Paprskar v. Estelle, 79-2170

• Decision Date: 03 March 1980
• Docket Number: No. 79-2170,79-2170
• Citation: 612 F.2d 1003
• Parties: Michael J. PAPRSKAR, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1003

612 F.2d 1003

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

No. 79-2170.

United States Court of Appeals Fifth Circuit.

March 3, 1980.

Michael Anthony Maness, Houston, Tex., for petitioner-appellant.

Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before COLEMAN, Chief Judge, FRANK M. JOHNSON, Jr., and POLITZ, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

On November 16, 1978, the United States District Court for the Southern District of Texas dismissed petitioner Michael J. Paprskar's second federal habeas corpus petition as a successive petition "abuse of the writ". The district court erred in making that determination. Accordingly, we vacate the judgment below and remand to the district court for further consideration of Paprskar's petition.

I.

This appeal marks Michael Paprskar's second appearance in this Court challenging his Texas conviction for murder or aspects of his confinement in the Texas penal system. ¹ In his initial Section 2254 petition, filed in December, 1975, petitioner alleged that state incarcerating authorities had unconstitutionally withheld credit for "good time" on thirty-nine months of pre-conviction detention. ² Although the district court granted Paprskar's petition, this Court ultimately reversed. Paprskar v. Estelle, 566 F.2d 1277, 1281 (5th Cir.), Cert. denied, 439 U.S. 843, 99 S.Ct. 136, 58 L.Ed.2d 142 (1978).

Paprskar and his family retained an attorney to replace the lawyer who had represented petitioner since his arrest in 1970. Over a period of time, however, the retained counsel failed to seek post-conviction relief in the state courts. In the meantime, Paprskar proceeded pro se on his first Section 2254 petition ³ and the federal district court appointed Attorney Maness, who represents Paprskar here, as counsel for petitioner in that action. Finally, in March, 1976, Paprskar's retained lawyer filed a state post-conviction action challenging petitioner's conviction. The state courts did not dispose of the matter until November, 1976. Even this belated action by the retained counsel, however, was insufficient in that, directly contrary to Paprskar's wishes, that lawyer raised no claims of the ineffective assistance of petitioner's original attorney. Thereafter, Attorney Maness filed a state post-conviction action raising the ineffective assistance allegations. ⁴

As these attempts at relief proceeded toward exhaustion in the Texas state court system, the federal district court granted Paprskar's "good time" petition. As noted above, however, this Court reversed and the Supreme Court ultimately denied certiorari.

After frustration of his attempt for good time relief, Paprskar on April 19, 1978, filed pro se ⁵ his second habeas corpus petition in the federal courts, the petition under consideration here. Unlike the earlier habeas corpus application, the second petition omitted any reference to conditions of Paprskar's confinement and instead challenged petitioner's conviction. ⁶

Respondent filed a motion to dismiss the second application, asserting that it was a "successive petition" within the purview of Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C. following § 2254) and constituted an "abuse of the writ" because Paprskar "should have submitted in his initial federal habeas corpus application (the "good time" case) all of the issues" raised in the second petition. ⁷ The district court directed Paprskar to explain the reason the contentions raised in the second petition had not been asserted in the first application. ⁸ The case was then referred to the United States Magistrate who recommended that the district court dismiss the petition as "a classic case of abuse of the writ." ⁹ The district court followed that recommendation. ¹⁰

II.

The district court dismissed Paprskar's second petition under the authority of the prohibition of Rule 9(b) against abuse of the writ. For that decision, respondent invites the imprimatur of this Court. We decline the invitation.

Rule 9(b) provides that:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

To determine whether given conduct constitutes abuse of the writ, however, reference to pre-Rule 9 case law is necessary. Rule 9(b) did not in any way change the standards that govern habeas corpus petitioners in the federal courts. Rather, the Rule restates principles that had previously been judicially developed.

