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United States Court of Appeals,
Fifth Circuit.
No. 94-10297.
Gary STERLING, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
July 1, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The basic question presented in this appeal is whether this
death-row inmate may tap federal funds to pay his counsel to
exhaust his habeas claims in state court.
Here, the federal district court dismissed the petitioning
inmate's habeas corpus action for failure to exhaust state remedies
and denied his application for a certificate of probable cause
("CPC"). Sterling asks this court for CPC on his habeas claims and
an order holding his federal appeal in abeyance so that he may use
federally funded counsel for the exhaustion of his state
postconviction remedies. Because we hold that Sterling has not
exhausted his postconviction claims, we deny CPC. Further, because
we hold that the petitioner has no statutory right to federally
funded counsel for exhausting postconviction claims in state court,
we deny his request for an order holding this federal appeal in
abeyance.
1

I
A Texas jury, based in part on the defendant's confession,
convicted Gary Sterling of murdering his robbery victim by bashing
his head with a bumper jack. Sterling v. State, 830 S.W.2d 114,
116 (Tex.Crim.App.1992), cert. denied, --- U.S. ----, 113 S.Ct.
816, 121 L.Ed.2d 688 (1992). The Texas jury, based in part upon
evidence of Sterling's other murders and the testimony of a
district attorney that he had never "run across ... a more violent
mass murderer than Gary Sterling," sentenced the defendant to
death. Id. at 120.
II
In an effort to overturn his conviction and capital sentence,
Sterling filed a motion for stay of execution and for appointment
of counsel in federal district court on January 22, 1993--a few days
before his scheduled execution date. After the magistrate judge
appointed counsel for Sterling, Sterling filed an amended habeas
petition asserting thirty-nine grounds for relief. Only five of
those grounds had been dealt with previously by Texas courts. The
State filed a motion with the district court to dismiss Sterling's
federal habeas petition for failure to exhaust state remedies.
Sterling argued that the federal habeas proceedings should be held
in abeyance so that he could enjoy his federal right to counsel
under 21 U.S.C. § 848(q)(4)(B) while exhausting his state remedies.
The district court, agreeing with the magistrate judge, dismissed
Sterling's habeas petition for failure to exhaust state remedies
and denied Sterling's application for CPC.
2

III
Sterling comes before this court with an application for CPC
from the district court's denial of his federal habeas petition.
We have no jurisdiction to hear an appeal from denial of habeas
relief unless we grant CPC. Black v. Collins, 962 F.2d 394, 398
(5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119
L.Ed.2d 601 (1992). To obtain CPC, Sterling must make a
substantial showing that he has been denied a federal right.
Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77
L.Ed.2d 1090 (1983). A fundamental prerequisite to federal habeas
relief under 28 U.S.C. § 2254 is the exhaustion of all claims in
state court under § 2254(b) prior to requesting federal collateral
relief. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982) (requiring dismissal of habeas action containing
both exhausted and unexhausted claims). Because Sterling has
failed to exhaust his postconviction claims in state court, he has
asserted no cognizable right to federal habeas relief under § 2254.
Consequently, we deny his application for CPC.
Sterling also argues that the district court's dismissal of
his habeas petition was inappropriate because it deprives him of
his statutory right, under 21 U.S.C. § 848(q)(4)(B), to retain his
federally funded counsel in his state postconviction proceedings.1
1We note that although a CPC is required for appellate
review of the denial of habeas relief, no such requirement exists
for appellate review of the denial of appointment of counsel
under § 848(q)(4)(B). Barnard v. Collins, 13 F.3d 871, 878 n. 6
(5th Cir.1994). The same rule should apply to the retention of
such counsel.
3

