Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Marion Butler Dudley, who is scheduled to be executed after 6 p.m. Wednesday, January 25, 2006. The Tuscaloosa, Alabama, native was sentenced to death for capital murder in the deaths of four people who were shot to death at a southwest Houston residence in 1992. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

Marion Butler Dudley, who lived in Tuscaloosa, Alabama, occassionally traveled to Houston to buy drugs from Rachel and Jose Tovar. On June 20, 1992, Dudley and three men drove from Tuscaloosa to Houston. After arriving, Dudley and one of the men went to the Tovar residence and asked for three kilograms of cocaine. Rachel Tovar told the men she did not have the cocaine and asked them to come back later.

Dudley and the other man returned to the Tovar residence a few hours later and the Tovars showed them a kilogram of cocaine. The men were told more cocaine could be obtained, so the pair left. At dusk, Dudley and two men returned and tied up the Tovars and four other people in the home. All six were shot in the head. Four of the victims died. Killed were Jose Tovar, Jessica Quinones, Frank Farias, and Audrey Brown. The two survivors identified Dudley as one of their attackers.

CRIMINAL HISTORY AND PUNISHMENT EVIDENCE

The State produced evidence that in January of 1991, Dudley was pulled over for having an expired license tag and was observed reaching toward the front seat floorboard where the officer subsequently located a .38 caliber pistol. The State also produced evidence that Dudley had been arrested by Tuscaloosa police officers for possession of crack cocaine and had given a false identity upon that arrest. Several police officers with the Tuscaloosa Police Department testified that Dudley’s reputation for being a peaceful and law abiding person was bad. The State also presented evidence that Dudley had a felony conviction in Alabama for possession of marijuana, and had attempted to escape when the officer arrested him.

Several witnesses testified about an incident in which Dudley and a friend, after arguing over the cost of cocaine which Dudley was selling, drove through a neighborhood exchanging gunfire between their automobiles. The superintendent for the Tuscaloosa Board of Education testified that as a juvenile Dudley was expelled from school because he was involved in an altercation in which another student was stabbed. Cecil Hopkins, Dudley’s Tuscaloosa County Juvenile Probation Officer testified that Dudley was placed on probation for a second-degree felony of receiving stolen property and that his probation was revoked for violating curfew. The officer further testified that Dudley also incurred further violations of probation for the offenses of burglary of a vehicle, first- degree assault and another offense of receiving stolen property.

Harry McRae, a Tuscaloosa Sheriff’s Department deputy, testified that Dudley had participated in a home invasion-type robbery on April 20, 1992, just two months prior to the 1992 capital murders in Houston.

Procedural History

After his capital murder conviction and sentence of death were affirmed by the Texas Court of Criminal Appeals on direct appeal, Dudley filed an application for writ of habeas corpus in state court raising eleven claims of constitutional error. The state habeas court issued findings of fact and conclusions of law and recommended that relief be denied. After its own independent review of the record, the Texas Court of Criminal Appeals adopted those findings and conclusions and denied relief. Two years after the filing of his first state habeas petition, Dudley filed a supplemental state habeas writ alleging two additional claims for relief. The Court of Criminal Appeals dismissed the petition as an abuse of the writ under the Texas Code of Criminal Procedure.

Dudley filed a skeletal federal petition for writ of habeas corpus in the federal district court on May 4, 2001, and filed a supplemental petition on July 20, 2001. On September 25, 2002, the district court denied Dudley’s petition for federal habeas relief in a combination of procedural and substantive rulings each supported by well-established law.

Dudley filed an application for Certificate of Appealability (“COA”) on June 5, 2003. The 5th U.S. Circuit Court of Appeals denied Dudley’s application for COA on October 10, 2003.

On Jan. 10, 2006, Dudley filed a successive state habeas writ in the Texas Court of Criminal Appeals, which denied it ten days later. On Jan. 23, 2006, Dudley filed a petition for writ of certiorari in the U.S. Supreme Court. On Jan. 24, the Supreme Court declined to intervene.

