Saahir v. Collins

• Decision Date: 25 March 1992
• Docket Number: No. 91-1323,91-1323
• Citation: 956 F.2d 115
• Parties: Jihaad A.M.E. SAAHIR, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 115

956 F.2d 115

Jihaad A.M.E. SAAHIR, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 91-1323

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

March 25, 1992.

Tomas Garza, Garza & Hernandez, Lubbock, Tex. (Court-appointed), for petitioner-appellant.

Charles A. Palmer, Asst. Atty. Gen., Dan Morales, Atty. Gen., Enforcement Div., El Paso Regional Offc., El Paso, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, DUHE, and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The district court dismissed Jihaad Saahir's successive federal habeas corpus petition for abuse of the writ. His appeal poses a question left undecided by Woods v. Whitley, 933 F.2d 321, 324 n. 6 (5th Cir.1991): whether pro se habeas petitioners are held to a different standard of "cause" for failing to raise a particular claim in prior petitions than are petitioners represented by counsel. Because McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), draws no such distinction, and because Saahir has shown neither cause under this standard nor a fundamental miscarriage of justice should he remain incarcerated, we affirm the district court's order dismissing his petition with prejudice.

BACKGROUND

Saahir, formerly known as James Loggins, was convicted of aggravated robbery by a Texas jury in 1979 and sentenced to 75 years imprisonment. The Texas Court of Criminal Appeals affirmed his conviction in 1982. He filed applications for writs of habeas corpus in the state courts in 1982 and again in 1986, both of which were denied. Saahir filed his first habeas petition in federal court in 1982, which was dismissed for failure to exhaust state court remedies. The district court dismissed his second federal habeas petition in 1983, prompting Saahir to appeal unsuccessfully to this court.

The state of Texas moved to dismiss Saahir's third federal habeas petition under Rule 9(b) because the twelve issues Saahir now raises were not, but could have been, raised in his earlier petition. ¹ After an evidentiary hearing, a magistrate judge found that Saahir's third petition raised completely new grounds for relief and that he had not alleged a lack of knowledge of the facts underlying his claims or the unavailability of means to know the legal doctrines when he filed his prior writ. The magistrate judge noted that Saahir's only explanation for failing to raise these issues earlier was that he was untrained in the law and had only uncovered the current issues after researching his case for three years. The magistrate judge also found that Saahir had presented no evidence of factual innocence. The district court, adopting the magistrate judge's findings of fact and legal conclusions, dismissed the third petition with prejudice as an abuse of the writ. Saahir filed a timely notice of appeal, and the district court granted a certificate of probable cause.

DISCUSSION

Saahir contends the district court abused its discretion in dismissing his petition. He argues that his failure to discover the claims he now raises should be excused because he was not represented by counsel when he filed the prior petitions. He also insists he made a colorable claim of factual innocence.

In McCleskey, the Court held that the standard used to decide whether to excuse a habeas petitioner's state procedural defaults also governs the determination

of excusable neglect in the context of abuse of the writ under Rule 9(b). 111 S.Ct. at 1468. This means that a serial habeas petition must be dismissed as an abuse of the writ unless the petitioner has demonstrated "cause" for not raising the point in a prior federal habeas petition and "prejudice" if the court fails to consider the new point. Woods, 933 F.2d at 323. The state has the initial burden of pleading writ abuse, as it did here; the petitioner must then prove cause and prejudice. Russell v. Collins, 944 F.2d 202, 205 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 30, 115 L.Ed.2d 1112 (1991). A court need not consider whether there is actual prejudice if the petitioner fails to show cause. McCleskey, 111 S.Ct. at 1474; Sawyer v. Whitley, 945 F.2d 812, 816 (5th Cir.), modified on other grounds, 1991 WL 231113 (5th Cir.), cert. granted, --- U.S. ----, 112 S.Ct. 434, 116 L.Ed.2d 453 (1991)

The cause standard requires the petitioner to show that some objective factor external to the defense prevented him from raising the claim in the previous petition. McCleskey, 111 S.Ct. at 1470. Such factors include interference by government officials, as well as the reasonable unavailability of the factual or legal basis for a claim. Id. In examining cause for a petitioner's delay in raising a habeas claim, McCleskey observed:

The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition. If what petitioner knows or could discover on reasonable investigation supports a claim for relief in the federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.

Id. at 1472.

McCleskey, then, demands Saahir show that at the time he filed his previous habeas petitions, some factor external to his defense prevented him from discovering the claims he now raises or from uncovering them through reasonable investigation. Saahir, however, has neither alleged that he was unaware of facts relevant to his claims, nor that any objective external factors prevented him from researching his case more thoroughly before filing earlier petitions. He testified at the evidentiary hearing that he did not realize that he should file only one writ, so he filed the first petition and then continued researching possible claims.

Saahir now contends that because he proceeded pro se on both his prior and current petitions, he should be excused for his ignorance of the law. We disagree. The alleged inadequacy of Saahir's own legal research is irrelevant under McCleskey because no objective external factor prevented him from raising the new claims in prior petitions. Nor can Saahir's pro se status qualify as such a factor. As McCleskey reiterated, there is no constitutional right to counsel in post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987); McCleskey, 111 S.Ct. at 1471; Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991).

It is hardly surprising, then, that McCleskey draws no distinction between pro se petitioners and those represented by counsel. See Woods, 933 F.2d at 324 n. 6. Instead, McCleskey sets a single standard for whether a habeas petitioner is excused from neglecting to raise his new claims in prior petitions:

Abuse of the writ doctrine examines petitioner's conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition....

111 S.Ct. at 1472 (emphasis in original). Because a habeas petitioner is not constitutionally entitled to any legal representation in waging a collateral attack, the McCleskey "knew or reasonably should have known" standard for cause applies irrespective of whether he was represented by counsel when he filed any previous petitions.

In Woods, this court suggested that the application of McCleskey 's "should have known" standard may be inconsistent with prior Fifth Circuit cases requiring actual knowledge by pro se petitioners of the facts and legal theories of their new claims. Woods, 933 F.2d at 324 n. 6. See, e.g., Schouest v. Whitley, 927 F.2d 205 (5th Cir.1991) (superseding Schouest v. Smith, 914 F.2d 713, 716 (5th Cir.1990)); Matthews v. Butler, 833 F.2d 1165, 1170-71 (5th Cir.1987); Passman v. Blackburn, 797 F.2d 1335, 1344 (5th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794 (1987); see also Jones v. Estelle, 722 F.2d 159, 163-64 n. 3 (5th Cir.1983) (en banc) (reserving the question), cert. denied, Jones v. McKaskle, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984). ² Now that the issue is squarely before the court, we recognize that McCleskey has overruled these earlier decisions to the extent they distinguish, for abuse of the writ purposes, between pro se petitioners and those represented by counsel.

Applying McCleskey to the facts of this case, we hold that Saahir "should have known" about the legal theories he now advances when he filed his earlier pro se petition....