807 F.2d 398

Richard ANDRADE, Petitioner-Appellant,
v.
O.L. McCOTTER, Director, Texas Department of Corrections,
Respondent-Appellee.

No. 86-6016.

United States Court of Appeals,
Fifth Circuit.

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:

1

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.

2

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).

3

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.

4

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.

5

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.