                     REVISED - September 22, 2000

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                         ____________________

                             No. 99-20976
                         ____________________


     ALVIN URIAL GOODWIN III

                                     Petitioner - Appellant

     v.

     GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
     JUSTICE, INSTITUTIONAL DIVISION

                                     Respondent - Appellee

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

                           August 17, 2000

Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

KING, Chief Judge:

     Petitioner-Appellant Alvin Urial Goodwin III, a Texas death-

row inmate, appeals from the district court’s denial of his

application for a writ of habeas corpus, arguing that the lower

court’s finding that he had not invoked his right to counsel

before confessing to the crime of which he was convicted is

clearly erroneous.    He also requests that we revisit an

ineffective-assistance-of-counsel claim in light of the Supreme

Court’s intervening decision in Williams v. Taylor, 120 S. Ct.

1495 (2000).   We decide that the lower court’s finding is not
clearly erroneous and deny Goodwin’s request to revisit the

ineffective-assistance-of-counsel claim.     As a result, we affirm

the judgment of the district court.



               I.    FACTUAL AND PROCEDURAL BACKGROUND

     This is an appeal from a judgment entered after remand.

Petitioner-Appellant Alvin Urial Goodwin III (“Goodwin”) argued

in his first appeal that the district court erred in failing to

conduct an evidentiary hearing on his claim that admission of his

confessions violated the U.S. Constitution as those confessions

were obtained after he had invoked his Fifth Amendment right to

counsel.   We held in Goodwin v. Johnson, 132 F.3d 162 (5th Cir.

1998), that Goodwin was entitled to an evidentiary hearing to

resolve a factual dispute underlying his Fifth Amendment claim.

See id. at 185.     The district court has conducted that hearing,

issued its findings, and entered judgment denying habeas relief.

Having described much of the factual background of this case

before, see id. at 167-68, we concentrate here only on those

aspects relevant to the issues Goodwin raises on this appeal.

     Suspecting they were involved in several burglaries and

attempted burglaries, Burlington, Iowa police officers arrested

Goodwin and Billy Dan Atkins, Jr. in the early morning hours of

Saturday, January 17, 1987 after they were observed approaching

numerous parked cars.     Goodwin, who was found with a loaded,

cocked weapon and a crowbar, was arrested for burglary and going


                                   2
armed with intent.    At the time he was arrested, Goodwin told

officers that his name was Bradley Douglas Murphy and that he did

not have a social security number.

     According to Goodwin’s 1994 affidavit, after he was taken to

the Burlington police station, he refused to sign a waiver of

rights form and to give a statement, and instead, requested an

attorney.   His affidavit states further that between the time he

requested an attorney and the time he was questioned by Texas law

enforcement officers on January 21, he was not asked any

incriminating questions.    Goodwin also states that during that

same period, he gave his real name and social security number,

and was taken before a judge who informed him of the identity of

his court-appointed attorney.

     Other evidence corroborates some of Goodwin’s affidavit.

Goodwin was taken before a judge twice between his arrest and his

questioning by Texas law enforcement officials.    On January 17,

1987, Goodwin appeared before a judge and requested a court-

appointed attorney.    After setting bond at $25,000, the judge

continued the matter until January 20, 1987, at which time he

appointed Alan Waples to be Goodwin’s counsel.    Goodwin’s

investigator discovered in September, 1998 a copy of form

entitled “Statement of Rights and Acknowledgment and Waiver.”

That document, which refers to Goodwin by the alias he had given,

shows that approximately an hour and a half after Goodwin was

arrested, Lieutenant Larry E. Walker of the Burlington Police


                                  3
Department presented Goodwin with a Statement of Rights form, on

which Goodwin’s rights to remain silent, to consult with an

attorney, and to have an attorney present during questioning were

set forth.    The document also shows that Goodwin refused to sign

below the acknowledgment and waiver of the rights paragraph.

     Iowa records do not indicate whether Goodwin was questioned

by Iowa police between January 17 and January 21.   An affidavit

from Lt. Walker indicates that if Goodwin refused to sign the

form, “no further conversation would have taken place.”     Iowa

records do indicate that on January 17, Atkins was presented with

a rights form at almost the exact time that Goodwin was.     Atkins

signed his acknowledgment and waiver of rights and was thereafter

questioned by Iowa officers regarding the Iowa burglaries.

