United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 9, 2004
FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III
Clerk
No. 03-20197

FARLEY CHARLES MATCHETT,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
BY THE COURT:
Petitioner-Appellant Farley Charles Matchett, a Texas death-
row prisoner (# 999060), seeks a certificate of appealability
("COA") to appeal the district court's dismissal of his 28 U.S.C.
§ 2254 habeas corpus application on the ground that his claims of
ineffective assistance of counsel are procedurally defaulted.
I.
FACTS AND PROCEEDINGS
In 1993, Matchett pleaded guilty to the capital murder of
Uries Anderson by stabbing him and hitting him with a hammer during
a robbery. See Matchett v. State, 941 S.W.2d 922, 926 (Tex. Crim.
App. 1996). Following completion of the punishment proceeding

against Matchett, the jury answered three special issues in the
affirmative, and the trial court assessed a sentence of death.
Represented on direct appeal by the same attorneys who
represented him at trial, Matchett raised 37 points of error.
Matchett, 941 S.W.2d at 926-41. In 1996, the Texas Court of
Criminal Appeals affirmed the conviction and death sentence,
rejecting most of the claims on the merits. See id.
In 1997, represented by newly appointed counsel, Matchett
filed a state post-conviction application summarily listing 72
individual grounds for relief. He briefed but a few of these
claims in a memorandum filed in support of the application. The
state trial court adopted the respondent's proposed findings of
fact and conclusions of law and concluded that most of the grounds
for relief "were unsupported by argument and/or authorities." In
2001, the Court of Criminal Appeals denied Matchett's post-
conviction application, ruling that "[t]he findings and conclusions
by the trial court are supported by the record."
Later that year, the federal district court appointed a new
attorney for Matchett so that he could file a 28 U.S.C. § 2254
habeas application. This attorney first filed a successive post-
conviction application in state court, however, raising several
claims of ineffective assistance of counsel that had not been
raised previously, viz., failing to investigate and present a
complete and accurate mitigation defense; failing to challenge the
admissibility of the rebuttal testimony of State psychological
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expert, Dr. Walter Quijano, on the ground that the testimony was
not reliable; and advising Matchett to plead guilty, with the
effect of forfeiting his right to challenge the legality of his
arrest and the admissibility of his confession on direct appeal.
In May of 2002, the Texas Court of Criminal Appeals denied this
second post-conviction application as an abuse of the writ.
Matchett then filed the instant 28 U.S.C. § 2254 application,
raising the same claims of ineffective assistance of counsel that
had been raised in his second state post-conviction application.
He also contended that the trial court had issued an
unconstitutional jury instruction on intoxication when it "severely
limited" the jury's ability to consider and give effect to the
cocaine-intoxication evidence. The respondent moved for summary
judgment, arguing that Matchett's ineffective-assistance claims
were procedurally defaulted, based on the Court of Criminal
Appeals' abuse-of-the-writ ruling, and that the intoxication-charge
claim, which had been raised on direct appeal, was procedurally
defaulted as well. Matchett replied that he had "cause" for any
procedural default because the performance of his attorney during
his first state post-conviction proceeding was ineffective, in that
counsel failed to raise the ineffective-assistance claims during
that proceeding.
The district court issued a memorandum and order granting the
respondent's summary-judgment motion and dismissing Matchett's 28
U.S.C. § 2254 application. The court concluded that all of
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Matchett's ineffective-assistance claims were procedurally
defaulted and that Matchett's assertion that counsel performed
ineffectively during his first state post-conviction proceeding did
not qualify as "cause" to excuse such default. The court also
concluded that the intoxication-charge claim was procedurally
defaulted. Matchett now seeks a COA from us.
II.
ANALYSIS
A. COA standard
A COA may issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). "The COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a general
assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). This threshold inquiry does not require a showing that
the appeal will succeed. Id. at 337. When a district court has
denied relief on nonconstitutional grounds, as with its
procedural-default ruling here, the petitioner must show "that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling." Slack v. McDaniel,
529 U.S. 473, 484 (2000). In death-penalty cases, "`any doubts as
to whether a COA should [be] issue[d] must be resolved in [the
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petitioner's] favor.'" Bigby v. Cockrell, 340 F.3d 259, 265-66
(5th Cir. 2003) (citation omitted).
B. Abandoned claims
In the brief filed in support of his COA application, Matchett
does not pursue either his claim that counsel performed
ineffectively by failing to object to Dr. Quijano's testimony or
his claim that the trial court gave an improper instruction with
respect to cocaine intoxication. We deem these claims abandoned.
