RICHARD ANDRADE, PETITIONER-APPELLANT,
v.
O.L. MCCOTTER, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE

5th Cir. | 1986-12-16
No. 86-6016
807 F.2d 398 Court of Appeals for the Fifth Circuit (1986)
Cited by 10 cases

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Holding

The court held that the petitioner failed to make a substantial showing of the denial of a federal right and denied the certificate of probable cause.


Facts & Procedural History

Richard Andrade filed a pro se pleading seeking a writ of habeas corpus, stay of execution, and certificate of probable cause. The district court deni…

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Opinion of the Court
POLITZ, Circuit Judge:

POLITZ, Circuit Judge:

The matter is now before this court, precipitated by a pro se pleading which we shall consider to be a notice of appeal, a request for a certificate of probable cause, and a request for a stay of execution.

The district court denied Richard Andrade’s “second and eleventh hour” application for a writ of habeas corpus, stay of execution, and request for a certificate of probable cause, finding that petitioner had failed to make a substantial showing of the denial of a federal right. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

We glean from the pleadings that An-drade raises a sixth amendment ineffective assistance of counsel claim. The district court rejected that claim because Andrade failed to allege any facts that would constitute a violation of the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We agree.

Further, the district court found this application to be an abuse of the writ. 28 U.S.C. foil. § 2254, Rule 9(b). Having concluded that Andrade has failed to make a substantial showing of the denial of a federal right, we must deny the requested certificate of probable cause, Barefoot v. Estelle, and therefore do not reach this issue.

The request for a certificate of probable cause is DENIED; the motion for stay of execution is DENIED; the judgment of the trial court stands AFFIRMED.


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