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United States Court of Appeals,
Fifth Circuit.
No. 93-7712.
John Buford IRVING, III, Petitioner-Appellant,
v.
Edward HARGETT, Superintendent, Mississippi State Penitentiary,
et al., Respondents-Appellees.
July 20, 1995.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before DAVIS, SMITH and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.
Irving appeals the district court's dismissal of his § 2254
petition as a successive writ. We affirm.
I.
The facts of this case are set out in detail in Irving v.
State, 361 So.2d 1360, 1362-63 (Miss.1978) ("Irving I "), cert.
denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), and
Irving v. State, 498 So.2d 305, 308 (Miss.1986) ("Irving III "),
cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987).
In brief, Irving and his co-defendant, Keith Givhan, robbed and
killed Grambrell Ray on March 3, 1976, in Ray's grocery store.
Ray's wife testified that she saw Irving with a shotgun immediately
following the shooting. Irving later made a statement to
authorities that he had shot Ray after Ray had advanced toward him.
Irving was convicted of capital murder and sentenced to death in a
separate sentencing proceeding. At the sentencing hearing, Irving
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testified that Givhan actually had fired the fatal shot.
The Mississippi Supreme Court upheld the conviction and
sentence on direct appeal. Irving I, supra. Following a denial by
the Mississippi Supreme Court for an application to file a writ of
error coram nobis, Irving v. State, No. 03-DP-04 (May 23, 1979),
petitioner filed his first petition for federal habeas relief.
In July 1981, the district court granted relief as to the
sentencing phase of Irving's original trial but denied relief as to
the guilt phase. Irving v. Hargett, 518 F.Supp. 1127
(N.D.Miss.1981). The court determined that Irving's attorney, Mr.
McClellan, who also represented Irving's co-defendant Givhan,
conducted Irving's defense under an unconstitutional conflict of
interest. The court, however, specifically found that only the
sentencing phase of the proceeding was affected and not the guilt
phase. Id. at 1144-45. Mr. McClellan, who acted as both trial
counsel and habeas counsel, did not appeal the district court's
rejection of Irving's § 2254 attack on his conviction, apparently
despite the request of petitioner.
Irving was resentenced in November 1981. Again, the jury
returned a death sentence, and the sentence was again upheld on
direct appeal by the Mississippi Supreme Court. Irving v. State,
441 So.2d 846 (Miss.1983) ("Irving II "), cert. denied, 470 U.S.
1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985). While the direct
appeal was pending, petitioner filed a pro se petition for federal
habeas relief, again challenging his 1976 conviction. The district
court again denied relief, on the same grounds stated in its
2

earlier ruling. Irving v. Lucas, No. WC 82-139-WK-P (N.D.Miss.
Nov. 29, 1982). Petitioner filed a pro se notice of appeal to this
court and moved for the appointment of counsel. This court denied
the appointment of counsel. Petitioner then moved to dismiss the
appeal, which this court granted. Following a failed attempt at
state collateral relief, Irving III, supra, petitioner again sought
relief from the U.S. Supreme Court. This petition was also denied.
Irving v. Mississippi, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d
826 (1987).
Irving filed the instant petition in July 1987. While this
case was under consideration by the district court, Irving filed
another petition for relief with the Mississippi Supreme Court.
That Court vacated Irving's death sentence and remanded for a new
sentencing hearing. Irving v. State, 618 So.2d 58 (Miss.1992)
("Irving IV "). The federal district court's opinion in this case
was filed in October 1993. The district court dismissed the claims
related to the 1982 sentencing phase as moot and dismissed the
claims relating to the 1976 conviction as either successive or an
abuse of the writ. This appeal followed.
II.
Petitioner challenges the trial court's rejection of his
ineffective assistance and inadmissible confession claims, both of
which are predicated on counsel's conflict of interest.1 Irving
presented these identical claims in his first federal habeas
1These are referred to as claims two and five in the
district court's opinion.
3

