Richard Andrade, Petitioner-appellant, v. O.l. Mccotter, Director, Texas Department of Corrections,respondent-appellee, 807 F.2d 398 (5th Cir. 1986)

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U.S. Court of Appeals for the Fifth Circuit - 807 F.2d 398 (5th Cir. 1986) Dec. 16, 1986

Richard Andrade, pro se.

Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas; Hayden W. Head, Jr., Judge.

On Request for Certificate of Probable Cause and Motion for

Stay of Execution

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

Prior Report: 700 S.W.2d 585.

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 Andrade 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. foll. Sec. 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.