           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 13, 2009

                                       No. 08-70014                    Charles R. Fulbruge III
                                                                               Clerk

JOHN LEZELL BALENTINE

                                                   Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                   Respondent-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 2:03-CV-39


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       John Lezell Balentine appeals the district court’s denial of his petition for
a writ of habeas corpus and also seeks to expand his certificate of appealability
(COA) to include additional issues. We DENY Balentine’s motion to expand the
COA and AFFIRM the district court’s denial of his habeas petition.
       On August 26, 1998, Balentine was charged with capital murder for killing
three individuals in Amarillo, Texas. A jury convicted Balentine, and he was


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-70014

sentenced to death. The Texas Court of Criminal Appeals affirmed both the
conviction and sentence on direct appeal. Balentine v. State, 71 S.W.3d 763 (Tex.
Ct. Crim. App. 2002). Balentine subsequently filed for state habeas relief, but
his petition was denied.
      Balentine filed a federal habeas petition in November 2003, asserting
eighteen grounds for relief. That petition later was amended to include only
nine grounds.    A magistrate judge recommended the denial of Balentine’s
petition but also recommended that a COA issue on two issues. The district court
adopted the magistrate’s recommendation, and Balentine timely appealed.
                                 DISCUSSION
A.    Expansion of the COA
      When a party seeks an expanded COA, we may certify the new issues if
ordinary COA requirements are met. United States v. Kimler, 150 F.3d 429, 431
(5th Cir. 1998). A COA will issue when the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
requires the petitioner to demonstrate “that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). When, as here, a COA is denied on
procedural grounds, the petitioner must show “that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling.” Id.
      Before addressing the two grounds on which the COA was granted, we
discuss the additional grounds he asserts. In ground seven, Balentine asserted
that his Eighth Amendment right to individualized sentencing had been violated
because of his trial counsel’s failure to present mitigating evidence. In ground
eight, Balentine asserted that his Eighth and Fourteenth Amendment rights had
been violated because of his trial counsel’s failure to investigate and present
mitigating and risk-assessment evidence during the punishment phase of his
trial. The district court construed both of these grounds as claims of ineffective

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trial counsel and found them procedurally defaulted because Balentine had not
presented the claims in his state habeas petition. See Martinez v. Johnson, 255
F.3d 229, 239 (5th Cir. 2001).
      Balentine refers us to an exception to the exhaustion requirement. Even
though counsel’s ineffectiveness in appealing the denial of a state petition for
collateral relief does not constitute cause for excusing procedural default, an
exception may exist in “cases where state collateral review is the first place a
prisoner can present a challenge to his conviction.” Coleman v. Thompson, 501
U.S. 722, 755 (1991).     Balentine does not explain why the state habeas
proceeding would have been the first opportunity to raise an argument
concerning his trial counsel’s ineffectiveness. He nonetheless concedes that this
circuit has rejected that an exception exists under Coleman. See Martinez, 255
F.3d at 240 (“This court is foreclosed by precedent from considering whether an
exception exists under the Coleman rule.”). He raises the issue only to preserve
it for further review. We reject the argument.
      Balentine next argues that his failure to raise grounds seven and eight in
his state habeas proceeding is excusable. The statute under which this petition
was filed excuses exhaustion where “circumstances exist that render such
[available State corrective] process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). Balentine maintains that he was not
required to exhaust his claims because the Texas habeas process, as a whole,
suffers from “systemic defects in the mechanism for the appointment and
selection of Texas habeas counsel.” Yet Balentine makes no attempt to explain
how the appointment and selection processes are flawed. Instead, he asks for an
evidentiary hearing to develop such evidence.
      The district court correctly characterized Balentine’s argument as merely
another way of asserting that having ineffective state habeas counsel should
excuse procedural default. We have rejected similar arguments before. See

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Roberts v. Dretke, 356 F.3d 632, 640 (5th Cir. 2004); Martinez, 255 F.3d at 239
n.10. In Roberts, the petitioner argued that Section 2254(b)(1)(B)(ii) applied
because “the Texas Court of Criminal Appeals deprived his state habeas
attorney of the funding needed to develop and present these claims” that his trial
counsel was deficient. 356 F.3d at 640. We explained that “there is no right to
counsel in habeas proceedings. By implication, there is no right to funding of
state habeas counsel.     The claims were not exhausted and were properly
dismissed.” Id. (citations omitted). Moreover, in Martinez, we held that “failure
to provide ‘competent’ counsel for a state habeas petition does not fall under the
general catch-all exception provided in § 2254(b)(1)(B)(ii).” 255 F.3d at 239 n.10.
      Balentine distinguishes Roberts and Martinez on the basis that neither
raised the argument that the state habeas system, as a whole, was ineffective.
We find this distinction insignificant. Since there is no right to counsel in
habeas proceedings in the first place, there can be no right to have the state
habeas system appoint effective counsel. See Roberts, 356 F.3d at 640.
      Grounds seven and eight are procedurally defaulted, and no evidentiary
hearing is warranted. See Clark v. Johnson, 227 F.3d 272, 284 (5th Cir. 2000).
Reasonable jurists would not find this conclusion “debatable.” See Slack, 529
U.S. at 484. There is no reason to expand the COA.
B.    Fourth Amendment Claims
      The district court granted Balentine a COA on the first and second
grounds alleged in his amended petition. Both grounds assert that evidence was
admitted at Balentine’s trial that was the product of Fourth Amendment
violations. Balentine contends that this evidence should have been excluded.
We now consider whether the district court was correct to hold that these claims
cannot survive a procedural bar created by the Supreme Court.
      There is no “habeas review of Fourth Amendment claims when the state
has provided an opportunity for full and fair litigation of the claim.” ShisInday

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v. Quarterman, 511 F.3d 514, 524 (5th Cir. 2007) (citing Stone v. Powell, 428
U.S. 465, 494 (1976)). Balentine cites a precedent from this circuit in support of
his argument that “full and fair litigation” did not occur. See Doescher v. Estelle,
616 F.2d 205 (5th Cir. 1980). In Doescher, we held that there was no “full and
fair litigation” because the state trial court adjudicated the petitioner’s Fourth
Amendment claims under a procedure that was subsequently found
unconstitutional.   Id. at 207.   Balentine does not argue an unconstutional
procedure was applied in his state trial.      Balentine also relies on another
circuit’s holding that federal habeas review is not foreclosed where a state trial
court “willfully refuses to apply the correct and controlling constitutional
standards.” Gamble v. Oklahoma, 583 F.2d 1161 (10th Cir. 1978). We find no
evidence of “willful” rejection of controlling precedent by the Texas court. At
most, there might have been a misapplying of federal constitutional law. That
does not suffice. “If the term ‘fair hearing’ means that the state court must
correctly apply federal constitutional law, Stone becomes a nullity.” Swicegood
v. Alabama, 577 F.2d 1322, 1324 (5th Cir. 1978).
      Balentine was not deprived a “full and fair opportunity” to litigate his
Fourth Amendment claims during his state trial. Prior to trial, he filed a motion
to suppress, and the trial court held a hearing. Balentine also objected to the
admission of the evidence at trial, and raised the claims on direct appeal.
Accordingly, his claims are barred under Stone.
      Balentine’s request to expand the COA is DENIED, and the district court’s
dismissal of his habeas petition is AFFIRMED.




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