Atkins was again questioned by Iowa officers on January 21, this

time with counsel present.   By January 21, Iowa officers had

twice obtained warrants and searched the residence that Goodwin

and Atkins shared.

     The morning of January 21, two law enforcement officers from

Texas interviewed Goodwin regarding the murder of Douglas

Tillerson.1   Goodwin was read his Miranda rights, and he

acknowledged that he understood them.   Officers described the

evidence that they had assembled (e.g., they had found

Tillerson’s body, they had the murder weapon, they had recovered



     1
        The officers had interviewed Atkins regarding Tillerson’s
murder the previous day.

                                  4
property taken from Tillerson’s home the night he disappeared)

and that they had a capital murder warrant for Atkins.    This

prompted Goodwin to state that he, Goodwin, was “on death row”

because he was the one who had pulled the trigger.

     Goodwin was then asked whether he wanted to make a

statement, and he responded that he did because he wanted to tell

what had happened.   Goodwin was again read his rights, at which

point he signed the waiver of rights form.    Thereafter, Goodwin

gave a video-taped confession.    Officers read Goodwin his rights

one more time at the conclusion of his video-taped statement.

Later on January 21, Goodwin was flown back to Texas in the

custody of the law enforcement officers.2    The next day, after

being brought before a magistrate, Goodwin was again read his

rights, and he again agreed to waive those rights.    Goodwin then

gave a written confession.    He subsequently also identified

property stolen from Tillerson and the gun used by Atkins during

the robbery and the murder.

     In Goodwin, we assessed whether the district court properly

granted summary judgment to Respondent-Appellee Gary L. Johnson

(hereinafter “the State”).    See 132 F.3d at 169.   We determined,

inter alia, that evidence in the record indicated the existence

of a genuine issue of material fact with respect to Goodwin’s

Fifth Amendment right-to-counsel claim.     See id. at 182 n.15.    In

     2
        Before departing Iowa, Goodwin, along with his counsel,
appeared before a judge and signed a waiver of extradition. The
Iowa burglary charges were dismissed.

                                  5
remanding for an evidentiary hearing on the question whether

Goodwin had invoked his Fifth Amendment right to counsel prior to

being interrogated by Texas law enforcement officials, we

explicitly stated that the hearing “should not be a wide-ranging

fishing expedition, but a brief adversarial hearing concerning a

discrete factual issue.”   Id. at 185   (internal quotation marks

and brackets omitted).

     The court below adhered to this directive.   After the

document indicating Goodwin’s refusal to sign a waiver was

discovered, and the parties had submitted the court-ordered joint

chronology of events and had completed their pre-hearing

investigation, Goodwin on December 9, 1998 filed a motion for

summary judgment.   Along with its opposition to this motion, the

State filed a motion to dismiss the petition under Rules

Governing Habeas Corpus Cases Under Section 2254 9(a), arguing

that Goodwin’s use of the waiver form is barred by the doctrine

of laches, and that his delay in presenting the form prejudiced

the State’s ability to respond to Goodwin’s claim.   The State

contended that the passage of time made it impossible to disprove

Goodwin’s assertions, as Lt. Walker now has no recollection of

any conversations with Goodwin and there is no alternative source

for such information.

     The district court denied Goodwin’s motion for summary

judgment, and ordered a video-taped deposition of Goodwin to take

place.   After completion of this deposition, the court heard oral


                                 6
argument on the evidence.    It ultimately found that Goodwin did

not invoke the right to counsel before he confessed to Texas law

enforcement officials in Iowa.    The court did not rule on the

State’s Rule 9(a) motion, but found that Goodwin’s delay in

raising the issue substantially prejudiced the State’s ability to

establish precisely the sequence of events.    Judgment denying

Goodwin’s application for habeas relief was entered October 18,

1999.    The district court also granted Goodwin a Certificate of

Probable Cause (“CPC”).    Goodwin timely appeals.



