                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                     ____________________________

                             No. 98-40881
                     ____________________________

STEVIE DON JACKSON,
                                                         Petitioner-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 18, 2000
Before WIENER and STEWART, Circuit Judges, and LITTLE,* District
Judge.

WIENER, Circuit Judge:

     Petitioner-Appellant        Stevie   Don    Jackson    was    convicted    of

aggravated assaulted in Texas state court.               After his application

for a federal writ of habeas corpus was denied by the district

court, we granted a certificate of appealability on the issue

“whether Jackson’s attorney rendered ineffective assistance of

counsel because he failed to file a timely motion for rehearing

from Jackson’s first appeal of right.” Concluding that the failure

of   Jackson’s    counsel   to    file    a     motion    for     rehearing    or,



*
     District Judge of the Western District of Louisiana, sitting
by designation.
alternately, to inform him of his right to file such a motion pro

se did not constitute denial of the Sixth Amendment’s guarantee of

the right to effective counsel, we affirm the district court’s

denial of Jackson’s application for habeas relief.


                                I
             Implicit Wavier of Teague by the State

     The retroactivity principle established by the Supreme Court

in Teague v. Lane1 “prevents a federal court from granting habeas

relief to a state prisoner based on a rule announced after his

conviction and sentence became final.”2     In this case, Texas

implicitly waived a Teague defense to Jackson’s habeas petition by

failing to raise the issue in the district court.     Nevertheless,

for the first time on appeal Texas urges us to apply Teague to

Jackson’s petition. We conclude that, absent compelling reasons to

the contrary, a federal court should apply Teague even when it has

been implicitly waived by the State.

     A federal court has the power to consider a Teague defense

even when it has not been advanced by the State.3      We have been

confronted with the issue whether to apply Teague despite the

State’s failure to argue it at least three times.    On one of those

occasions we exercised our discretion to apply Teague “because it


1
     489 U.S. 288 (1989).
2
     Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
3
     Id.

                                2
was   the   primary    reason    given    by   the     district    court    for   its

judgment”4 and on another we did so “in the interests of finality

and judicial economy.”5          On the one occasion that we declined to

exercise our discretion to apply Teague, we did so because, in

light of a number of extraordinary circumstances, “it was not

possible for     [the       defendant]    to   raise    [his    claim]    on   direct

appeal.”6    Even though these decisions clearly reaffirm our power

to raise Teague sua sponte, they provide little explanation and

thus little guidance concerning the circumstances under which the

discretionary post-waiver application of Teague is proper.

      The    retroactivity       principle      established       in     Teague   was

motivated in the first instance by concerns about the evenhanded

and uniform application of justice.              Teague held that “new rules

should always be applied retroactively to cases on direct review,

but that generally they should not be applied retroactively to

criminal cases on collateral review.”7               The Court recognized that

because     direct    and    collateral    review      play    markedly    different

institutional roles within our system of justice, each involves



4
      Wilkerson v. Whitley, 28 F.3d 498, 504 (5th Cir. 1994) (en
banc) (Teague defense implicitly waived by State on appeal).
5
      Fisher v. State of Texas, 169 F.3d 295, 305 (5th Cir. 1999).
6
      Blankenship v. Johnson, 118 F.3d 312, 317 (5th Cir. 1997).
7
       489 U.S. at 303 (emphasis added); see also Griffith v.
Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly
declared constitutional rule to criminal cases pending on direct
review violates basic norms of constitutional adjudication”).

                                          3
different fairness and policy concerns.          The Court determined the

appropriate   retroactivity   rule       for   each   type   of   review   “by

focusing, in the first instance, on the nature, function, and scope

of the adjudicatory process in which [each] arise[s].”8            The Court




8
     Id at 306-07.

                                     4
emphasized     above     all   else     the   importance    of      applying   the

retroactivity rules uniformly and consistently within each class of

appeals, so as to avoid an unjust “disparity in the treatment of

similarly situated defendants.”9

     The Teague court’s conclusion that new constitutional rules

should not be applied retroactively on habeas review was grounded

in concerns about finality and comity that uniquely arise in the

context of collateral attack on a state court’s final judgment of

conviction.10     Comity concerns are invoked to prevent federal

interference     in    matters    of     vital   concern     to     the   states;

accordingly,     rules     that   are     created   to     foster     comity   are