Fort Worth Star Telegram

"Alabama man executed for Texas slayings," by Michael Graczyk. (Associated Press Wed, Jan. 25, 2006)

HUNTSVILLE, Texas - An Alabama man who was part of a ring that shuttled drugs from Texas to his home state was executed Wednesday for the slayings of four people in Houston nearly 14 years ago. When asked by a warden if he had any final statement, Marion Dudley did not respond, kept his eyes closed and never turned his head toward witnesses in the chamber, which included one of his survivors and relatives of one of the people killed. Eight minutes later at 6:16 p.m. CST, he was pronounced dead.

Prison officials said while he wasn't combative, Dudley had to be carried to the chamber by officers after he refused to leave a death house cell voluntarily.

Dudley, 33, of Tuscaloosa, Ala., had said he wasn't at the house the night of June 20, 1992, where six people were shot, four of them fatally, in what authorities said was a drug dealer ripoff. Dudley, who had record in his home state for burglary, assault, receiving stolen property and violating probation, was the first Texas inmate put to death this year. Nineteen convicted killers were executed in 2005 as Texas maintained its notoriety as the nation's most active capital punishment state. Another inmate is set for lethal injection next week and three more next month. They are among more than a dozen Texas prisoners with execution dates in the first five months of this year.

Dudley's lawyer had hoped the U.S. Supreme Court would stop his punishment, arguing prosecutors improperly withheld from defense attorneys at his capital murder trial a letter to Alabama parole officials regarding an inmate from that state who testified against Dudley. But the high court rejected the appeal a few hours before the execution.

The two survivors identified the then 20-year-old Dudley as one of the three gunmen who barged into the home of Jose Tovar, 32, and his wife, Rachel, then 33. In a recent interview on death row, Dudley said they were wrong. "I was not," he said.

Jose Tovar was fatally shot in the head, as were his wife's son, Frank Farias, 17; Farias' girlfriend, Jessica Quinones, 19, who was seven months pregnant; and a neighbor Audrey Brown, 21, who had just stopped by to visit. Rachel Tovar and another friend, Nicholas Cortez, 22 at the time, survived. All the victims were bound with towels or strips of sheets, hands tied behind their backs and nooses around their necks. Rachel Tovar managed to crawl to a neighbor's house for help.

Besides Dudley, Arthur "Squirt" Brown, of Tuscaloosa, was convicted of capital murder and sentenced to death. Now 35, he remains on death row. A third man, Tony Dunson, also from Alabama and 19 at the time of the shootings, received a life sentence.

Police said the three previously had been at the Tovar house to buy drugs and knew drugs and money were there. Brown ran the ring that for nine months had been moving marijuana and cocaine from Houston to Tuscaloosa, authorities said. A mini-van used as the getaway vehicle was recovered in the Alabama city, where evidence showed they bought a new Jeep SUV with cash, eventually traveling to Louisville, Ky., and Columbus, Ohio. About 2 1/2 weeks after the shootings, Dudley and Dunson were arrested in Fayetteville, N.C.

"My number one problem was women," Dudley said from death row. "I was running around. Everything went downhill from there... I just wanted to get money, easy money. And once you start getting easy money, it's so hard to slow down."

Houston Chronicle

"First Texas inmate put to death this year." (Associated Press Jan. 25, 2006, 6:27PM)

HUNTSVILLE - An Alabama man who was part of a ring that shuttled drugs from Texas to his home state was executed today for the slayings of four people in Houston nearly 14 years ago.When asked by a warden if he had any final statement, Marion Dudley did not respond, kept his eyes closed and never turned his head toward witnesses in the chamber, which included one of his survivors and relatives of one of the people killed. Eight minutes later at 6:16 p.m. CST, he was pronounced dead. Nineteen convicted killers were executed in 2005 as Texas maintained its notoriety as the nation's most active capital punishment state. Another inmate is set for lethal injection next week and three more next month. They are among more than a dozen Texas prisoners with execution dates in the first five months of this year.

Dudley's lawyer had hoped the U.S. Supreme Court would stop his punishment, arguing prosecutors improperly withheld from defense attorneys at his capital murder trial a letter to Alabama parole officials regarding an inmate from that state who testified against Dudley. Attorney Ken McLean, however, said he wasn't optimistic. "Absolutely, it's a reach," he said. "But if it's the only thing you've got ..." A few hours before his scheduled execution time, the high court rejected the appeal.