               II.   INVOCATION OF THE RIGHT TO COUNSEL

     We will not upset the district court’s findings unless we

find clear error.     See Blackmon v. Johnson, 145 F.3d 205, 208

(5th Cir. 1998), cert. denied, 526 U.S. 1021 (1999).      Goodwin

points to six pieces of evidence as supporting his contention

that the district court’s finding that he had not invoked his

Fifth Amendment right to counsel is clearly erroneous: (1) his

refusal to sign his waiver form;3 (2) the extensive investigation

     3
        The State argues that we should declare that Goodwin’s
use of this document to support his claim is barred by the
doctrine of laches, and contends that we should use Rule 9(a) as
a guide for our determination that the doctrine is applicable
here. In effect, the State appears to argue that the principles
underlying Rule 9(a) can be applied to “dismiss” individual
pieces of evidence from the record. It cites no supporting
authority for this argument.
     Although Rule 9(a) “codifies the equitable doctrine of
laches as applied to habeas corpus petitions,” Walters v. Scott,
21 F.3d 683, 686 (5th Cir. 1994), we decline to use principles
underlying the Rule in the fashion that the State advocates. As
the Supreme Court noted in Lonchar v. Thomas, 517 U.S. 314

                                   7
into the Iowa burglaries conducted by Iowa police officers; (3)

the interrogation of Atkins after he signed his waiver form; (4)

the cessation of Atkins’s interrogation shortly after he asserted

his right to counsel; (5) the absence of any indication that Iowa

police officers interrogated Goodwin; and (6) Goodwin’s

affidavit, video-taped deposition, and his chronology of events

evidently prepared for his trial attorney, each of which

indicates that he requested an attorney.   Goodwin asserts that

this evidence is uncontroverted and allows for only one

conclusion:   that he invoked his right to counsel before being

interrogated by Texas law enforcement officials.

     Because Goodwin’s claim is based on events that occurred

thirteen years ago, we must proceed cautiously.    As then Justice

Rehnquist stated, a federal court in our circumstances

     should not lose sight of the fact that it is the habeas
     applicant who has the burden of proving a
     constitutional violation, and that no system of justice
     which gives both society and a defendant their due is
     aided by attempting to reconstruct or re-evaluate
     events that took place decades ago, as if it were an
     archaeological expedition, rather than an exercise in
     the administration of justice.



(1996), Rule 9(a) deals directly with delay, see id. at 326, and
notably for our purposes here, does not mention the possibility
of eliminating from the record evidence that surfaces after an
evidentiary hearing has been ruled necessary. We are mindful of
the Court’s caution against ad hoc departures from the Habeas
Rules. See id. at 328-29. We also question how evidentiary
hearings could be used to provide petitioners with a full and
fair adjudication of their claims if the State could use Rule
9(a)’s principles to eliminate evidence discovered in preparation
for those hearings simply because the passage of time makes that
evidence difficult to refute.

                                 8
Engle v. Sims, 450 U.S. 936, 941-42 (1981) (Rehnquist, J.,

dissenting from the denial of a petition for certiorari)

(internal citations omitted); see also Tyler v. Beto, 391 F.2d

993, 995 (5th Cir. 1968) (noting that a petitioner in a habeas

corpus proceeding has the burden of proof to establish sufficient

facts to warrant a finding of denial of constitutional rights).

We have reviewed and considered the portions of the record

relevant to Goodwin’s Fifth Amendment claim, and cannot say that

we are “left with the definite and firm conviction that a mistake

has been committed.”    United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).

     In order for Goodwin’s confessions to be inadmissible,

Goodwin had to have affirmatively indicated to Iowa police

officers that he did not want to answer their questions without

an attorney present.4   See McNeil v. Wisconsin, 501 U.S. 171, 178

(1991) (“The rule of [Edwards v. Arizona, 451 U.S. 477 (1981)]

applies only when the suspect ‘ha[s] expressed’ his wish for the

particular sort of lawyerly assistance that is the subject of

Miranda.   It requires, at a minimum, some statement that can

reasonably be construed to be an expression of a desire for the



     4
        We note that in both his second state habeas petition and
his federal habeas petition, Goodwin argued that he invoked his
right to counsel when he requested a court-appointed attorney.
In both cases, Goodwin provided his 1994 affidavit in support of
his Fifth Amendment right-to-counsel claim. We rejected on
Goodwin’s first appeal the argument that his request for a court-
appointed attorney invoked Goodwin’s Fifth Amendment right to
counsel. See Goodwin, 132 F.3d at 179 n.14.