traditionally made waivable by the states on a case-by-case basis.11

9
      Id at 303-05 (deploring the “unequal treatment of those who
were similarly situated” under the retroactivity rules applied by
the Court prior to Teague and noting that the “selective
application of new rules violates the principle of treating
similarly situated defendants the same.”).
10
          “The costs imposed upon the States by a retroactive
application of new rules of constitutional law on habeas corpus
generally far outweighs the benefits of this application. In many
ways the application of new rules to cases on collateral review may
be more intrusive than the enjoining of criminal prosecutions, for
it continually forces the States to marshal resources in order to
keep in prison defendants whose trials and appeals conformed to
then-existing constitutional standards.” Id at 310 (quotations,
citations and punctuation omitted). Moreover, “[a]pplication of
constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality which
is essential to the operation of our criminal justice system.” Id
at 309.
11
      See, e.g., Florida Prepaid Postsecondary Ed. Expense Bd v.
College Savings Bank, 527 U.S. 627, __, 119 S.Ct. 2199, 2204
(noting the ability of states to waive Eleventh Amendment
immunity).

                                         5
Concerns   about   the   finality   of   judgments    and   the   evenhanded

application of justice, however, are invoked for the purpose of

protecting the philosophical and moral foundations of our entire

judicial system. Every state ought to be concerned with preserving

those foundations, but the interests in question are not unique to

any particular state and therefore are not properly entrusted to

the keeping of the states on a case-by-case basis.

     Teague recognized that treating similarly situated defendants

differently exacts an unavoidable moral cost on our judicial

system.    Teague’s goal of achieving the uniform dispensation of

justice cannot be achieved, however, unless the courts take it on

themselves to apply a single retroactivity standard uniformly.

Thus, the Teague nonretroactivity rule is not an affirmative

defense in the traditional sense of that term; rather, it is a

vehicle for the vindication of a fundamental principle of justice.

The Supreme Court acknowledged as much in Caspari when it ruled

that federal courts may raise the Teague rule sua sponte.12               As

Teague was designed to replace a discretionary and consequently

inconsistent   standard     for     retroactive      application    of   new

constitutional rules on habeas review, its entire purpose would be

defeated if its post-waiver application were left entirely to the

unfettered discretion of the courts.           An easily administrable

standard is required if the evenhanded application of justice is to


12
      510 U.S. at 389.

                                     6
be ensured.       We conclude therefore that, absent a compelling,

competing interest of justice in a particular case, a federal court

should apply Teague even though the State has failed to argue it.

Fundamental principles of fairness are not the states’ to waive.

      Finding no compelling, competing interest of justice in the

instant case, we subject Jackson’s appeal to a Teague analysis sua

sponte.


                                      II
                               Teague Analysis

      “In determining whether a state prisoner is entitled to habeas

relief, a federal court should apply Teague by proceeding in three

steps.”13

              First, we must determine when [Jackson’s]
              conviction and sentence became final for
              Teague purposes. Second, we must survey the
              legal landscape as it then existed and
              determine whether a state court considering
              the defendant’s claim at the time his
              conviction became final would have felt
              compelled by existing precedent to conclude
              that the rule he seeks was required by the
              Constitution.   Third, if we determine that
              [Jackson] seeks the benefit of a new rule, we
              must consider whether that rule falls within
              one of the two narrow exceptions to the
              nonretroactivity principle.14

      Jackson did not file a petition for discretionary review with

the   Texas    Court   of   Criminal   Appeals   or   a   timely   motion   for

rehearing with the Texas Court of Appeal.             Jackson’s conviction

13
       Id at 390.
14
       Fisher, 169 F.3d at 305 (citing Caspari, 510 U.S. at 390).

                                       7
therefore became final in May of 1996, after the times for filing

those pleadings elapsed.

     “Unless reasonable jurists hearing petitioner’s claim at the

time his conviction became final would have felt compelled by

existing precedent to rule in his favor, we are barred from doing

so now.”15   It is clear that the precedent existing in 1996 did not

dictate a ruling in Jackson’s favor.     Jackson asks us to hold that

assistance    provided   by   a   criminal   defendant’s   attorney   is

ineffective per se when he fails either to file timely a motion for

rehearing or to inform the defendant of his right to file such a

motion pro se.       Jackson cites no authority in support of this

proposition, but instead asks us to extend to the very different

context of a motion for rehearing, the well-established rule that

a criminal defendant has a right to representation on his first

appeal of right.16

     At first blush a motion for rehearing appears to be quite

similar to a petition for discretionary appeal, and it was well

settled at the time that Jackson’s conviction became final that a

criminal defendant has no Sixth Amendment right to representation

on a discretionary appeal.17      Thus, although Jackson does make a

colorable argument that his opportunity to file a motion for


15
      Id (citing Graham v. Collins, 506 U.S. 461, 467 (1993).
16
      Evitts v. Lucey, 469 U.S. 387, 393-94 (1985).
17
      Ross v. Moffitt, 417 U.S. 600 (1974).