Because Sterling apparently recognizes that absent a § 2254
proceeding he is not entitled to federally provided counsel under
§ 848(q)(4)(B), he is effectively asking this court to order a stay
of the federal habeas proceeding in the district court to allow him
to use federally funded counsel to exhaust his state remedies.
Sterling argues that § 848(q) obligates the federal government to
appoint and fund counsel in this federal habeas proceeding, and
that this counsel should represent him in all future state and
federal proceedings.2 We disagree.
In pertinent part, § 848(q)(4)(B) provides:
In any post conviction proceeding under section 2254 or 2255
of Title 28, seeking to vacate or set aside a death sentence,
any defendant who is or becomes financially unable to obtain
adequate representation ... shall be entitled to the
appointment of one or more attorneys and the furnishing of
such other services in accordance with paragraph [ ] ...
(8)....
Section 848(q)(8), in turn, provides in pertinent part:
[E]ach attorney so appointed shall represent the defendant
throughout every subsequent stage of available judicial
proceedings, including ... all available postconviction
process, ... competency proceedings and proceedings for
executive or other clemency....3
The Eleventh and Eighth Circuits have both held that the above
language does not require the federal government to pay for counsel
for the exhaustion of postconviction claims in state court. In re
Lindsey, 875 F.2d 1502, 1505-07 (11th Cir.1989); Hill v. Lockhart,
2We note that in Murray v. Giarratano, 492 U.S. 1, 109 S.Ct.
2765, 106 L.Ed.2d 1 (1989), the Supreme Court held that prisoners
have no constitutional right to counsel in habeas proceedings.
Accordingly, our task is confined to statutory interpretation.
321 U.S.C. § 848(q)(10) authorizes the payment of fees to
attorneys appointed under § 848(q)(4)(B).
4

992 F.2d 801, 803 (8th Cir.1993). The Eleventh Circuit emphasized
that while section 848 is triggered by "any post conviction
proceeding under section 2254," § 2254(b) precludes § 2254 relief
until the petitioner exhausts all state remedies. Lindsey, 875
F.2d at 1506. We agree with the following statutory interpretation
of the Lindsey Court:
The words "proceeding under section 2254" must be read to
comprehend all of section 2254--especially the exhaustion
requirement of subsection 2254(b).... [Because of his failure
to exhaust, the petitioner] has not yet initiated a
"proceeding under section 2254" as that term is used in
subsection 848(q)(4)(B) and ..., consequently, his right[ ] to
the assistance of a federally appointed lawyer ... under 21
U.S.C. § 848(q) [has] not attached.
Id.
We further agree with the policy arguments of the Lindsey
Court. The court reasoned:
Acceptance of [the petitioner's] view of a state prisoner's
rights under subsection 848(q) would have the practical effect
of supplanting state-court systems for the appointment of
counsel in collateral review cases. Adherence to petitioner's
view would encourage state prisoners to ignore, as [the
petitioner] has here, the proper sequence, developed from
concerns for federalism, for seeking collateral relief from
state-court judgments in death-penalty cases. Like [the
petitioner], other state inmates, for no reason other than to
gain the assistance of federally appointed counsel ...
throughout all stages of collateral review (both state and
federal), would ignore the exhaustion requirement and, before
seeking state remedies, futilely file for federal habeas
relief. Only after procuring a federally appointed lawyer
would state inmates have an incentive to set upon the right
track in pursuit of state remedies. If Congress had intended
so novel a result, we think it would have stated so in
unmistakable terms....
Lindsey, 875 F.2d at 1506-07.4
4See Hill, 992 F.2d at 803 ("We agree with Lindsey's
analysis in cases of unexhausted claims, where comity mandates
that state judicial proceedings precede the seeking of federal
5

In short, Sterling must exhaust his state remedies pursuant to
§ 2254(b) before he can seek federally appointed and paid counsel
under § 848(q)(4)(B).5
IV
For the reasons stated above, Sterling's application for CPC
and his request for an order holding his appeal in abeyance pending
exhaustion of state remedies are
DENIED.

habeas relief.")
5Unlike the Eighth Circuit in Hill, 992 F.2d at 803, we do
not address the question of whether 21 U.S.C. § 848(q) requires
the federal government to pay for counsel to represent a state
prisoner in a postconviction proceeding for clemency before a
state executive or in a competency proceeding in state court
after remand for fact-finding by a federal court.
6