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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________________
No. 98-40881
____________________________
STEVIE DON JACKSON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________________________
July 18, 2000
Before WIENER and STEWART, Circuit Judges, and LITTLE,* District
Judge.
WIENER, Circuit Judge:
Petitioner-Appellant Stevie Don Jackson was convicted of
aggravated assaulted in Texas state court. After his application
for a federal writ of habeas corpus was denied by the district
court, we granted a certificate of appealability on the issue
"whether Jackson's attorney rendered ineffective assistance of
counsel because he failed to file a timely motion for rehearing
from Jackson's first appeal of right." Concluding that the failure
of Jackson's counsel to file a motion for rehearing or,
* District Judge of the Western District of Louisiana, sitting
by designation.

alternately, to inform him of his right to file such a motion pro
se did not constitute denial of the Sixth Amendment's guarantee of
the right to effective counsel, we affirm the district court's
denial of Jackson's application for habeas relief.
I
Implicit Wavier of Teague by the State
The retroactivity principle established by the Supreme Court
in Teague v. Lane1 "prevents a federal court from granting habeas
relief to a state prisoner based on a rule announced after his
conviction and sentence became final."2 In this case, Texas
implicitly waived a Teague defense to Jackson's habeas petition by
failing to raise the issue in the district court. Nevertheless,
for the first time on appeal Texas urges us to apply Teague to
Jackson's petition. We conclude that, absent compelling reasons to
the contrary, a federal court should apply Teague even when it has
been implicitly waived by the State.
A federal court has the power to consider a Teague defense
even when it has not been advanced by the State.3 We have been
confronted with the issue whether to apply Teague despite the
State's failure to argue it at least three times. On one of those
occasions we exercised our discretion to apply Teague "because it
1 489 U.S. 288 (1989).
2 Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
3 Id.
2

was the primary reason given by the district court for its
judgment"4 and on another we did so "in the interests of finality
and judicial economy."5 On the one occasion that we declined to
exercise our discretion to apply Teague, we did so because, in
light of a number of extraordinary circumstances, "it was not
possible for [the defendant] to raise [his claim] on direct
appeal."6 Even though these decisions clearly reaffirm our power
to raise Teague sua sponte, they provide little explanation and
thus little guidance concerning the circumstances under which the
discretionary post-waiver application of Teague is proper.
The retroactivity principle established in Teague was
motivated in the first instance by concerns about the evenhanded
and uniform application of justice. Teague held that "new rules
should always be applied retroactively to cases on direct review,
but that generally they should not be applied retroactively to
criminal cases on collateral review."7 The Court recognized that
because direct and collateral review play markedly different
institutional roles within our system of justice, each involves
4 Wilkerson v. Whitley, 28 F.3d 498, 504 (5th Cir. 1994) (en
banc) (Teague defense implicitly waived by State on appeal).
5 Fisher v. State of Texas, 169 F.3d 295, 305 (5th Cir. 1999).
6 Blankenship v. Johnson, 118 F.3d 312, 317 (5th Cir. 1997).
7 489 U.S. at 303 (emphasis added); see also Griffith v.
Kentucky, 479 U.S. 314, 322 (1987) ("failure to apply a newly
declared constitutional rule to criminal cases pending on direct
review violates basic norms of constitutional adjudication").
3

different fairness and policy concerns. The Court determined the
appropriate retroactivity rule for each type of review "by
focusing, in the first instance, on the nature, function, and scope
of the adjudicatory process in which [each] arise[s]."8 The Court
8 Id at 306-07.
4

