               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 99-20015

                          Summary Calendar


BAMIDELE OLALUMADE
                                            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 Southern District of Texas
                      USDC No. H-98-CV-691

                            June 16, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Olalumade was convicted of solicitation to commit capital

murder on May 13, 1994.     His conviction was affirmed on direct

appeal on May 23, 1996.     Olalumade did not file a petition for

discretionary review.    He filed a state application for writ of

habeas corpus, which was denied on December 18, 1997, and he filed

a petition for writ of habeas corpus in the district court on March



     *
      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this opinion should not be published and is not precedent except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.
9, 1998.   The district court dismissed Olalumade's petition on the

merits, and we AFFIRM.

     Olalumade claims that he was denied effective assistance of

counsel in violation of the 6th Amendment.     He asserts that his

attorney (1) failed to perfect his direct appeal and to cite

authority to support one of his five points of error in the appeal

resulting in the waiver of that point of error, (2) failed to

inform him of the disposition of his direct appeal, and (3) failed

to inform him that he could file a petition for discretionary

review.

     Since the Court of Appeals for the Fourteenth Judicial Circuit

of Texas decided Olalumade's direct appeal, his claim that the

appeal was not perfected is manifestly false.       Olalumade also

asserts his attorney's inadequate briefing constituted ineffective

assistance of counsel. The state appellate court deemed waived his

claim that the state trial court erred in failing to instruct the

jury on the defense of duress, because Olalumade's attorney cited

no authority in her brief to the appellate court to support that

point of error.   However, the appellate court also noted that the

evidence Olalumade presented did not appear to support the defense

of duress under Texas law.      To state a claim of ineffective

assistance of appellate counsel, a petitioner must show performance

of counsel so deficient as to fall below objectively reasonable

conduct of appellate counsel and resulting prejudice. See Williams



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v. Collins, 16 F.3d 626, 634-35 (5th Cir. 1994). There is prejudice

where there is a reasonable probability that, but for the deficient

performance of counsel, the result on appeal would have differed.

See Moss v. Collins, 963 F.2d 44, 47 (5th Cir. 1992).                    Olalumade

has not shown any probability that the result of the appeal would

have been different had his counsel cited authority on that one of

his five points of error.

       Olalumade claims that his appellate counsel failed to inform

him   of   the   disposition        of   his    direct   appeal.   His    attorney

presented an affidavit in which she stated that she did in fact

inform him       of   the   state    appellate     court's   affirmance    of   his

conviction, and Olalumade presented affidavits from prison mail

room employees who stated that their review of mail records showed

no letter from his attorney.                   We review the district court's

findings of fact for clear error.                 See Fairman v. Anderson, 188

F.3d 635, 640 (5th Cir. 1999).                  We are not persuaded that the

magistrate judge erred in his findings of fact.

      Finally, Olalumade argues that his attorney failed to inform

him of his right to file a petition for discretionary review.

Olalumade argues that he was denied effective assistance of counsel

because his appellate counsel failed to inform him that he could

seek discretionary review after his direct appeal.                 His appellate

attorney stated that she did so inform him, and the magistrate was

convinced that Olalumade's claim was not supported by the facts.


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We   see   no   error   in   the    magistrate's      findings      of   fact.

     Furthermore, there is no right to counsel to prepare petitions

for discretionary review.     See Ross v. Moffitt, 417 U.S. 600, 619

(1974).    In Wainwright v. Torna, the Court reversed this court's

grant of the writ of habeas corpus to a petitioner who claimed

ineffective assistance of counsel because his counsel failed to

timely file a petition for discretionary review. See Wainwright v.

Torna, 102 S.Ct. 1300, 1301 (1982).        The Court held that under Ross

v. Moffitt, the petitioner could not claim ineffective assistance

of counsel for failure to perfect a petition for discretionary

appeal since there was no right to counsel on discretionary review.

See id.

     Olalumade's argument amounts to the claim that his counsel on

direct appeal was ineffective rather than any claim about the

conduct    of   a   discretionary        appeal   that   never      occurred.

Nevertheless, Olalumade argues that he was harmed by the attorney's

failure to inform him of his right to petition for discretionary

review because that prevented him from doing so.                 The alleged

attorney   misconduct   in   this   case     is   equivalent   to    that   in

Wainwright v. Torna, in which the Supreme Court held that no

constitutional right was implicated. Olalumade does not argue that

his attorney's conduct had any effect on his direct appeal of

right.




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     Since Olalumade filed his petition after the effective date of

the Antiterrorism and Efffective Death Penalty Act ("AEDPA"), its

provisions govern his claim.    See Green v. Johnson, 116 F.3d 1115,

1119-20 (5th Cir. 1997).   Olalumade's claims were presented to the

Texas Court of Criminal Appeals in his state application for writ

of habeas corpus.    The state court denied his claims.    When the

Texas Court of Criminal Appeals denies a claim, that claim has been

adjudicated on the merits.     See Ex parte Torres, 943 S.W.2d 469,

472 (Tex. Crim. App. 1997).     When a petitioner's claim has been

adjudicated on the merits in state court proceedings, a federal

court shall not grant a writ of habeas corpus unless the state

court's adjudication of the claim

  (1) resulted in a decision that was contrary to, or involved
  an unreasonable application of, clearly established Federal
  law, as determined by the Supreme Court of the United States;
  or

  (2) resulted in a decision that was based on an unreasonable
  determination of the facts in light of the evidence presented
  in the State court proceeding.

28 U.S.C. § 2254(d).   The state court's disposition of this claim

was consistent with existing Supreme Court precedent, and its

application of the law to the facts was reasonable. The magistrate

judge correctly determined that Olalumade was not entitled to

relief.

     Under Teague v. Lane, new rules of criminal procedure will not

be established on collateral review.   See Teague v. Lane, 489 U.S.

288 (1989).   The State raises the Teague defense for the first time

                                  5
on appeal.     We have discretion to apply the Teague bar even though

the state has waived the defense.            See Caspari v. Bohlen, 510 U.S.

383, 389 (1994).       This court refused to apply the Teague defense

the state waived in Blankenship v. Johnson, 188 F.3d 312, 316 (5th

Cir. 1997).     There, the petitioner claimed ineffective assistance

of   counsel   for    failing    to    inform   him    of   the   possibility     of

discretionary        appeal,    including       the    state's     petition      for

discretionary appeal that resulted in the reinstatement of his

conviction.    See id.    In view of the disposition of this appeal, we

do not decide whether to apply the Teague bar under these different

circumstances.

      Since    Olalumade's       arguments       supporting       his    claim    of

ineffective    assistance       of    counsel   lack   merit,     we    affirm   the

dismissal of his petition.

      AFFIRMED.




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