                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            NOV 9 1998
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 EMILE GOUDEAU, JR.,

                Petitioner - Appellant,                    No. 97-5247
           v.                                           (N.D. Oklahoma)
 HOWARD RAY,                                       (D.C. No. 97-CV-943-TCK)

                Respondent - Appellee.


                              ORDER AND JUDGMENT          *




Before ANDERSON , MCKAY , and LUCERO , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Emile Goudeau, Jr., an Oklahoma state prisoner appearing pro se, seeks to

appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition for writ of


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
habeas corpus. Because Goudeau filed his § 2254 motion after the effective date

of the Antiterrorism and Effective Death Penalty Act (AEDPA), he must obtain a

certificate of appealability before he can appeal the district court’s denial.         See 28

U.S.C. § 2253(c)(1)(A). We deny the certificate of appealability and dismiss the

appeal.



                                     BACKGROUND

       During 1994 and 1995, Goudeau was charged with Possession of Marijuana

with Intent to Distribute, Failure to Obtain a Drug Stamp, Possession of a Firearm

After Former Conviction of a Felony, and DUI.         1
                                                          According to his pleadings,

initially, he was represented by privately retained counsel, but “for reasons of his

poverty [he] was forced to request representation from the Public Defender’s

office.” Pursuant to Goudeau’s request, the court appointed a public defender to

represent him on all charges. R. Vol. I, Tab 1, Attach. 1. Goudeau soon became

dissatisfied with his public defender and moved to dismiss her and have new

counsel appointed, but the Oklahoma trial court denied his motion.               Id.

       On several occasions prior to trial, Goudeau’s counsel recommended that

he accept a plea bargain; on each occasion he refused. Finally, on the day of trial,




       The charges were made in two separate cases. The 1995 case involved the
       1

drug violations, and the 1994 case involved the gun and DUI violations.

                                              -2-
he pleaded guilty, following which he was convicted and sentenced to three 20-

year terms and one 7-year term, all to run concurrently. After his conviction,

Goudeau filed a timely pro se motion to withdraw his guilty plea, and he “hired

private counsel, Jim Goodwin, to represent him on the motion.”          2
                                                                            R. Vol. I, Tab 1

at 15. 3 According to his brief in support of the motion, Goudeau claimed to have

entered his guilty plea under coercion, duress, and with ineffective assistance of

counsel. Id. , Tab 1, Attach. 1. The court denied Goudeau’s motion, at which

time private counsel “abandoned” Goudeau.          Id. , Tab 1 at 15.

       Thereafter, Goudeau filed a timely Notice of Appeal with the Oklahoma

Court of Criminal Appeals.     4
                                   During this time, Goudeau enlisted the assistance of

a fellow inmate, Robert Wirtz, Jr., who, although not an attorney, considered

himself a “jail law clerk.” According to Goudeau’s habeas petition, Wirtz wrote

to the Clerk of the Oklahoma Court of Criminal Appeals, and he received forms

and written instructions regarding how and when the full petition in error should

be filed. Id. , Tab 1 at 15. Relying on his interpretation of the instructions,        i.e. ,



       2
           We infer that Goudeau dismissed his public defender.

       This is the first page of the “Complete Case History” attached to
       3

Goudeau’s petition. For ease of reference, we have consecutively numbered the
pages of Goudeau’s petition and attached pages.

       Presumably, Goudeau intended to make the same assertions on appeal that
       4

he had made in his motion.  However, the record does not contain copies of the
Notice of Appeal or of the Petition in Error.

                                             -3-
that pleadings would be considered filed the date of the postmark, not the date

received, 5 Wirtz mailed Goudeau’s pro se petition in error on January 3, 1996,

one day before the expiration of the ninety day filing period for criminal appeals.

A few days later, Wirtz telephoned the Oklahoma appellate court to make certain

that the petition had been filed. At that time, he was told that the petition had

been filed on January 8, 1996, and that it would be considered untimely. He was

further informed that the postmark rule applies only in civil cases, while in

criminal cases, filings are deemed filed when received, not when sent.    Id.

      Wirtz then filed a combined motion and affidavit with the Oklahoma Court

of Criminal Appeals, in which he set forth the claim of misleading instructions

and urged acceptance of the petition as timely when mailed. The Oklahoma Court

of Criminal Appeals refused to consider the motion, since Goudeau, who was

proceeding pro se, did not sign it, and Wirtz, who was not a licensed attorney,


      5
        Both Wirtz and Goudeau take this instruction out of context. As more
fully set forth, the instructions refer to an enclosed form, provide information
about fees and copies, and then instruct the appellant as follows:

      5. Mail it [the form] in time for us to receive it on or before thirty
      days from the date the judgment was filed, or

      6. Mail it certified, return receipt requested with the post office
      purple cancellation stamp on the front of the package. Make sure the
      post office stamps it in front of you. If you mail it this way, it will
      be considered filed when you mailed it, not filed when we get it.

R. Vol. I, Tab 1, Attach. 2 (emphasis added).

                                           -4-
was not authorized to sign pleadings. The court then dismissed Goudeau’s appeal

as untimely. Goudeau, still assisted by Wirtz, tried to pursue his appeal further in

the Oklahoma state court system,   but found it dismissed on procedural grounds at

every turn.

      The federal district court dismissed Goudeau’s § 2254 habeas petition for

similar reasons, holding that federal courts may not consider habeas claims which

the state’s highest court refused to hear because of an adequate and independent

state procedural defect. Goudeau now seeks to appeal that decision, and in

addition to his opening brief, he has filed a motion to supplement his argument

with more specific authority related to ineffectiveness of his retained counsel who

“abandoned” him.



