Sterling v. Scott

• Citation: 57 F.3d 451
• Decision Date: 22 June 1995
• Docket Number: No. 94-10297,94-10297
• Parties: Gary STERLING, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 451

57 F.3d 451

Gary STERLING, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 94-10297.

United States Court of Appeals, Fifth Circuit.

June 22, 1995.

J. Thomas Sullivan (Ct. appointed), UALR School of Law, Little Rock, AR, Phyllis Louise Crocker, TX Resource Center, Austin, TX, for appellant.

William C. Zapalac, Dan Morales, Attys. Gen., Austin, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before JOLLY, DUHE 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 vacated ¹ 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 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. Sec. 848(q)(4)(B). ² Sterling then filed an amended habeas 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 L.Ed.2d 1090 (1983). A fundamental prerequisite to federal habeas relief under 28 U.S.C. Sec. 2254 is the exhaustion of all claims in state court under Sec. 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 Sec. 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. Sec. 848(q)(4)(B), to retain his federally funded counsel in state postconviction proceedings. ³ Sterling argues that Sec. 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 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. Sec. 848(q)(4)(B). In McFarland, however, the Supreme Court clarified this misunderstanding and held that Sec. 848(q)(4)(B) established a right to federally funded legal assistance in the preparation of the federal habeas corpus application. McFarland, --- U.S. at ----, 114 S.Ct. at 2572. Thus, the Court concluded that a " 'post conviction proceeding' within the meaning of Sec. 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 ---- - ----, 114 S.Ct. 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 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. Sec. 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. Sec. 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 Sec. 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 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. Sec. 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. Sec. 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...