Jones v. Estelle

• Decision Date: 23 December 1983
• Docket Number: No. 82-2138,82-2138
• Citation: 722 F.2d 159
• Parties: Charles JONES, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 159

722 F.2d 159

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

No. 82-2138.

United States Court of Appeals Fifth Circuit.

Dec. 23, 1983.

Thomas B. Taylor, Otha T. Carpenter, Houston, Tex. (Court appointed), for petitioner-appellant.

Charles Jones, pro se.

Linda Marshall, Asst. Atty. Gen., Houston, Tex., Paula C. Offenhauser, Leslie A. Benitez, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

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

Before CLARK, Chief Judge, BROWN, GEE, RUBIN, REAVLEY, POLITZ, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges. ^*

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Today we strike at two uncertainties often present when a prisoner seeks to avoid dismissal of his claim made for the first time in a successive petition for writ of habeas corpus. We decide that in the prosecution of a federal habeas petition a petitioner is bound by the knowledge chargeable to his competent habeas counsel. We decide that the sole fact that the new claims were not exhausted when the earlier federal writ was prosecuted will not automatically excuse their omission.

I

Charles Jones is now serving a life sentence in the Texas state prison following his conviction in 1968 of attempted burglary enhanced by two prior convictions. On direct appeal Jones did not attack his conviction for attempted burglary but attacked one of the two prior enhancing convictions, urging that the indictment in that case did not state an offense and that the state's proof by prison records rather than by a certified copy of the judgment was insufficient. That attack was rejected. Jones v. State, 449 S.W.2d 277 (Tex.Cr.App.1970).

In the next thirteen years Jones filed six pro se applications for a writ of habeas corpus in the state courts. This, Jones's third federal petition, asserts fifteen grounds for relief. Seven grounds are "new" ¹ and eight have been considered in previous applications.

The district court dismissed Jones's petition, pursuant to Rule 9(b) of the rules governing habeas corpus, as an abuse of the writ, finding the eight grounds that had been considered in Jones's prior petitions ought not be considered again, and the seven new claims would not be considered because Jones's failure to raise them in his prior petitions was inexcusable. Jones appealed and in an unpublished opinion we remanded for an evidentiary hearing. At the ordered evidentiary hearing, only Jones testified. He explained that he learned of his new claims from fellow inmates after his second federal petition. The district court found that Jones had the knowledge and opportunity to present the newly asserted claims in his second federal habeas petition. The district court also found significant the fact that Jones had been represented by appointed counsel in his second federal habeas application and had ample opportunity to discuss with counsel all possible grounds for relief. Concluding that Jones's failure to raise the newly asserted claims in his prior petition was not excusable, the district court again dismissed the petition for writ abuse.

Jones appealed, urging that the only evidence before the district court was his testimony that he had been unaware of the new grounds for relief until after his second federal petition was denied. A panel of this court held that writ abuse had not been clearly established by the evidence before the district court, and reversed the dismissal of Jones's petition. Jones v. Estelle, 699 F.2d 793 (5th Cir.1983). Rehearing en banc was granted. 711 F.2d 35 (5th Cir.1983). We are not persuaded that the district court abused its discretion and now affirm dismissal of Jones's third federal habeas petition.

II

New claims in a successive habeas petition must be dismissed if omitting them from a prior petition is an abuse of the writ. 28 U.S.C. foll. Sec. 2254, Rule 9(b). As the advisory committee notes to Rule 9(b) affirm, "[t]his subdivision is aimed at screening out the abusive petitions from this large volume, so that the more meritorious petitions can get quicker and fuller consideration."

Adopted in 1976, Rule 9(b) largely codifies the principles enunciated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). ² Specifically,

if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.... Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay.

Id. at 18, 83 S.Ct. at 1078.

Sanders relied on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to indicate the limits of the writ abuse doctrine. Fay had established that, because habeas corpus is governed by equitable principles, "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." 372 U.S. at 438, 83 S.Ct. at 849. Though Fay involved exhaustion of state remedies, its analysis is equally applicable to successive writs.

According to Fay, a petitioner loses the right to have a claim considered on a successive petition if he "understandingly and knowingly forewent the privilege," 372 U.S. at 439, 83 S.Ct. at 849, of raising that claim in his initial petition. The bar "depends on the considered choice of the petitioner." Id. But note that the inquiry is not whether the petitioner intended to give up his right to have a claim heard at all. It is whether he withheld it without legal excuse when he filed his earlier petition.

The outer limits of the abuse doctrine are easily stated. A petitioner may in a successive petition assert a new claim based on facts or legal theories about which he had no knowledge when prosecuting his prior habeas petition. ³ Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir.1980).

At the opposite end of the spectrum are cases where petitioners are aware of a ground to support a writ but deliberately withhold it and assert it in a later petition. The withheld claim is undoubtedly barred. See Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924).

The more difficult cases fall between the two extremes into an area where awareness of right and purpose are matters of inference. It is not surprising that many successive habeas petitions fall into this category, for often the very fact that the petition is successive engenders suspicion of writ abuse. Indeed the Supreme Court has recently counseled wariness of successive petitions. Barefoot v. Estelle, --- U.S. ----, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).

Nor is it surprising that procedural rules have flourished in this policy tensioned environment. We pause to describe their prominent features. The Supreme Court held in Sanders that abuse of the writ must be specifically pleaded by the government, 373 U.S. at 17, 83 S.Ct. at 1078, while explicitly declining to place on the petitioner the burden of pleading absence of abuse. See Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). Rather, "if the Government chooses ... to claim that the prisoner has abused the writ of habeas corpus, it rests with the Government to make that claim with clarity and particularity." Id.

The government meets its burden of pleading if it notes petitioner's prior writ history, indicates the claims appearing for the first time in the successive petition, and affirms its belief that petitioner is abusing the writ in a manner proscribed by Rule 9(b). In asserting writ abuse the government is by necessity asserting that it is aware of no newly disclosed facts or changes in the law that would justify the filing of a successive petition. Finally, despite the pleading requirements placed on the parties, abuse may be raised sua sponte by the district court. See Sockwell v. Maggio, 709 F.2d 341 (5th Cir.1983).

Once the government has met its burden of pleading writ abuse, or once the issue has been raised by the district court sua sponte, the petitioner "has the burden of answering that allegation and of proving ... by a preponderance of the evidence ... that he has not abused the writ." Price v. Johnston, 334 U.S. at 292, 68 S.Ct. at 1063 (emphasis added).

Petitioner's opportunity to carry that burden will not include an evidentiary hearing if the district court determines as a matter of law that petitioner has no chance of justifying the successive petition. Vaughan v. Estelle, 671 F.2d 152 (5th Cir.1982); Johnson v. Copinger, 420 F.2d 395 (4th Cir.1969). At any evidentiary hearing the district court should determine whether the failure to raise the new claims in the prior petition was excusable. ⁴

These procedural rules reflect the effort to adjust the tension between the need to consider all nonfrivolous claims and the need to prevent manipulation and obstruction of judicial proceedings by successive petitions. The objective is to preserve the proper use of the writ of habeas corpus to win review of unlawful state action, while recognizing that "[t]he advancing of grounds for habeas relief in a one-at-a-time fashion when the evidence is available which would allow all grounds to be heard and disposed of in one proceeding, is an intolerable abuse of the Great Writ." Fulford v. Smith, 432 F.2d 1225 (5th Cir.1970).

This policy implementation can be expressed in the language of traditional equity precepts. The petitioner who fails to carry his burden of proof at the 9(b) hearing will suffer dismissal of his petition because he has failed to demonstrate...