ORDER
KIMBERLY MUELLER, Magistrate Judge
Petitioner has requested the appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner,
Ex parte Campbell, <#BOGUS>105 F.3d 453, 460 19th Cir. 1996). However,
18 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case "if the interests of justice so require."
See Rule 8(c), Fed.R. Governing § 2254 Cases. In the present case, the court does not find that the interests of justice would be served by the appointment of counsel at the present time.
Accordingly, IT IS HEREBY ORDERED that petitioner's request for appointment of counsel (Docket No. 26) is denied without prejudice to a renewal of the motion at a later stage of the proceedings.
226 S.W.3d 418, 421 (Tex.Crim.App. 2007) ("We have interpreted [§ 5(a) ] to mean that . . . 1) the factual or legal basis for an applicant's current claims must have been unavailable as to all of his previous applications; and 2) the specific facts alleged, if established, would constitute a constitutional violation that would likely require relief from either the conviction or sentence.").
Maldonado argues that because the TCCA dismissed under § 5(a) without specifying whether dismissal was premised on a failure to satisfy state procedural law or the federal merits, we must presume that dismissal was premised on the merits. In support, he cites Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), in which we concluded that no adequate and independent state procedural basis for dismissal could be discerned from the TCCA's "boilerplate" dismissal under § 5(a). Ruiz, however, is distinguishable. There, it was plain that an assessment of the merits played a significant role in the dismissal. One TCCA panelist filed a concurring opinion concluding that Ruiz did not allege a meritorious Sixth Amendment claim. Two other panelists filed a dissent from the dismissal, urging the merits of the Sixth Amendment claim. Id. at 528.
As the district court recognized, the facts of this case are much more like those that we addressed in Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008), where, as here, the TCCA dismissed under § 5(a) without specifying the basis for dismissal. We concluded that an adequate and independent state procedural basis for dismissal was evident because it was plain that the factual and legal bases for the petitioner's claims were available well before he filed his subsequent habeas application, and because there was "nothing in [the TCCA's] perfunctory dismissal of the claims that suggest[ed] that it actually considered or ruled on the merits." Id. at 342. Maldonado has never, in this court or before the district court, contended that the factual or legal bases for these Fifth and Sixth Amendment claims were unavailable when he filed his initial habeas petition, and there is no basis in the record to conclude that they were. See Maldonado v. Thaler, 662 F.Supp.2d at 745 ("[T]he factual basis for Maldonado's barred claims were obviously available well before he filed his successive state habeas proceeding."). And there is no basis in the TCCA's terse dismissal to infer that the court considered or ruled on the federal merits.
Accordingly, we conclude that the dismissal of Maldonado's subsequent habeas application was premised on an adequate and independent state procedural ground. Cf. Coleman, 501 U.S. at 737, 739-40, 111 S.Ct. 2546 ("In those cases in which it does not fairly appear that the state court rested its decision primarily on federal grounds, it is simply not true that the `most reasonable explanation' is that the state judgment rested on federal grounds." "In the absence of a clear indication that a state court rested its decision on federal law, a federal court's task will not be difficult."). Maldonado's application for a COA on these issues is denied.
IV. CONCLUSION
For the reasons discussed above, we GRANT Maldonado's application for a COA on the issue of whether he is mentally retarded, rendering him ineligible for the death penalty under Atkins. The parties are directed to submit supplemental briefing on this issue in advance of oral argument on a schedule to be established by the Clerk. Maldonado's application for a COA as to all other claims is DENIED.