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see FED.
R. APP. P. 28(a)(9). Neither does Matchett challenge the district
court's ruling that these two claims were procedurally defaulted.
This is the equivalent of his not having appealed the district
court's judgment on these claims. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
C. Remaining Claims
Matchett does continue to assert his substantive claims that
trial counsel performed ineffectively by advising him to plead
guilty and by failing to investigate and present a complete
mitigation defense at the punishment phase. He acknowledges that
these claims were not presented to the state courts prior to their
inclusion in his second state post-conviction application; that the
Texas Court of Criminal Appeals found that application to be an
abuse of the writ; and that the federal district court therefore
found the claims to be procedurally defaulted. Matchett does not
explicitly dispute the district court's conclusion that the
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allegedly ineffective assistance of his appointed attorney during
his first state post-conviction proceeding was not "cause" to
excuse such procedural default. Rather, Matchett emphasizes that
Texas provides a statutory right to post-conviction counsel for
death-row inmates.
The procedural-default doctrine precludes federal habeas
review when the last reasoned state-court opinion addressing a
claim explicitly rejects it on a state procedural ground. Ylst v.
Nunnemaker, 501 U.S. 797, 801, 803 (1991). When the state court
relies on an independent and adequate state procedural rule,
federal habeas review is barred unless the petitioner demonstrates
either cause and prejudice or that a failure to address the claim
will result in a fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). We have held that Texas's
abuse-of-the-writ rule is ordinarily an "adequate and independent"
procedural ground on which to base a procedural-default ruling.
Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003),
cert. denied, 124 S. Ct. 1170 (2004); Barrientes v. Johnson, 221
F.3d 741, 758-61 (5th Cir. 2000).
"Cause is defined as `something external to the petitioner,
something that cannot fairly be attributed to him' that impedes his
efforts to comply with the [state] procedural rule." Moore v.
Roberts, 83 F.3d 699, 704 (5th Cir. 1996) (citing Coleman, 501 U.S.
at 753). "Cause" factors may include interference by officials
that makes compliance with the procedural rule impracticable, a
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showing that the factual or legal basis for the claim was not
reasonably available to counsel, and ineffective assistance of
counsel--in the constitutional sense--on direct appeal. Murray v.
Carrier, 477 U.S. 478, 488 (1986). If a petitioner fails to
demonstrate cause, the court need not consider whether there is
actual prejudice. 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. Martinez, 255 F.3d at 239 (citing Coleman,
501 U.S. at 752); see Coleman, 501 U.S. at 757 ("Because
[petitioner] had no right to counsel to pursue his appeal in state
habeas, any attorney error that led to the default of
[petitioner's] claims in state court cannot constitute cause to
excuse the default in federal habeas."). Contrary to Matchett's
suggestion, a state prisoner may not cite the ineffective
assistance of state habeas counsel as "cause" for a procedural
default even for "cases involving constitutional claims that can
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only be raised for the first time in state post-conviction
proceedings." Martinez, 255 F.3d at 240.
Finally, on at least two occasions, we have rejected
contentions like Matchett's that Texas's statutory provision of
post-conviction counsel to death-row offenders requires that the
post-conviction process must comply with the Due Process Clause.
Ogan v. Cockrell, 297 F.3d 349, 357 (5th Cir.), cert. denied, 537
U.S. 1040 (2002); In re Goff, 250 F.3d 273, 275-76 (5th Cir. 2001)
(addressing motion by death-row offender to file successive 28
U.S.C. § 2254 habeas application).1
III
CONCLUSION
Matchett has failed to demonstrate that jurists of reason
would find it debatable that the district court erred in ruling
that his substantive claims were procedurally defaulted.
See Slack, 529 U.S. at 484. Accordingly, Matchett's application
for a COA is
1 Matchett cites Welch v. Beto, 355 F.2d 1016, 1020 (5th Cir.
1966), for the proposition that the invocation of "`Texas statutes
granting post-conviction hearings'" gives a federal habeas
petitioner "`the right to be tried according to the substantive and
procedural due process requirements of the Fourteenth Amendment.'"
In Goff, we stated that Welch had been overruled by the Supreme
Court insofar as Welch implied that Texas post-conviction
applicants had a due-process right to effective assistance of
counsel, re-emphasizing that "ineffective assistance of counsel in
a post-conviction proceeding cannot serve as cause to excuse
procedural default in a federal habeas proceeding." Goff, 250 F.3d
at 276.
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DENIED.
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