The two survivors identified the then 20-year-old Dudley as one of the three gunmen who barged into the home of Jose Tovar, 32, and his wife, Rachel, then 33. In a recent interview on death row, Dudley said they were wrong. "I was not," he said.

Jose Tovar was fatally shot in the head, as were his wife's son, Frank Farias, 17; Farias' girlfriend, Jessica Quinones, 19, who was seven months pregnant; and a neighbor Audrey Brown, 21, who had just stopped by to visit. Rachel Tovar and another friend, Nicholas Cortez, 22 at the time, survived. All the victims were bound with towels or strips of sheets, hands tied behind their backs and nooses around their necks. Rachel Tovar managed to crawl to a neighbor's house for help.

Besides Dudley, Arthur "Squirt" Brown, of Tuscaloosa, was convicted of capital murder and sentenced to death. Now 35, he remains on death row. A third man, Tony Dunson, also from Alabama and 19 at the time of the shootings, received a life sentence. Police said the three previously had been at the Tovar house to buy drugs and knew drugs and money were there. Brown ran the ring that for nine months had been moving marijuana and cocaine from Houston to Tuscaloosa, authorities said. A mini-van used as the getaway vehicle was recovered in the Alabama city, where evidence showed they bought a new Jeep SUV with cash, eventually traveling to Louisville, Ky., and Columbus, Ohio. About 2 1/2 weeks after the shootings, Dudley and Dunson were arrested in Fayetteville, N.C.

"My number one problem was women," Dudley said from death row. "I was running around. Everything went downhill from there... I just wanted to get money, easy money. And once you start getting easy money, it's so hard to slow down."

ABC13-TV

"Woman to watch family members' killer be executed." (January 25, 2006)

Marion Dudley is scheduled to die by lethal injection tonight in Huntsville.

Some still blame Tovar because she helped her husband, Jose, deal cocaine. Dudley was one of their buyers until he decided to eliminate the middleman, who was Jose. But Dudley and two other men ended up killing Tovar's husband, son, her other's son's pregnant girlfriend, and a family friend. "After I heard that gun go off, it went off again and I heard the screams and I knew they were killing my babies," said Tovar.

Tovar was shot in the back of the head and survived to testify and helped send two of the killers to death row. Dudley's execution is Wednesday, and on Tuesday, Tovar was granted permission to watch him die.

"I just feel I need to be there for my family, for loved ones that are gone, so they can be at ease," she said. Still she admits that will not bring her peace. It will not make her forget. "I always ask, "Am I ever gonna be happy again?'"

Dudley is asking the US Supreme Court to delay his execution and take a look at new evidence. But if the court says no, the killer will likely take his last breath Wednesday.

As far as the other two killers in this case, Antonia Dunson, 33, is serving a life sentence. Arthur Brown, 35, is on death row with Dudley, awaiting an execution date. Tovar wants to watch him die, too.

ProDeathPenalty.com

An execution date has been scheduled in the capital murder conviction against an Alabama man involved in the slaughter of 4 people in a Houston drug house. Marion Butler Dudley was sentenced to death for the June 20, 1990, slayings, which occurred during a drug deal involving some of the victims; 2 other people were shot but survived their wounds. According to the evidence, Dudley and 3 other men drove from Tuscaloosa, Alabama, to Houston to buy cocaine from Rachel and Jose Tovar. Instead of buying drugs, the 4 men tied the Tovars and 4 other people in their home with strips of sheet and demanded money. All 6 victims were then shot in the head. Rachel Tovar and 1 other victim survived. The dead included Jose Tovar; Rachel's son, Farnak Farias, and daughter-in-law, Jessica Quinones; and a neighbor, Audrey Brown.

Texas Execution Information Center by David Carson.

Marion Butler Dudley, 33, was executed by lethal injection on 25 January 2006 in Huntsville, Texas for the murder of four people in a drug house.

Marion Dudley ran a drug operation in Tuscaloosa, Alabama. On 20 June 1992, Dudley, then 20, and three other men drove to Houston to buy cocaine from Jose and Rachel Tovar. Dudley had bought cocaine and marijuana from the Tovars on several occasions in the past. When they arrived, the Tovars told them that the didn't have the quantity of cocaine that they wanted - three kilograms - but they could get more. After a few hours, the men returned, but were told again that it would take more time for them to get the quantity they wanted.