                                 9
assistance of an attorney in dealing with custodial interrogation

by the police.” (quoting Edwards, 451 U.S. at 484) (emphasis

added in McNeil)).     A refusal to sign a waiver form is

insufficient to show invocation of one’s Fifth Amendment right to

counsel.   See United States v. Chapa-Garza, 62 F.3d 118, 122 (5th

Cir. 1995); United States v. McDaniel, 463 F.2d 129, 135 (5th

Cir. 1972).    “A refusal to sign a waiver may indicate nothing

more than a reluctance to put pen to paper under the circumstance

of custody.”    Id.

     Given the circumstances, the reason for Goodwin’s refusal to

sign the waiver form is not apparent.    The paragraph he refused

to sign contained not only language dealing with making a

statement without counsel present, but also language stating that

he fully understood what his rights were, that he was ready and

willing to answer questions, that he waived his right to remain

silent, that he was given no promises or threats, and that no

persuasion or coercion had been used against him.    The form

showed the name Goodwin had given as an alias rather than

Goodwin’s real name.    Moreover, Goodwin had been arrested at the

same time as Atkins.    Given this, he had no incentive to talk

with police until he learned whether Atkins was talking with

them.

     Other evidence is equally ambiguous.    Goodwin relies on the

fact that Iowa police did not interrogate him for four days,

arguing that this demonstrates that Iowa police officers adhered


                                  10
to his invocation of counsel.    One of Lt. Walker’s affidavits

indicates that a refusal to sign the form would have led to there

being no interrogation.    Although this would appear to support

Goodwin’s contention that he had invoked his right to counsel,

the actions of Iowa police officers in questioning Atkins tend to

negate this inference.    When Atkins clearly stated that he did

not wish to discuss particular topics without an attorney

present, that statement did not prevent police officers from

again questioning Atkins regarding those topics.    Thus, the

evidence also supports the conclusion that Iowa police did not

interrogate Goodwin on January 17 simply because he refused to

sign the waiver form and refused to talk.

     Goodwin asserts that because Iowa police were actively

investigating the burglaries Goodwin and Atkins were suspected of

committing, their failure to interrogate Goodwin over a four-day

period demonstrates he had invoked his right to counsel.    Again,

although such a conclusion is possible, it is not mandated by the

evidence.   At this stage, any number of possible reasons, each

perfectly consistent with normal police procedure, can be given

for why Goodwin was not interrogated.    For example, the record

provides the district court with ample support for the conclusion

that police were occupied with obtaining physical evidence of

Goodwin’s and Atkins’s involvement in the burglaries they were

suspected of committing.

     As Goodwin acknowledges, much of the evidence he relies upon


                                 11
is circumstantial.    His own descriptions of the events at the

time are the sole forms of direct evidence.    Here, it is apparent

that the district court made a credibility determination, and

concluded that Goodwin’s statements could not be given much, if

any, weight.    It was entitled to do so.   See Tyler, 391 F.2d at

995 (“Credibility is for the trier of facts and the

uncontradicted testimony of a witness does not have to be

accepted.” (citing Hawk v. Olson, 326 U.S. 271, 278 (1945))).

Under the Federal Rules, we must give “due regard . . . to the

opportunity of the trial court to judge of the credibility of the

witnesses.”    FED. R. CIV. P. 52(a); see also Coury v. Prot, 85

F.3d 244, 254 (5th Cir. 1996) (“The burden of showing that the

findings of the district court are clearly erroneous is heavier

if the credibility of witnesses is a factor in the trial court’s

decision.”).    Thus, we cannot lightly reverse the district

court’s determination.    The record provides us with little reason

to do so.   Taking into consideration each of Goodwin’s

descriptions of the relevant events in Iowa that are contained in

the record, and the fact that those descriptions vary in

significant respects, we are left with the conclusion that the

district court’s finding is not clearly erroneous.



               III.   INEFFECTIVE ASSISTANCE OF COUNSEL

     In addition to reviewing the district court’s factual

findings, Goodwin argues that we should revisit an ineffective-


                                  12
assistance-of-counsel claim this panel decided in Goodwin and

should order that he be given a new direct appeal.    In Goodwin,

we relied on controlling circuit precedent and portions of the

Supreme Court’s reasoning in Lockhart v. Fretwell, 506 U.S. 364

(1993), to hold that Goodwin was not entitled to relief on his

claim that his counsel on direct appeal was constitutionally

ineffective because he had failed to challenge the trial court’s

refusal to modify its Texas Code of Criminal Procedure art. 38.23

instruction in the manner Goodwin requested.   See Goodwin, 132

F.3d at 174.   According to Goodwin, we may revisit this issue by

recognizing the applicability of an exception to the law-of-the-

case doctrine.

