Jones v. Estelle, 82-2138

• Decision Date: 11 March 1983
• Docket Number: No. 82-2138,82-2138
• Citation: 699 F.2d 793
• Parties: Charles JONES, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 793

699 F.2d 793

Charles JONES, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 82-2138

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 11, 1983.

Otha T. Carpenter, Houston, Tex., for petitioner-appellant.

Paula C. Offenhauser, Asst. Atty. Gen., Houston, Tex., for respondent-appellee.

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

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

PER CURIAM:

Appellant Charles Jones is serving a life sentence in the Texas prisons as an "habitual offender" following three convictions of burglary or attempted burglary. Since 1971, he has filed six habeas corpus petitions in the Texas state courts and three in the federal courts. His first federal habeas corpus petition was filed in January 1972, and his second in November 1974. It was not until two years later in December 1976, that his second federal habeas corpus application was denied on the merits, and eight months later this Court affirmed.

Jones' third federal habeas corpus petition, the one now before this Court, was filed on June 29, 1979. On April 10, 1980, the district court dismissed this petition for abuse of the writ under Rule 9(b), Rules Governing Sec. 2254 Cases. This Court reversed that decision in an unpublished opinion dated July 30, 1981. In the opinion, the panel found itself "unable to agree that a showing of such abuse was made out below." It, therefore, reversed and remanded for a full hearing on the issue of abuse of the writ.

The district court held the hearing on October 26, 1981. Based upon that hearing, the district court again dismissed the petition on the ground that under Rule 9(b) it abused the writ. Jones has now appealed that decision.

The pro se petition for habeas corpus which is the subject of this current decision and appeal is based upon fifteen alleged grounds. It is agreed that eight of them had been raised and considered earlier. It may be assumed they are no longer pending. The seven remaining grounds are new grounds raised since the second federal habeas corpus petition. These seven grounds were first raised in the state courts, and state remedies have been exhausted. The decision of the district court which is now under review found that the failure earlier to present the seven new grounds in the 1974 petition was "inexcusable". The court further found that Jones had had "ample opportunity" to avail himself of the federal claims here asserted. The court went on to say: "This Court finds that Petitioner had the knowledge and opportunity to present these claims in his second application, and his failure to do so was intentional."

The district court relied upon the fact that in Jones' second habeas corpus petition, although originally filed pro se, an attorney had been appointed, and he was represented by an attorney for well over a year before the district court decision in that earlier application.

The hearing on which these conclusions of the district court were based consisted entirely of the testimony of petitioner Jones himself. Jones, a black person who has only a fifth grade education, testified that the seven new grounds developed...