Around dusk, Dudley returned with Arthur Brown, 21, and Antonio Dunson, 19. Armed with pistols, the three men rounded up Jose Tovar and three other people who were in the home - Rachel's son, Frank Farias, 17; Farias's pregnant girlfriend, Jessica Quinones, 19; and neighbor Audrey Brown, 21. Rachel Tovar then entered the home and was met by Dunson, who led her in at gunpoint with the other victims. The men then began using strips of bedsheets to tie up their victims. Nicholas Cortes, a friend of the family, was also tied up and robbed when he stopped by for a visit. The victims were tied with their hands behind their backs, and nooses around their necks, and placed in separate rooms. All six were then shot in the head. Jose Tovar and Frank Farias were killed. Rachel Tovar and Nicholas Cortes regained consciousness after a while and found Jessica Quinones and Audrey Brown still alive. Tovar crawled to a neighbor's house for help and called police. Quinones died before the police arrived. Brown died later at a hospital.

The killers evaded capture for several months. On 12 August 1992, Dudley and Dunson were arrested in North Carolina while hiding in a mobile home. They had $30,000 in cash on them at the time of their capture. Brown was arrested later in Tuscaloosa.

The two surviving victims identified Dudley as one of their assailants and testified against him at his trial. One of them testified that minutes before the six were shot, Dudley told Jose Tovar, "You stupid Mexican, I never did like you." Prosecutors claimed that the drug buy was a ruse, and that Dudley's true intention was to eliminate the Tovars from his drug operation, seeing them as unnecessary middlemen. Rachel Tovar also said that Dudley told Quinones, "You stupid (expletive), don't you go into labor on me."

Dudley had a prior history of drug possession, illegally carrying a weapon, burglary of a vehicle, assault, receiving stolen property, giving false identification, and attempting to flee from police. He had a felony conviction in Alabama for marijuana possession. Witnesses also testified that he had committed a drive-by shooting. A Tuscaloosa sheriff's deputy testified that Dudley had participated in a home invasion robbery on 20 April 1992, two months before the Houston murders.

A jury convicted Dudley of capital murder and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 1997. All of his subsequent appeals in state and federal court were denied.

Arthur Brown Jr. was also convicted of capital murder and sentenced to death. He is on death row as of this writing. Antonio Lamone Dunson was convicted of capital murder and given a life sentence. He remains in prison as of this writing.

In an interview from death row, Dudley acknowledged that he dealt drugs. "Once you start getting easy money, it's so hard to slow down," he said. He denied being at the Tovar home when the murders occurred.

Dudley did not make a last statement at his execution. He was pronounced dead at 6:16 p.m.

National Coalition to Abolish the Death Penalty

Do Not Execute Marion Butler Dudley!

Marion Butler Dudley - Texas - January 25, 2006

Marion Butler Dudley, a black man, awaits execution in Texas for the June 20, 1992 shooting deaths of three people in a Houston drug house. The victims include Jose Tovar, a Hispanic man; Jessica Quinones, a Hispanic woman and daughter-in-law of Tovar; and Frank Farias, another Hispanic man and the son of a survivor of the shootings. Rachel Tovar and two other victims survived the shootings to identify Dudley as one of the attackers.

After arriving at the home of Rachel and Jose Tovar with the intent to purchase cocaine, the defendant and two others decided to steal drugs and money from the home. The three men tied up the occupants of the house, demanded money, and then shot the victims.

Marion Dudley was 20 years old at the time of the crime; he had no prior record. Dudley had not been educated beyond tenth grade. Therefore Dudley may have been particularly susceptible to the pressure to become involved in drugs. Furthermore, Dudley is a reasonable candidate for a life sentence. He is young and so may perhaps be rehabilitated. Alive, in prison and rehabilitated, Dudley may begin to be an asset in the community by talking to other at-risk youth. There is no way to know what such a young man could still do, even while serving a life sentence.