                                   DISCUSSION

      Habeas petitioners, such as Goudeau, are entitled to a certificate of

appealability only if they can make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

      The district court correctly stated that the doctrine of procedural default

prohibits a federal court, on habeas review, from considering claims which the

state’s highest court declined to reach because of an adequate and independent

state procedural defect, unless the habeas petitioner can meet the “cause and


                                         -5-
prejudice” standard set forth by the Supreme Court.            See Coleman v. Thompson ,

501 U.S. 722, 724 (1991);     Murray v. Carrier , 477 U.S. 478, 488 (1986). Under

this standard, the petitioner must “demonstrate cause for the default and [that]

actual prejudice” resulted therefrom.      Coleman , 501 U.S. at 724.

         Goudeau can show cause if he can demonstrate that “some objective factor

external to the defense impeded . . . efforts to comply with the state procedural

rules.” Murray , 477 U.S. at 488. Examples of such external factors include the

discovery of new evidence, a change in the law, and interference by state

officials. Id. Ineffectiveness of counsel can also satisfy the cause and prejudice

requirement. See United States v. Cook , 45 F.3d 388, 392 (10th Cir.1995).

         In this case, Goudeau makes three arguments. The first two relate to cause:

1) that the misleading instructions from the Oklahoma state court clerk constitute

“interference by state officials;” and 2) his “abandonment” by his retained counsel

constitutes ineffectiveness. His third argument relates to the alleged denial of his

constitutional rights—that the Oklahoma Court of Criminal Appeals violated his

constitutional rights by failing to apply the         Houston v. Lack mailbox rule to his

case. See Houston v. Lack , 487 U.S. 266 (1988). None of his arguments has

merit.

         First, with respect to the clerk’s instructions, the record clearly

demonstrates that Goudeau did not follow or rely on them. That is, he ignored the


                                                -6-
thirty day period set forth in the instructions (the applicable period for civil

appeals), attempting instead to file within the ninety day period for criminal

appeals. Moreover, he has made no showing that he mailed the appeal by

certified, return-receipt-requested mail as explicitly required by the instructions.

       Second, although Goudeau makes the conclusory statement that his private

counsel “abandoned” him, his own recitation of the facts indicates that he hired

him only to argue the motion. R. Vol. I, Tab 1 at 15. Moreover, Goudeau makes

no claim that he was not advised about the advantages and disadvantages of

appealing or about the existence of any meritorious grounds for an appeal.    6
                                                                                   In

fact, it is undisputed that Goudeau understood and followed the requirements for

initiating an appeal by filing a timely Notice of Appeal.

       While an appointed attorney may not withdraw merely because he or she

believes an appeal to be frivolous,    see Anders v. California , 386 U.S. 738, 744

(1967), generally, court leave is not required when a privately retained attorney

wishes to withdraw at the conclusion of trial.    McCoy v. Court of Appeals of

Wisconsin, Dist. 1 , 486 U.S. 429, 437 (1988) (“When retained counsel concludes

that an appeal would be frivolous, he or she has a duty to advise the client that it

would be a waste of money to prosecute the appeal and that it would be unethical



       6
        The Oklahoma court found that Goudeau had been fully advised of his
right to appeal. R. Vol. I, Tab 1, Attach. 10 at consecutively numbered p. 42.

                                            -7-
for the lawyer to go forward with it.”). Notably, Goudeau makes no claim that he

did not know how to seek appointed counsel for purposes of his appeal; certainly

the fact that he had previously moved for the appointment of trial counsel

suggests he was familiar with the procedure.       7
                                                       In effect, Goudeau argues that,

even though he dismissed his state appointed trial counsel, and then chose not to

seek appointment of new counsel for his appeal, he is entitled to claim

ineffectiveness. However, he cites no authority for this proposition, and under

the circumstances, we conclude that Goudeau has not demonstrated

ineffectiveness.

       Finally, with respect to his constitutional claim based on the       Houston

mailbox rule, “[t]he rationale of   Houston was not constitutional or equitable in

nature; rather, it was based on an interpretation of the word ‘filed’ in the rule

. . . governing the timeliness of notices of appeal” under Fed. R. App. P. 4(a)(1).

Jenkins v. Burtzloff , 69 F.3d 460, 461 (10th Cir. 1995). In this case, Goudeau’s

claimed error is premised on the Oklahoma court’s interpretation of a state



       In fact, Goudeau did eventually move the court to appoint counsel to
       7

represent him, only to have his motion denied. However, the record clearly
demonstrates that Goudeau’s motion came months after his direct appeal was
dismissed. R. Vol. I, Tab 1, Attach. 11 (Order dated November 5, 1996,
apparently in connection with Goudeau’s appeal of the denial of his application
for post-conviction relief). The law is clear that denial of counsel at that stage of
the proceedings does not violate the Sixth Amendment. See Coleman v.
Thompson, 501 U.S. 722, 756 (1991) (noting that a defendant has no
Constitutional right to counsel in state collateral proceedings).

                                             -8-
procedural rule. As we have repeatedly noted, a federal court may not conduct

habeas review for alleged errors of state law.     Fero v. Kerby , 39 F.3d 1462, 1474

(10th Cir. 1994) (citing   Estelle v. McGuire , 502 U.S. 62, 67-68 (1991)).

       We GRANT Goudeau’s motion to supplement. Because Goudeau has failed

to make “a substantial showing of the denial of a constitutional right,” we DENY

the certificate of appealability and DISMISS the appeal.

                                                  ENTERED FOR THE COURT



                                                  Stephen H. Anderson
                                                  Circuit Judge




                                            -9-
