                                  REVISED
                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,   see

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.      See   Lindh   v.    Murphy,

No. 96-6298, 65 U.S.L.W. 4557 (U.S. June 23, 1997).                        As the

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 requested 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 deficient

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.                  See Blankenship v. Texas,

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

     Unbeknownst to Blankenship, Lantrip had 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 district attorney and the state


                                        2
prosecuting attorney filed petitions with the Texas Court of

Criminal Appeals seeking discretionary review of the reversal.

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 of 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.”     Blankenship v. Texas, 785 S.W.2d 158, 160 (Tex. Crim.

App. 1990) (en banc).

      Blankenship had no knowledge of these events.            It came as a

considerable shock to him when, some fifteen months after the

reversal of his 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 corpus petition, which was

denied on June 24, 1994.1      He then filed the instant federal habeas

     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
                                                             (continued...)

                                      3
petition, alleging that he was denied effective assistance of

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 new

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.    See 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.             See 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.


(...continued)
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).

                                      4
      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 “to

apply the amendments to chapter 153 only to such cases as were

filed     after   the   statute’s     enactment.”         Lindh   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.     See 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 de novo.              See 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.



        2
           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. See 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. See Green,
1997 WL 359070, at *3.

                                       5
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,

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. See Collins v. Youngblood,

497 U.S. 37, 41 (1990).          The state also may waive the Teague bar

implicitly by failing to raise it.           See 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 advising Blankenship of his right to

further appellate review.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




       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.

                                        6
announced after his conviction became final.”4

       The state, however, never asserted Teague against the claim

that   Blankenship     had   a   right       to   counsel   on   state-requested

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 the Teague defense implicitly, we

nonetheless have the discretion to apply it.                     See Caspari v.



       4
          Before the district court, the state did not even raise Teague in
opposition to a Jarrett claim. The only mention of Teague was a statement like
the one reported above.
     5
       See FED. R. APP. 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 court will not
consider an issue that was not briefed under standards of rule 28).

                                         7
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.      See SUP.

CT. R. 13.1.    Upon motion, and for good cause shown, the Circuit

Justice could have extended this deadline until August 31.        See

SUP. CT. R. 13.2, 493 U.S. 1109 (1989) (repealed 1995).   During that

time, 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 state-

requested discretionary review.       So, under the circumstances, we

will not exercise our discretion to consider the Teague bar that

the 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.      See 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


                                  8
the discretionary review.

     For 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.                      See United

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 successful 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.

     Furthermore,       if     the    state     felt     it   was     likely    that

discretionary review would be granted on its petition, 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 offered only a four-page brief on direct appeal.

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

briefs    totaling     some    sixteen      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.”


                                         9
Douglas, 372 U.S. at 357.          In the instant case, Blankenship was

without counsel the only time the merits of his only appeal were

decided against him.

       Now    considering   this   question    unfettered     by   statutorily-

mandated deference, we find that the arguments in favor of a right

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 Criminal

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.        See Evitts v. Lucey, 469 U.S. 387, 397 (1985)

(holding 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 finding of ineffective assistance requires a finding

that    (1)    counsel’s    performance     was   deficient    and   (2)   that

deficiency prejudiced the defendant. See Strickland v. Washington,

466 U.S. 668, 687 (1984).          Prejudice is presumed when counsel is


        6
          We address 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.

                                       10
denied completely, either actually or constructively.7

      Lantrip did nothing whatsoever in the review by the Court of

Criminal Appeals.        Thus, constructively, Blankenship was denied

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

did not withdraw8 but failed to raise any issues on appeal,

assistance of counsel 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.      See 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 of 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

          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).
      8
         Under Texas law, Lantrip remained Blankenship’s attorney. See TEX. CODE
CRIM. PROC. ANN. art. 26.04(a) (Vernon 1989) (“An attorney appointed under this
subsection 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 TEX. DISCIPLINARY R. PROF’L
CONDUCT 1.15(d), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A
(Vernon Supp. 1997) (TEX. STATE BAR R. art. X, § 9) (“Upon termination 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
state-requested discretionary appeal.



                               VI.

     The proper remedy for this constitutional violation is the

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.




                                12