The death penalty is a cruel, inhuman, and unusual punishment. Evidence of the effectiveness of the death penalty as a means of deterrence is inconclusive at best. Finally the death penalty is an arbitrary and racially discriminate punishment that cannot be reversed or amended. The execution of Dudley will not remedy the tragic loss of life on June 20, 1992. Instead another family will lose a loved one.

Please write Gov. Rick Perry requesting that he stop the execution of Marion Dudley.

The Age

"Death row man carried to his execution." (January 26, 2006 - 1:17PM)

Huntsville, Texas - A man who murdered four people in a Texas drug dealer rip-off was carried to his execution today when he refused to leave a Texas jail's death house cell voluntarily. Asked by a warden if he had any final statement, Marion Dudley did not respond.

Dudley, 33, of Tuscaloosa, Alabama, had earlier said he wasn't at the house on June 20, 1992, where six people were bound and then shot, four of them fatally, in what authorities said was a drug dealer rip-off. He kept his eyes closed and never turned his head toward witnesses in the chamber, which included one of the survivors of the shooting and relatives of one of the people killed. Eight minutes later at 6.16pm CST (11.16 AEDT Thursday), he was pronounced dead.

Prison officials in Huntsville, Texas, said Dudley was not combative, but that he wouldn't walk to the execution on his own. Dudley, who had a record in his home state for burglary, assault, receiving stolen property and violating probation, was the first Texas inmate put to death this year. Nineteen convicted killers were executed in 2005 as Texas maintained its notoriety as the nation's most active capital punishment state. Another murderer is set for lethal injection next week and three more in February. They are among more than a dozen Texas prisoners with execution dates in the first five months of this year.

Dudley's lawyer had hoped the US Supreme Court would stop his punishment, arguing prosecutors improperly withheld from defence lawyers at his capital murder trial a letter to Alabama parole officials regarding an inmate from that state who testified against Dudley. But the high court rejected the appeal a few hours before the execution.

The two survivors identified the then 20-year-old Dudley as one of the three gunmen who barged into the home of Jose Tovar, 32, and his wife, Rachel, then 33. In a recent interview on death row, Dudley said they were wrong. "I was not," he said.

Jose Tovar was fatally shot in the head, as were his wife's son, Frank Farias, 17; Farias' girlfriend, Jessica Quinones, 19, who was seven months pregnant; and a visiting neighbour Audrey Brown, 21. Rachel Tovar and another friend, Nicholas Cortez, then 22, survived. All the victims were bound with towels or strips of sheets, hands tied behind their backs and nooses around their necks. Rachel Tovar managed to crawl to a neighbour's house for help.

After watching Dudley die, Tovar, 48, said she "can be at peace, knowing that I represent my family, my children, my husband". "There's a little relief in me," she said, tears running down her face. But, "I lived this going on 14 years and there's not ever going to be something to help me forget it. It's never going to go away."

Maricella Quinones, whose sister died in the gunfire, said the execution didn't match her sister's suffering.

Fight the Death Penalty in the USA

Marion Dudley (ALIVE e.V. - Voices From Inside)

Hi,
my name is Marion Dudley and I would like to find pen-pals from Europe.

I've been on Death row for six years now, fighting my case via appeals every step of the way.

My days are filled with meditation, yoga, reading, writing poetry and short stories about a variety of subjects. I also edit a newsletter about Death Row that I created a couple of years ago.

I will close for now and await a response.

Sincerely

Marion Dudley # 999136
Polunsky Unit
3872 F.M. 350 South
Livingston, TX 77351 USA

ABOLISH Archives

Rick Halperin (rhalperi@POST.CIS.SMU.EDU)
Thu, 5 Jun 1997 13:59:27 -0500

TEXAS:

The Texas Court of Criminal Appeals has upheld the capital murder conviction against an Alabama man involved in the slaughter of 4 people in a Houston drug house.

Marion Butler Dudley was sentenced to death for the June 20, 1990, slayings, which occurred during a drug deal involving some of the victims; 2 other people were shot but survived their wounds.

According to the evidence, Dudley and 3 other men drove from Tuscaloosa, Alabama, to Houston to buy cocaine from Rachel and Jose Tovar. Instead of buying drugs, the 4 men tied the Tovars and 4 other people in their home with strips of sheet and demanded money. All 6 victims were then shot in the head.

