                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                                                        October 10, 2003
                           UNITED STATES COURT OF APPEALS
                                                                    Charles R. Fulbruge III
                                         FIFTH CIRCUIT                      Clerk
                                        _________________

                                           No. 03-20273
                                        _________________


MARION BUTLER DUDLEY,


                                Petitioner-Appellant,

versus


DOUG DRETKE, Director, Texas Department of
Criminal Justice, Institutional Division,


                                Respondent-Appellee.



                            Appeal from the United States District Court
                                For the Southern District of Texas
                                      USDC No. 01-CV-1506



Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

         Marion Butler Dudley (“Dudley”) seeks the issuance of a Certificate of Appealability (“COA”)

to appeal the district courts’s dismissal of his 28 U.S.C. § 2254 claim. Dudley claims the district


         *
               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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
court incorrectly found three of Dudley’s habeas claims to be procedurally defaulted. The three

claims Dudley seeks a COA for include: 1) that the trial court erred in replacing his original counsel;

2) that his trial counsel did not provide effective assistance when they failed to investigate and present

mitigating evidence; and 3) that the evidence to support his death penalty sentence was

constitutionally deficient.

        Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 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 standard for issuing a COA under AEDPA is whether, “jurists of reason could

debate whether . . . the pet ition should have been resolved in a different manner. . . .” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district court

is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the petitioner shoul d be allowed to proceed

further.” Id. However, the COA determination only “requires an overview of the claims in the

habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 123 S.Ct. 1029, 1032

(2003). “This threshold inquiry does not require full consideration of the factual or legal bases

adduced in support of the claims.” Id. The issuance of a COA is not pro forma or a matter of course,

and the petitioner must still show that the claim is debateable. Id. at 1040.

        The district court found Dudley’s claim that the state trial court violated his Sixth Amendment

right to counsel by replacing his original trial counsel was procedurally barred because his initial state

habeas petition did not include a claim relating to the replacement of his trial counsel. After the state

trial habeas court entered its proposed findings of facts and conclusions of law, Dudley sought to add

two claims relating to the replacement of his original counsel. The state habeas court construed this


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as a successive habeas application. The Texas Court of Criminal Appeals agreed and dismissed the

application as an abuse of the writ. “[A] state procedural default of any federal claim will bar federal

habeas unless the petitioner demonstrates cause and actual prejudice.” Coleman v. Thompson, 501

U.S. 722, 748 (1991).

          Dudley argues that inadequate representation from his state habeas counsel constitutes cause

for this procedural default. “Attorney ignorance or inadvertence is not ‘cause’ because the attorney

is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation. . . .” Coleman,

501 U.S. at 753. Furthermore, there is no constitutional right to an attorney in post-conviction

proceedings, therefore a petitioner cannot claim constitutionally ineffective counsel in such

proceedings. Coleman, 501 U.S. at 752 (citing Wainwright v. Torna, 455 U.S. 586 (1982); Murray

v. Giarratano, 492 U.S. 1, 10 (1989).).

          The district court found two of Dudley’s claims were procedurally barred because those

claims were not raised in his state habeas petition: Dudley’s claim that his trial counsel provided

ineffective assistance of counsel when they failed to investigate and present mitigating evidence and

his claim that the evidence to support his death penalty conviction was constitutionally insufficient.

An applicant for federal habeas must “first present those claims to the state court and must exhaust

state remedies.” Martinez v. Johnson, 225 F.3d 229, 238 (5th Cir. 2001). 28 U.S.C. § 2254(b).

Unexhausted claims are procedurally barred, but a federal habeas petitioner can overcome this

procedural bar by “demonstrat[ing] cause for the defaults and actual prejudice.” Martinez, 225 F.3d

at 239.

          Dudley claims his state habeas counsel was not competent which he claims provides adequate

cause for his failure to present his unexhausted claims to the state courts. “Attorney ignorance or


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inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when acting, or failing to act,

in furtherance of the litigation” Coleman, 501 U.S. at 753. In Martinez this Court held an ineffective

assistance of counsel claim was procedurally barred because it was not presented to the state court

either at trial or in the state habeas claim. Martinez, 255 F.3d at 240-41. at 240. Specifically

Martinez held “ineffective assistance of habeas counsel cannot provide cause for a procedural

default.” Id. at 241. Without a showing of cause, a state procedural default of a federal claim acts

to bar federal habeas. Coleman 501 U.S. at 748.

        “Where a plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed further.” Slack, 529 U.S.

at 484. Reasonable jurists could not disagree that the district court properly invoked the procedural

bar for each of the three claims Dudley raises in his application for a COA. Therefore the application

for a Certificate of Appealability is DENIED.




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