     Under the law-of-the-case doctrine, “an appellate court’s

decision of a legal issue, whether explicitly or by necessary

implication, establishes the law of the case and must be followed

in all subsequent proceedings in the same case.”     Carnival

Leisure Indus., Ltd. v. Aubin, 53 F.3d 716, 718-19 (5th Cir.

1995).   Because Goodwin requests that we reconsider our own

decision, application of this doctrine is discretionary.        See

Perillo v. Johnson, 205 F.3d 775, 780-81 (5th Cir. 2000).       In

general, the doctrine will be applied, and a request to revisit a

prior decision will be declined, unless “(i) the evidence on a

subsequent trial was substantially different, (ii) controlling

authority has since made a contrary decision of the law

applicable to such issues, or (iii) the decision was clearly


                                13
erroneous and would work . . . manifest injustice.”     Free v.

Abbott Lab., Inc., 164 F.3d 270, 272 (5th Cir. 1999) (internal

quotation marks omitted).

     Goodwin argues that the second exception applies here.       He

contends that the Supreme Court’s decision in Williams v. Taylor,

120 S. Ct. 1495 (2000), effectively rejected the analysis we

conducted in Goodwin, and that application of the proper analysis

would result in our reaching a different conclusion.5    As a

result, Goodwin further asserts that failure to revisit his

ineffective-assistance-of-counsel claim “would work a manifest

injustice.”   Agostini v. Felton, 521 U.S. 203, 236 (1997)

(internal quotation marks omitted).   Given the procedural posture

of this case, however, we must first assess whether our ability

to reconsider Goodwin’s ineffective-assistance-of-counsel claim

is foreclosed by the language of the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214, and by the Supreme Court’s habeas jurisprudence.

     Our decision in Goodwin vacated only that portion of the

district court’s judgment that dealt with Goodwin’s Fifth

Amendment right-to-counsel claim and otherwise affirmed that

judgment.   See Goodwin, 132 F.3d at 192.   Goodwin is before us

     5
        The Supreme Court’s decision in Williams was announced
after the district court issued its judgment with respect to
Goodwin’s Fifth Amendment claim. Thus, this is the first time
Goodwin presents his argument that the Supreme Court’s Williams
decision makes applicable an exception to the law-of-the-case
doctrine and allows his ineffective-assistance-of-counsel claim
to be revisited.

                                14
because the district court, on remand, again denied his

application for a writ of habeas corpus but also granted a CPC.

Under the Supreme Court’s opinion in Slack v. McDaniel, if a

petitioner initiates an appeal after the effective date of AEDPA,

the right to appeal is governed by the provisions of that law.

See 120 S. Ct. 1595, 1598 (2000).    Goodwin filed his notice of

appeal on October 8, 1999.   The effect of Slack is that despite

the district court’s grant of a CPC, we have before us an appeal

that is governed by AEDPA’s § 2253.    We therefore treat the CPC

granted by the district court as a Certificate of Appealability

(“COA”) limited to the Fifth Amendment issue that was before that

court.   See Muniz v. Johnson, 114 F.3d 43, 45 n.1 (5th Cir. 1997)

(noting that if we are confronted with a CPC in a case covered by

AEDPA’s § 2253(c)(3), we do not remand to the district court for

a specification of the issues the CPC/COA covers when only one

issue was before that court); City Pub. Serv. Bd. v. General

Electric Co., 935 F.2d 78, 82 (5th Cir. 1991) (“The district

court must comply with the appellate court’s mandate without

variance. Previously, this Court disposed of the City’s

negligence claims and remanded this case on the specific and

narrow grounds of the implied warranty claim.    The limited scope

of remand precluded consideration of any other claims.” (internal

citations omitted)).

     The operation of AEDPA’s § 2253 threatens Goodwin’s ability

to rely on exceptions to the law-of-the-case doctrine to have his


                                15
ineffective-assistance-of-counsel claim revisited.        As a general

matter, parties or courts typically rely on the law-of-the-case

doctrine to prevent reassessment of issues already decided.