Rachel Tovar and 1 other victim survived. The dead included Jose Tovar; Rachel's son, Farnak Farias, and daughter-in-law, Jessica Quinones; and a neighbor, Audrey Brown.

Dudley cited 9 points of alleged trial in his appeal, claiming the evidence was insufficient to support either the guilty verdict or the sentence of death. The Court of Criminal Appeals rejected each point.

Last December, the court upheld the conviction and death sentence against Arthur Brown, 1 of Dudley's accomplices in the killings.

Dudley v. Dretke, 77 Fed.Appx. 741 (5th Cir. 2003) (Habeas)

State prisoner filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas dismissed petition, and petitioner applied for issuance of certificate of appealability (COA). The Court of Appeals held that: (1) petitioner's claim that state trial court violated his right to counsel by replacing his original trial counsel was procedurally barred, and (2) ineffective assistance of counsel on state habeas review did not provide cause for procedural default. Application denied.

PER CURIAM.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Marion Butler Dudley (“Dudley”) seeks the issuance of a Certificate of Appealability (“COA”) to appeal the district courts's dismissal of his 28 U.S.C. § 2254 claim. Dudley claims the district court incorrectly found three of Dudley's habeas claims to be procedurally defaulted. The three claims Dudley seeks a COA for include: 1) that the trial court erred in replacing his original counsel; 2) that his trial counsel did not provide effective assistance when they failed to investigate and present mitigating evidence; and 3) that the evidence to support his death penalty sentence was constitutionally deficient.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a COA may issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard for issuing a COA under AEDPA is whether, “jurists of reason could debate whether ··· the petition should have been resolved in a different manner····” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. However, the COA determination only “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1032, 154 L.Ed.2d 931 (2003). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. The issuance of a COA is not pro forma or a matter of course, and the petitioner must still show that the claim is debateable. Id. at 1040.

The district court found Dudley's claim that the state trial court violated his Sixth Amendment right to counsel by replacing his original trial counsel was procedurally barred because his initial state habeas petition did not include a claim relating to the replacement of his trial counsel. After the state trial habeas court entered its proposed findings of facts and conclusions of law, Dudley sought to add two claims relating to the replacement of his original counsel. The state habeas court construed this as a successive habeas application. The Texas Court of Criminal Appeals agreed and dismissed the application as an abuse of the writ. “[A] state procedural default of any federal claim will bar federal habeas unless the petitioner demonstrates cause and actual prejudice.” Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Dudley argues that inadequate representation from his state habeas counsel constitutes cause for this procedural default. “Attorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation····” Coleman, 501 U.S. at 753. Furthermore, there is no constitutional right to an attorney in post-conviction proceedings, therefore a petitioner cannot claim constitutionally ineffective counsel in such proceedings. Coleman, 501 U.S. at 752 ( citing Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982); Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989).).

The district court found two of Dudley's claims were procedurally barred because those claims were not raised in his state habeas petition: Dudley's claim that his trial counsel provided ineffective assistance of counsel when they failed to investigate and present mitigating evidence and his claim that the evidence to support his death penalty conviction was constitutionally insufficient. An applicant for federal habeas must “first present those claims to the state court and must exhaust state remedies.” Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.2001). 28 U.S.C. § 2254(b). Unexhausted claims are procedurally barred, but a federal habeas petitioner can overcome this procedural bar by “demonstrat[ing] cause for the defaults and actual prejudice.” Martinez, 255 F.3d at 239.

Dudley claims his state habeas counsel was not competent which he claims provides adequate cause for his failure to present his unexhausted claims to the state courts. “Attorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation” Coleman, 501 U.S. at 753. In Martinez this Court held an ineffective assistance of counsel claim was procedurally barred because it was not presented to the state court either at trial or in the state habeas claim. Martinez, 255 F.3d at 240-41. Specifically Martinez held “ineffective assistance of habeas counsel cannot provide cause for a procedural default.” Id. at 241. Without a showing of cause, a state procedural default of a federal claim acts to bar federal habeas. Coleman 501 U.S. at 748.

“Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484. Reasonable jurists could not disagree that the district court properly invoked the procedural bar for each of the three claims Dudley raises in his application for a COA. Therefore the application for a Certificate of Appealability is DENIED.