emphasized above all else the importance of applying the
retroactivity rules uniformly and consistently within each class of
appeals, so as to avoid an unjust "disparity in the treatment of
similarly situated defendants."9
The Teague court's conclusion that new constitutional rules
should not be applied retroactively on habeas review was grounded
in concerns about finality and comity that uniquely arise in the
context of collateral attack on a state court's final judgment of
conviction.10 Comity concerns are invoked to prevent federal
interference in matters of vital concern to the states;
accordingly, rules that are created to foster comity are
traditionally made waivable by the states on a case-by-case basis.11
9 Id at 303-05 (deploring the "unequal treatment of those who
were similarly situated" under the retroactivity rules applied by
the Court prior to Teague and noting that the "selective
application of new rules violates the principle of treating
similarly situated defendants the same.").
10 "The costs imposed upon the States by a retroactive
application of new rules of constitutional law on habeas corpus
generally far outweighs the benefits of this application. In many
ways the application of new rules to cases on collateral review may
be more intrusive than the enjoining of criminal prosecutions, for
it continually forces the States to marshal resources in order to
keep in prison defendants whose trials and appeals conformed to
then-existing constitutional standards." Id at 310 (quotations,
citations and punctuation omitted). Moreover, "[a]pplication of
constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality which
is essential to the operation of our criminal justice system." Id
at 309.
11 See, e.g., Florida Prepaid Postsecondary Ed. Expense Bd v.
College Savings Bank, 527 U.S. 627, __, 119 S.Ct. 2199, 2204
(noting the ability of states to waive Eleventh Amendment
immunity).
5

Concerns about the finality of judgments and the evenhanded
application of justice, however, are invoked for the purpose of
protecting the philosophical and moral foundations of our entire
judicial system. Every state ought to be concerned with preserving
those foundations, but the interests in question are not unique to
any particular state and therefore are not properly entrusted to
the keeping of the states on a case-by-case basis.
Teague recognized that treating similarly situated defendants
differently exacts an unavoidable moral cost on our judicial
system. Teague's goal of achieving the uniform dispensation of
justice cannot be achieved, however, unless the courts take it on
themselves to apply a single retroactivity standard uniformly.
Thus, the Teague nonretroactivity rule is not an affirmative
defense in the traditional sense of that term; rather, it is a
vehicle for the vindication of a fundamental principle of justice.
The Supreme Court acknowledged as much in Caspari when it ruled
that federal courts may raise the Teague rule sua sponte.12 As
Teague was designed to replace a discretionary and consequently
inconsistent standard for retroactive application of new
constitutional rules on habeas review, its entire purpose would be
defeated if its post-waiver application were left entirely to the
unfettered discretion of the courts. An easily administrable
standard is required if the evenhanded application of justice is to
12 510 U.S. at 389.
6

be ensured. We conclude therefore that, absent a compelling,
competing interest of justice in a particular case, a federal court
should apply Teague even though the State has failed to argue it.
Fundamental principles of fairness are not the states' to waive.
Finding no compelling, competing interest of justice in the
instant case, we subject Jackson's appeal to a Teague analysis sua
sponte.
II
Teague Analysis
"In determining whether a state prisoner is entitled to habeas
relief, a federal court should apply Teague by proceeding in three
steps."13
First, we must determine when [Jackson's]
conviction and sentence became final for
Teague purposes. Second, we must survey the
legal landscape as it then existed and
determine whether a state court considering
the defendant's claim at the time his
conviction became final would have felt
compelled by existing precedent to conclude
that the rule he seeks was required by the
Constitution. Third, if we determine that
[Jackson] seeks the benefit of a new rule, we
must consider whether that rule falls within
one of the two narrow exceptions to the
nonretroactivity principle.14
Jackson did not file a petition for discretionary review with
the Texas Court of Criminal Appeals or a timely motion for
rehearing with the Texas Court of Appeal. Jackson's conviction
13 Id at 390.
14 Fisher, 169 F.3d at 305 (citing Caspari, 510 U.S. at 390).
7

therefore became final in May of 1996, after the times for filing
those pleadings elapsed.
"Unless reasonable jurists hearing petitioner's claim at the
time his conviction became final would have felt compelled by
existing precedent to rule in his favor, we are barred from doing
so now."15 It is clear that the precedent existing in 1996 did not
dictate a ruling in Jackson's favor. Jackson asks us to hold that
assistance provided by a criminal defendant's attorney is
ineffective per se when he fails either to file timely a motion for
rehearing or to inform the defendant of his right to file such a
motion pro se. Jackson cites no authority in support of this
proposition, but instead asks us to extend to the very different
context of a motion for rehearing, the well-established rule that
a criminal defendant has a right to representation on his first
appeal of right.16
At first blush a motion for rehearing appears to be quite
similar to a petition for discretionary appeal, and it was well
settled at the time that Jackson's conviction became final that a
criminal defendant has no Sixth Amendment right to representation
on a discretionary appeal.17 Thus, although Jackson does make a
colorable argument that his opportunity to file a motion for
15 Id (citing Graham v. Collins, 506 U.S. 461, 467 (1993).
16 Evitts v. Lucey, 469 U.S. 387, 393-94 (1985).
17 Ross v. Moffitt, 417 U.S. 600 (1974).
8