                                    8
rehearing should be considered the last step in his first appeal of

right, a holding to that effect would surely create a new rule of

constitutional law.       Thus, unless Jackson’s petition for a writ of

habeas corpus meets one of the narrow exceptions to the Teague

rule, we are barred by Teague from considering his claim.

     “Teague provides that a new constitutional rule can apply

retroactively on federal collateral review only if the new rule (1)

puts certain kinds of primary, private conduct beyond the power of

the criminal law-making authority to proscribe or (2) is a rule of

procedure that is implicit in the concept of ordered liberty.”18

The second Teague exception “is reserved for watershed rules of

criminal procedure that implicate the fundamental fairness and

accuracy of the proceeding.”19      The new constitutional rule Jackson

asks us to recognize obviously fails to qualify for either of these

exceptions.      Nevertheless,     we       conclude    that    a    third    narrow

exception   to   Teague,    heretofore       unrecognized       by   the     courts,

justifies our deeper consideration of Jackson’s claim.

     When   an   alleged    constitutional        right    is   susceptible       of

vindication only on habeas review, application of Teague to bar

full consideration of the claim would effectively foreclose any

opportunity   for   the    right   ever     to   be    recognized.      Jackson’s

petition asserts just such a right:              A state criminal defendant


18
      Fisher, 169 F.3d at 306 (quotations omitted).
19
      Id (citation omitted).

                                        9
could never raise a claim on direct appeal that he had been denied

effective assistance of counsel by his appellate attorney’s failure

to file a timely motion for rehearing.           If a criminal defendant

were to raise such a claim on direct appeal from the judgment of an

intermediate court of appeals, the only relief to which he could

possibly be entitled would be reconsideration of that court’s

decision.    But by agreeing to hear the defendant’s direct appeal,

a higher court would already have granted the defendant precisely

that relief.    Thus, the very act of the higher court in accepting

the defendant’s direct would render the defendant’s ineffective

assistance of counsel claim moot, foreclosing any opportunity for

the defendant’s Sixth Amendment right to counsel ever to be passed

upon.20

     Because the constitutional question presented by Jackson could

be raised only on collateral review, we are obliged to give serious

consideration to the merits of Jackson’s claim.          We now proceed to

do so.


                                  III
            The Right to Counsel on a Motion for Rehearing

     Jackson    asks   us   to   hold    that   he   received   ineffective

assistance of counsel on direct appeal because his attorney failed

20
      See Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355, 1358
(5th Cir. 1976) (“An actual case or controversy must exist, of
course, when a suit is instituted and at all stages of appellate
review in order to avoid mootness.”); Dresser Industries, Inc. v.
United States, 596 F.2d 1231 (5th Cir. 1979) (case becomes moot on
appeal once appellant has received all of the relief requested).

                                    10
(1) to file a motion for rehearing or, alternately, (2) to inform

Jackson of his right to file such motion pro se.                 Jackson cannot

have received constitutionally deficient counsel on his motion for

rehearing, however, if he had no constitutional right to counsel

for purposes of filing a rehearing motion.21            “A criminal defendant

does    not   have   a   constitutional      right     to   counsel   to   pursue

discretionary state appeals.”22           When a state grants a criminal

defendant an appeal of right, the Constitution requires only that

the defendant’s claims be “once... presented by a lawyer and passed

upon by an appellate court.”23 Not only does a motion for rehearing

come after the appellate court has passed on the claims; there can

be no question that the granting of a motion for rehearing lies

entirely within the discretion of a court of appeals. Rehearing at

that point is by no means an appeal of right.

       We conclude that a criminal defendant has no constitutional

right   to    counsel    on   matters   related   to    filing   a    motion   for

rehearing following the disposition of his case on direct appeal.

We therefore affirm the district court’s denial of Jackson’s

application for a writ of habeas corpus.

AFFIRMED

21
       See Wainright v. Torna, 455 U.S. 586, 587-88 (per curiam)
(1982) (“Since respondent had no constitutional right to counsel,
he could not be deprived of the effective assistance of counsel by
his retained counsel’s failure to file the application timely.”).
22
        Id at 587 (citing Ross v. Moffitt, 417 U.S. 600 (1974).
23
        Ross, 417 U.S. at 614.

                                        11
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