petition in 1981 and again in his second federal habeas petition in
1982. The district court considered and rejected those claims on
the merits in both habeas proceedings. As discussed above,
petitioner did not appeal the district court's rejection of his §
2254 attack on his conviction in either of the earlier habeas
proceedings.
The district court therefore dismissed these two claims as
successive under Rule 9(b) of the Rules Governing § 2254 Cases,
which states:
(b) Successive motions. A second or successive petition may
be dismissed if the judge finds that it fails to allege new
and different grounds for relief and the prior determination
was on the merits or, if new and different grounds are
alleged, the judge finds that the failure of the movant to
assert those grounds in a prior petition constituted an abuse
of the writ.
Rules Governing § 2254 Cases, Rule 9(b), 28 U.S.C. foll. § 2254.
The district court also found that petitioner's conduct offended
the finality concept as articulated in McCleskey v. Zant, 499 U.S.
467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
By its terms, McCleskey addresses the type of writ abuse that
"defines the circumstances in which federal courts decline to
entertain a claim presented for the first time in a second or
subsequent petition for a writ of habeas corpus." Id. at 470, 111
S.Ct. at 1457. Irving did not raise claims two and five for the
first time in the instant petition; rather, he is raising these
precise issues for the third time. Thus, arguably, McCleskey's
standard, with its cause and prejudice and miscarriage of justice
exceptions, see id. at 493-94, 111 S.Ct. at 1469-70, is too
4

generous to the petitioner. But even if we apply the McCleskey
standard for "cause" to determine whether Irving's successive writ
can be entertained, Irving cannot prevail.
Absent a showing of cause, then, Irving was bound to assert
these claims in an appeal of his first federal habeas petition,
rather than seek to relitigate the same claims in a subsequent
petition. See Hamilton v. McCotter, 772 F.2d 171, 178 n. 12 (5th
Cir.1985). Petitioner argues that his attorney's conflict of
interest constitutes cause for his failure to perfect an appeal
from the district court's original rejection of these claims in his
first federal habeas proceedings. He asserts that Mr. McClellan,
the attorney who represented him in his first federal habeas
proceedings, is the same attorney who was found to have a conflict
of interest at the original trial. Petitioner argues that we
therefore should infer that counsel's failure to file the appeal
was a product of this same conflict.
Even if we draw the requested inference, petitioner's
argument fails. In a federal habeas petition, we evaluate a claim
that attorney error constitutes cause for such a default as a
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), ineffective assistance of counsel claim. Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397
(1986). The Supreme Court, however, has made it clear that a
convicted defendant has no Sixth Amendment right to counsel in
post-conviction habeas proceedings. See Pennsylvania v. Finley,
481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987).
5

Because a petitioner does not have a constitutional right to
counsel in post-conviction habeas proceedings, it follows that a
petitioner cannot claim ineffective assistance of counsel in such
proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct.
2546, 2566, 115 L.Ed.2d 640 (1991). Thus, error or misconduct by
Irving's counsel cannot establish cause for his failure to appeal
the rejection of these claims in his first federal habeas
proceedings. See Johnson v. Hargett, 978 F.2d 855, 859 (5th
Cir.1992) ("[B]ecause there is no constitutional right to counsel
in federal habeas, under McCleskey, no error by counsel in a habeas
proceeding can constitute cause."), cert. denied, --- U.S. ----,
113 S.Ct. 1652, 123 L.Ed.2d 272 (1993).2
Petitioner's claim that cause in this instance stems from a
conflict of interest rather than attorney incompetence does not
alter this conclusion. The Court's discussion in Strickland itself
makes clear that both types of claims concern a violation of the
defendant's Sixth Amendment right to effective assistance of
counsel. See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. See
also Beets v. Collins, 986 F.2d 1478, 1483 (5th Cir.), reh'g
granted, 998 F.2d 253 (5th Cir.1993). Thus, a conflict of interest
claim is properly analyzed under Strickland, although it is easier
for a petitioner to establish prejudice if a conflict of interest
is found to have existed. See Strickland, 466 U.S. at 692, 104
S.Ct. at 2067.
2Petitioner does not argue McCleskey's "fundamental
miscarriage of justice" exception.
6