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In re Goff

Ineffective assistance of counsel in a post-conviction proceeding cannot serve as cause to excuse default in a federal habeas proceeding.

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Motion for an order authorizing the United States District Court for the Northern District of Texas, Fort Worth Division, to consider a successive habeas 28 U.S.C. � 2254 application, and Motion for stay of execution

David Lee Goff, convicted of capital murder by the State of Texas in November 1991, has filed a motion in this court for permission to file a second federal habeas petition and a motion for stay of execution. Goff’s initial request for a Certificate of Appealability was denied by this court on September 8, 2000. Goff v. Johnson, No. 99-10305 (5th Cir. Sept. 8, 2000). In his motion for permission to file a successive petition, Goff claims that his initial state habeas counsel was ineffective for failing to raise critical issues as to the ineffectiveness of his trial counsel to investigate alibis. As a result, Goff claims that he was foreclosed from raising the ineffectiveness issue in his first federal habeas petition. Because his state habeas counsel was ineffective, Goff argues that his claim for relief falls within an exception to the ban on successive federal habeas filings outlined in the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. � 2244(b)(2).

The factual and procedural history of this case can be found in the Texas Court of Criminal Appeals’ decision affirming Goff’s conviction and sentence. Goff v. State, 931 S.W.2d 537 (Tex. Cr. App. 1996). Briefly, the evidence shows that on September 1, 1990, Goff stopped by the home of a friend, Craig Ford, and offered to give Ford a ride to his mother’s house. Ford followed Goff out to a blue panel van. The victim was sitting in the driver’s seat of the van. Ford sat in the rear of the van and Goff sat in the passenger seat.

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