Thus, a prior decision controls a court’s subsequent analysis.             A

decision on the applicability of the doctrine, however,

presupposes that an issue controlled by the prior holding is

properly before the court.     Here, only one issue related to

Goodwin’s petition is properly before us — the Fifth Amendment

issue disposed of above.     We do not have jurisdiction over any

other ground for habeas relief.6

      To consider Goodwin’s ineffective-assistance-of-counsel

claim, we must identify a means of asserting jurisdiction over

it.   An individual seeking to avoid the effects of an appellate

court’s prior decision may bring to that court a motion to recall

its mandate.   See 18 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE

§ 134.23[3], at 134-60 (3d ed. 2000); 16 CHARLES ALAN WRIGHT,     ET AL.

FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2D § 3938, at 719 (1992).

Due to the circumstances of this case and the nature of Goodwin’s

request, we consider that request as such a motion.

      6
        Interpreting Goodwin’s request as an application for a
COA does not help him. In general, before we may consider a
petitioner’s application for a COA on a particular issue, that
petitioner must first submit his request to the district court
and have that request denied. See, e.g., Sonnier v. Johnson, 161
F.3d 941, 946 (5th Cir. 1998) (“Compliance with the COA
requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the
lack of a ruling on a COA in the district court causes this court
to be without jurisdiction to consider the appeal.”). Without a
ruling on whether a petitioner is entitled to a COA that covers a
specific issue, we would dismiss without prejudice.

                                   16
     The Supreme Court has recognized that courts of appeals have

an inherent power to recall their mandates, the exercise of which

is subject to review for abuse of discretion.     See Calderon v.

Thompson, 523 U.S. 538, 549 (1998).    The issue before the

Thompson Court was whether the United States Court of Appeals for

the Ninth Circuit abused its discretion in recalling its mandate

denying habeas relief to a § 2254 petitioner.    The Court

determined that whether a recall of a mandate was proper under

the circumstances must be evaluated “not only against standards

of general application, but also against the statutory and

jurisprudential limits applicable in habeas corpus cases.”      Id.

at 553.

     The Court noted that “[i]n a § 2254 case, a prisoner’s

motion to recall the mandate on the basis of the merits of the

underlying decision can be regarded as a second or successive

application for purposes of § 2244(b).”    Id.   Where a

petitioner’s first application for habeas relief has been denied,

treating a prisoner’s motion to recall the court’s mandate as a

successive application is necessary to prevent petitioners from

evading AEDPA’s bars against relitigation of previously

considered claims and against litigation of claims not presented

in a first application.7   See id.   Even where a decision to

     7
        Thus, had we not remanded in Goodwin, and instead
disposed of all of the claims Goodwin raised in his first
petition for habeas relief, we would be required under Thompson
to treat his motion to recall our mandate as a successive
petition governed by § 2244(b).

                                17
recall a mandate is not based on a prisoner’s second or

successive application for relief, “a court of appeals must

exercise its discretion in a manner consistent with the objects

of [AEDPA].   In a habeas case, moreover, the court must be guided

by the general principles underlying our habeas corpus

jurisprudence.”   Id. at 554.8

     The Thompson Court determined that the Ninth Circuit acted

sua sponte on the basis of the petitioner’s first application for

habeas relief and thus that the court was not faced with a

successive petition.   See id.   As a result, the Court had

occasion to elucidate the habeas principles applicable to an

appeals court’s decision whether to recall its mandate under the

circumstances before it.    Among those principles was the respect

accorded to the State’s interest in the finality of convictions.

See id. at 555-56.   Concerning itself with cases where “a court

of appeals recalls its mandate to revisit the merits of its

earlier decision denying habeas relief,” the Court noted that in

such cases, the State’s interests in finality “are all but

paramount.”   Id. at 557.   The Court concluded that “[i]n the

absence of a strong showing of ‘actua[l] innocen[ce],’ the

State’s interests in actual finality outweigh the prisoner’s

interest in obtaining yet another opportunity for review.”       Id.

(citation omitted) (alterations in original).   The Court held

     8
        Significantly for the case before us, the Supreme Court
looked to AEPDA’s provisions despite its finding that the law did
not apply to the case before it. See 523 U.S. at 554.

                                 18
“the general rule to be that, where a federal court of appeals

sua sponte recalls its mandate to revisit the merits of an

earlier decision denying habeas corpus relief to a state

prisoner, the court abuses its discretion unless it acts to avoid

a miscarriage of justice as defined by our habeas corpus

jurisprudence.”   Id. at 558.