rehearing should be considered the last step in his first appeal of
right, a holding to that effect would surely create a new rule of
constitutional law. Thus, unless Jackson's petition for a writ of
habeas corpus meets one of the narrow exceptions to the Teague
rule, we are barred by Teague from considering his claim.
"Teague provides that a new constitutional rule can apply
retroactively on federal collateral review only if the new rule (1)
puts certain kinds of primary, private conduct beyond the power of
the criminal law-making authority to proscribe or (2) is a rule of
procedure that is implicit in the concept of ordered liberty."18
The second Teague exception "is reserved for watershed rules of
criminal procedure that implicate the fundamental fairness and
accuracy of the proceeding."19 The new constitutional rule Jackson
asks us to recognize obviously fails to qualify for either of these
exceptions. Nevertheless, we conclude that a third narrow
exception to Teague, heretofore unrecognized by the courts,
justifies our deeper consideration of Jackson's claim.
When an alleged constitutional right is susceptible of
vindication only on habeas review, application of Teague to bar
full consideration of the claim would effectively foreclose any
opportunity for the right ever to be recognized. Jackson's
petition asserts just such a right: A state criminal defendant
18 Fisher, 169 F.3d at 306 (quotations omitted).
19 Id (citation omitted).
9

could never raise a claim on direct appeal that he had been denied
effective assistance of counsel by his appellate attorney's failure
to file a timely motion for rehearing. If a criminal defendant
were to raise such a claim on direct appeal from the judgment of an
intermediate court of appeals, the only relief to which he could
possibly be entitled would be reconsideration of that court's
decision. But by agreeing to hear the defendant's direct appeal,
a higher court would already have granted the defendant precisely
that relief. Thus, the very act of the higher court in accepting
the defendant's direct would render the defendant's ineffective
assistance of counsel claim moot, foreclosing any opportunity for
the defendant's Sixth Amendment right to counsel ever to be passed
upon.20
Because the constitutional question presented by Jackson could
be raised only on collateral review, we are obliged to give serious
consideration to the merits of Jackson's claim. We now proceed to
do so.
III
The Right to Counsel on a Motion for Rehearing
Jackson asks us to hold that he received ineffective
assistance of counsel on direct appeal because his attorney failed
20 See Brown v. Liberty Loan Corp. of Duval, 539 F.2d 1355, 1358
(5th Cir. 1976) ("An actual case or controversy must exist, of
course, when a suit is instituted and at all stages of appellate
review in order to avoid mootness."); Dresser Industries, Inc. v.
United States, 596 F.2d 1231 (5th Cir. 1979) (case becomes moot on
appeal once appellant has received all of the relief requested).
10

(1) to file a motion for rehearing or, alternately, (2) to inform
Jackson of his right to file such motion pro se. Jackson cannot
have received constitutionally deficient counsel on his motion for
rehearing, however, if he had no constitutional right to counsel
for purposes of filing a rehearing motion.21 "A criminal defendant
does not have a constitutional right to counsel to pursue
discretionary state appeals."22 When a state grants a criminal
defendant an appeal of right, the Constitution requires only that
the defendant's claims be "once... presented by a lawyer and passed
upon by an appellate court."23 Not only does a motion for rehearing
come after the appellate court has passed on the claims; there can
be no question that the granting of a motion for rehearing lies
entirely within the discretion of a court of appeals. Rehearing at
that point is by no means an appeal of right.
We conclude that a criminal defendant has no constitutional
right to counsel on matters related to filing a motion for
rehearing following the disposition of his case on direct appeal.
We therefore affirm the district court's denial of Jackson's
application for a writ of habeas corpus.
AFFIRMED
21 See Wainright v. Torna, 455 U.S. 586, 587-88 (per curiam)
(1982) ("Since respondent had no constitutional right to counsel,
he could not be deprived of the effective assistance of counsel by
his retained counsel's failure to file the application timely.").
22 Id at 587 (citing Ross v. Moffitt, 417 U.S. 600 (1974).
23 Ross, 417 U.S. at 614.
11