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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 28 U.S.C.
§ 2254 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, 521 U.S. 320, 324-26 (1997).
2 28 U.S.C. § 2254(d) (1994).
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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 28 U.S.C. § 2254(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, 529 U.S. 362, 412 (2000).
4 Valdez v. Cockrell, 274 F.3d 941, 946 (citing Clark v. Johnson, 202 F.3d
760, 764 (5th Cir.2000); Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir.1997)).
5 See 28 U.S.C. § 2254(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
7 104 F. Supp. 2d 696 (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.
8 417 U.S. 600, 619 (1974).
9 Id. at 616. See also Wainwright v. Torna, 455 U.S. 586, 587-88 (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, 217 F.3d 360, 364-65 (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 Id. (quoting Ross, 417 U.S. at 614).
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