in his state habeas petition. See Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001). Balentine refers us to an exception to the exhaustion requirement.
Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997). We have repeatedly held that ineffective assistance of state habeas or post-conviction counsel cannot serve as cause for a procedural default.See, e.g., Henderson, 333 F.3d at 606; Martinez v. Johnson, 255 F.3d 229, 239-41 (5th Cir. 2001) (and citations therein); Beazley v. Johnson, 242 F.3d 248, 271 (5th Cir. 2001). Matchett does not question this. A state prisoner has no constitutional right to an attorney in state post-conviction proceedings and thus cannot claim ineffective assistance of counsel in such proceedings.
"There is no constitutional right to an attorney in state post-conviction proceedings . . . [c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Martinez v. Johnson, 255 F.3d 229, 240-41 (5th Cir. 2001). Elizalde first contends that Coleman is inapplicable when a State takes on the responsibility of providing competent state habeas counsel.
The Fifth Circuit has consistently found unexhausted claims, which would be barred by the Texas abuse-of-the-writ doctrine if raised in a successive state habeas petition, are procedurally barred. See, e.g., Ogan v. Cockrell, 297 F.3d 349, 358 n.6 (5th Cir. 2002); Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001); Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir. 1998) (Texas abuse-of-the-writ doctrine is regularly and strictly applied); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995) (dismissal is independent and adequate state bar). However, the federal court may deny a claim on the merits, even if the claim is unexhausted.
The evidence is sufficient to support the jury's affirmative answer to this issue if, viewing the evidence in the light most favorable to the verdict, any rational juror could find the elements of the issue beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Martinez v. Johnson, 255 F.3d 229, 244 n. 21 (5th Cir. 2001) (noting that the Texas Court of Criminal Appeals applies the Jackson standard to evaluate the sufficiency of future-dangerousness evidence). The Jackson standard is used to determine if the amount of evidence satisfies the due process clause, while state law determines the substantive elements that must be proven.
A petitioner must exhaust his remedies in State court prior to seeking federal habeas relief. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); 28 U.S.C. § 2254(b)(1). A petitioner has exhausted his claim when he has fairly presented the claim for which he seeks relief to the highest court of the State.
However, applicant overlooks that the underlying claim on habeas in Carpenter was ineffective assistance of counsel on direct appeal, not habeas review.See Coleman, 501 U.S. at 752 (because no constitutional right to counsel exists in a state death penalty habeas case, there can be no deprivation of effective assistance in that proceeding); In re Goff, 250 F.3d 273, 275-76 (5th Cir. 2001) (Texas prisoner sentenced to death could not claim ineffective assistance of habeas counsel in successive habeas petition because he had no constitutional right to counsel on habeas review); Martinez v. Johnson, 255 F.3d 229, 239-41 (5th Cir. 2001) (Texas capital murder applicant foreclosed from claiming ineffective assistance of counsel on subsequent writ because no constitutional right to counsel exists in habeas corpus proceedings) ( as revised July 20, 2001); Ex Parte Mines, 26 S.W.3d at 913-16. 529 U.S. 446 (2000).
The failure to exhaust is a procedural bar to federal review that may be excused if the petitioner "can demonstrate cause for the defaults and actual prejudice." Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir.2001). D.
This is true even where a claim cannot be brought, or brought effectively, until state habeas proceedings.See, e.g., Coleman, 501 U.S. at 722, 111 S.Ct. 2546; Martinez v. Johnson, 255 F.3d 229, 239-40 (5th Cir. 2001); Beazley v. Johnson, 242 F.3d 248, 270-72 (5th Cir. 2001); Elizalde v. Dretke, 362 F.3d 323, 330 (5th Cir. 2004). The district court analyzed the issue only when discussing "cause."