The Supreme Court in Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) announced that "full consideration of the merits (of a habeas corpus petitioner's allegations) can be avoided only if there has been an abuse of the writ . . . ." As enacted by Congress, Rule 9(b) codifies the standard of Sanders. Advisory Committee Note, Rule 9, Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C. following § 2254); H.R.Rep.No.1471, 94th Cong., 2d Sess. 5-6, Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 2478, 2482; Galtieri v. Wainwright, 582 F.2d 348, 356 & n.18 (5th Cir. 1978) (en banc); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4267 at 690-91 (1978). ¹¹ When we examine the conduct of petitioner ¹² in light of the equities, See Sanders, supra, 373 U.S. at 17, 83 S.Ct. at 1078, we clearly cannot conclude that this petition constitutes "needless piecemeal litigation" or that its "purpose is to vex, harass, or delay." Id. at 18, 83 S.Ct. at 1078. There was here no abuse of the writ of habeas corpus.

The Sanders Court spoke of a circumstance in which abuse of the writ is present. "(I)f a prisoner Deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application . . . he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground." 373 U.S. at 18, 83 S.Ct. at 1078 (emphasis added). However, from Sanders' incorporation of the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, See 373 U.S. at 18, 83 S.Ct. at 1078 (1963), it is clear that such conduct will be an abuse of the writ only if due to "inexcusable neglect," Townsend, supra, 372 U.S. at 317, 83 S.Ct. at 759, or because of " 'an intentional relinquishment or abandonment of a known right or privilege,' " Fay, supra, 372 U.S. at 439, 83 S.Ct. at 849, Quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See 28 U.S.C. § 2244(b); Turnbow v. Beto, 464 F.2d 527, 528 (5th Cir. 1972); Galtieri, supra, 582 F.2d at 368 (Goldberg, J., dissenting).

The Sanders Court recognized that "(n)othing 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." 373 U.S. at 18, 83 S.Ct. at 1078 (emphasis added). The Sanders ruling was based on the principle "that 'habeas corpus has traditionally been regarded as governed by equitable principles.' United States ex rel. Smith v. Baldi, 344 U.S. 561, 573, 73 S.Ct. 391, 397, 97 L.Ed. 549 (dissenting opinion). Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Sanders, supra, 373 U.S. at 17, 83 S.Ct. at 1078.

In the present case there was neither inexcusable neglect nor deliberate withholding of a ground for relief. See Turnbow v. Beto, supra. At the time the district court considered Paprskar's "good time" case, the allegations raised in his second federal petition, See note 6, Supra, had not yet been finally acted on by the courts of Texas and therefore remained unexhausted. The "good time" case, however, was ready to proceed toward resolution. As stated in our en banc decision in Galtieri, supra, 582 F.2d at 351, "(t)he rule in this circuit is that a federal district court generally must dismiss, without prejudice, a state prisoner's petition for a writ of habeas corpus that contains a mixture of exhausted and unexhausted claims." Given that rule, we certainly can fault neither the district court for proceeding with the "good time" litigation nor Mr. Maness for not derailing resolution of claims concerning the conditions of petitioner's confinement until exhaustion in the state courts of challenges wholly unrelated to the facts and law involved in the "good time" case. The simple fact is that the "good time" case was ripe for adjudication and the claims challenging the underlying conviction were not. "The 'abuse of the Writ' doctrine is of rare and extraordinary application." Simpson v. Wainwright, 488 F.2d 494, 495 (5th Cir. 1973). Clearly, it is inapplicable where, as here, there was "some justifiable reason" for failure to raise the contentions in the first petition. Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct. 1049, 1062, 92 L.Ed. 1356 (1948). Respondent cites no case, nor has a search revealed any, that indicates that abuse of the writ exists in the circumstances involved here.

Respondent argues that the forceful reiteration in Galtieri of the goal of "one federal proceeding embracing all claims," 582 F.2d at 357, requires us to find an abuse of the writ here. The argument, however, is inapposite.

First, as noted above, Rule 9(b) did not change the judicial interpretation of the abuse of the writ standard and no cases evidence that abuse of the writ...