IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-41160

GREGORY LAWRENCE MOORE, Petitioner-Appellee,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant.

Appeal from the United States District Court For the Eastern District of Texas

November 26, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Janie Cockrell, Director of the Texas Department of Criminal

Justice, Institutional Division, appeals the district court's grant

of the writ of habeas corpus to the petitioner, Gregory Lawrence

Moore. We conclude that under the deferential scheme of

the decision of the state court was not contrary to or an

unreasonable application of clearly established federal law as

determined by the Supreme Court of the United States.

Following conviction in state court for failure to appear and

an unsuccessful direct appeal, Moore filed two unsuccessful state habeas petitions. These petitions raised his claim of ineffective

assistance of appellate counsel which is at issue here and were

rejected on the merits by the state court. Moore then filed for

habeas relief in the district court alleging several grounds for

relief, and all but one claim was rejected.

The federal district court found that Moore’s appellate

counsel was ineffective in failing to notify him timely of the

outcome of his direct appeal, and as a result Moore was time-barred

from filing a discretionary appeal. The district court granted

Moore a writ of habeas corpus vacating the conviction unless the

state court allowed an out-of-time discretionary appeal to be filed

within 90 days.

Moore filed his federal habeas petition on December 29, 2000,

and is therefore subject to the provisions of Antiterrorism and

Effective Death Penalty Act of 1996.1 Under AEDPA, we ask if the

state court decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States” or “resulted in a decision

that was based upon an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding."2

Clearly established federal law “refers to the holdings, as opposed

to the dicta, of [the Supreme] Court's decisions as of the time of

1 See Lindh v. Murphy,

(1997). 2

(d) (1994).

2 the relevant state-court decision."3 A claim of ineffective

assistance of counsel, the only claim before us, is a mixed

question of law and fact and should be reviewed under the “contrary

to” and “unreasonable application” prong of

(d).4

The deference of Section 2254(d) is due when the state court has

adjudicated the petitioner's claim on the merits.5 The Texas Court

of Criminal Appeals denied Moore’s state applications for writ of

habeas corpus on the merits.

The magistrate judge’s report and recommendation did not

mention AEDPA. The Director timely objected to the report,

pointing out that the state court’s decision must be upheld unless

it is contrary to or involves an unreasonable application of

federal law.

In summarily rejecting this objection without reference to

AEDPA, the able district court concluded that “Moore has a clearly

established federal right to effective assistance of counsel on

appeal, assistance which was supposed to but did not include

notification of the outcome of his appeal and the right to proceed

further.”6 The court relied on Shiloh-Bryant v. Director, TDCJ-ID,

3 Terry Williams v. Taylor,

(2000). 4 Valdez v. Cockrell,

(citing Clark v. Johnson,

(5th Cir. 2000); Nobles v. Johnson,

(5th Cir. 1997)). 5 See

(d). 6 Memorandum Adopting Report and Recommendation of the United States Magistrate Judge and Entering Final Judgment at 4, Moore v. Director, TDCJ-ID, No. 6:00cv758 (E.D. Tex. Sept. 10, 2001).

3 a district court decision that relied on state law to determine the

scope of the constitutional right to counsel.7

There is Supreme Court precedent. In Ross v. Moffitt, the

Court stated that there is no right to counsel for discretionary

reviews in state court.8 It noted that the right to appellate

counsel is “an adequate opportunity to present his claims fairly in

the context of the State’s appellate process.”9 Moore has never

asserted that his counsel was ineffective in presenting his direct

appeal, only that he was not notified of the outcome.

This court recently examined the scope of the right to

appellate counsel, holding that it does not extend to filing a

motion for rehearing following the disposition of defendant’s case

on direct appeal.10 This court emphasized that the motion for

rehearing came after the appellate court ruled on the claims, and

stated that “[w]hen a state grants a criminal defendant an appeal

of right, the Constitution requires only that the defendant's

7

(E.D. Tex. 2000) (holding that because state prisoner’s attorney did not fulfill his state law obligation to notify his client of the outcome of his direct appeal, or advise him that a pro se petition for discretionary review could be filed, the prisoner’s federal constitutional right to effective assistance of counsel on direct appeal was violated, and therefore federal habeas should be granted.). The court in Shiloh-Bryant made no reference to AEDPA. 8

(1974). 9

. See also Wainwright v. Torna,

(1982) (per curiam) (stating “since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel”). 10 Jackson v. Johnson,

(5th Cir. 2000).

4 claims be ‘once ... presented by a lawyer and passed upon by an

appellate court.’”11

The constitutionally secured right to counsel ends when the

decision by the appellate court is entered. These decisions

support the state court’s denial of habeas and do not demonstrate

that its holding was “contrary to, or involved an unreasonable

application of, clearly established Federal law,” as AEDPA

requires.

Therefore, the decision of the district court is VACATED and

REMANDED for consideration in light of AEDPA’s deferential

standard.

11

(quoting Ross,

).

5