     The question before us is whether we should grant Goodwin’s

motion in order to revisit an issue we have already considered on

the merits, given the existence of a Supreme Court ruling that

arguably rejects the analysis we conducted.9   Unlike Thompson, we

do not face a situation in which we previously have disposed of

all claims a petitioner raised in his first application.   We find



     9
        In Williams, the Supreme Court rejected the Virginia
Supreme Court’s application of Lockhart’s “mere outcome
determination” language to modify the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984), stating that
Lockhart did not “justify a departure from a straight-forward
application of Strickland when the ineffectiveness of counsel
does deprive the defendant of a substantive or procedural right
to which the law entitles him.” Williams, 120 S. Ct. at 1513.
In Goodwin, we assumed that had Goodwin’s appellate counsel
included the claim at issue on direct appeal, the outcome of that
appeal would have been different. See 132 F.3d at 172. We then
examined whether the trial court’s error in rejecting Goodwin’s
modified instruction rendered his trial fundamentally unfair or
rendered Goodwin’s conviction and sentence unreliable, and
determined neither was the case. See id. at 173-76. Under the
Supreme Court’s recent decisions in Williams and in Smith v.
Robbins, 120 S. Ct. 746 (2000), our analysis, if conducted today,
would be different. This is not to say, however, that under the
facts of Goodwin’s case, principles elucidated in Lockhart are
inapplicable. Even Williams acknowledged a continuing role for
Lockhart. See 120 S. Ct. at 1512. We also do not suggest here
that a change in the analysis would necessarily result in our
determining that Goodwin was entitled to habeas relief on his
ineffective-assistance-of-counsel claim.

                                19
that this difference, however, is not sufficient to render the

Supreme Court’s Thompson reasoning wholly inapplicable to our

response to Goodwin’s motion.    We note that but for the issue we

remanded to the district court, Goodwin would be required to file

a successive petition in order for his ineffective-assistance-of-

counsel claim to be revisited.   Unless Goodwin satisfied the

requirements of 28 U.S.C. § 2244(b)(2), the claim would have to

be dismissed under § 2244(b)(1).      Thus, it can be said that

Goodwin seeks to capitalize on the fact we remanded his case and

to have us revisit his claim now in order to avoid the effects of

§ 2244(b).

     We note as well that although the State’s interest in the

finality of convictions may not have acquired the “added moral

dimension” that comes when federal proceedings have “run their

course,” Thompson, 523 U.S. at 556, that interest is not

insubstantial.   Given our limited remand in Goodwin, the State

was entitled to consider Goodwin’s other claims settled by us,

and to view his Fifth Amendment right-to-counsel claim as the

sole basis available for obtaining habeas relief.      By recalling

our mandate under the circumstances presented by this case, we

reduce significantly the value of limitations Congress has

imposed on the ability of prisoners to have claims subjected to

multiple reviews by federal courts.

     Because the same general concerns are implicated here as

where all of a petitioner’s claims have been disposed of, we find


                                 20
that, given the nature and procedural posture of Goodwin’s

request, we must adhere to Thompson’s directive that a federal

court of appeals “recall[] its mandate to revisit the merits of

an earlier decision denying habeas corpus relief to a state

prisoner” only where it determines that such an act is required

“to avoid a miscarriage of justice as defined by [the Court’s]

habeas corpus jurisprudence.”    Thompson, 523 U.S. at 558.    As the

Thompson Court made clear, this requires that Goodwin make a

showing of actual, as opposed to legal, innocence.      See id. at

559 (“[T]he miscarriage of justice exception is concerned with

actual as compared to legal innocence.’” (quoting Sawyer v.

Whitley, 505 U.S. 333, 339 (1992))).     Goodwin has given us no

reason to believe he is able to meet that standard.      For example,

he has provided no indication that he possesses new evidence that

tends to demonstrate actual innocence.       See Thompson, 523 U.S. at

559 (“‘To be credible,’ a claim of actual innocence must be based

on reliable evidence not presented at trial.” (quoting Schlup v.

Delo, 513 U.S. 298, 324 (1995)).      As a result, we decide not to

recall our mandate in order to revisit Goodwin’s ineffective-

assistance-of-counsel claim.



                          IV.   CONCLUSION

     For the foregoing reasons, we affirm the judgment of the

district court.   All outstanding motions are denied.




                                 21
