Charles Jones v. W.J. Estelle, Jr., Director, Texas Department of Corrections , 722 F.2d 159 ( 1983 )

JERRE S. WILLIAMS,

with whom RUBIN, TATE, and JOHNSON, Circuit Judges, join, dissenting:

The majority of the Court submits an erudite opinion to establish that prisoner Jones abused the writ of habeas corpus in filing the petition which is before us. But what we are not told is that the intentional or reckless withholding of claimed habeas corpus grounds in the prior petition by Jones is attributed to a prisoner with a fifth grade education. Then, in attributing the responsibility for not raising the issues on habeas corpus earlier, his failure in turn is attributed to that of his appointed attorney in the prior habeas corpus petition. Yet the only evidence in the entire record as to his representation in the second petition by the appointed attorney is that the attorney communicated with him by letter once in preparation for the habeas corpus petition and the prisoner never met his attorney until just before the habeas corpus hearing. Further, the attorney raised and argued only one claim, the claim that Jones had been inadequately represented by counsel in his trial. In this case the facts belie the application of the principles held to be controlling in the opinion of the Court.

The core holding for the Court in this case is that it is an abuse of the writ to file a habeas corpus petition if the prisoner was represented by an attorney in a previous habeas corpus adjudication unless: (1) the prisoner proves his attorney was incompetent in the prior habeas corpus proceeding, or (2) new grounds are raised which developed in the law after the preceding habeas corpus application and such grounds probably could not reasonably be anticipated by the attorney or the petitioner. In general, these are valid guidelines. But they must be applied with balance and understanding. As applied in this case, we have a narrow and stringent holding which is a radical departure from the development of the law of abuse of the writ in this Court and from the law throughout the country as well.

It is correct, of course, that this Court sitting en banc can abandon its prior authority. But the extent of that abandonment is revealed starkly by comparing the austere and technical reasoning of the majority of the Court with these words from our 1982 decision in Vaughan v. Estelle, 671 F.2d 152, 153.

“Rule 9(b) codifies the seminal case of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), with its guidelines concerning abuse of the writ.” Potts v. Zant, 638 F.2d 727, 739 (5th Cir.1981) (citations omitted). See Haley v. Estelle, 632 F.2d 1273 (5th Cir.1980). But, in this circuit, the “ ‘abuse of the Writ’ doctrine is of rare and extraordinary application.” Paprskar v. Estelle, 612 F.2d 1003, 1007 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980) (citation omitted). See Hardwick v. Doolittle, 558 F.2d 292 (5th Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); Simpson v. Wainwright, 488 F.2d 494 (5th Cir.1973). The doctrine is applied narrowly because, under this rubric, full consideration of the merits of a new petition is not necessary if the filing is found to be abusive. Our reluctance to invoke the rule, save in rare and extraordinary instances, was dramatized in Haley v. Estelle in which we noted that “The principle behind Rule 9(b) is to dismiss those petitions that constitute ‘needless piecemeal litigation’ or whose ‘purpose is to vex, harass, or delay.’ ” 632 F.2d at 1275 (quoting Sanders v. United States, 373 U.S. at 18, 83 S.Ct. at 1078).

We in dissent can find no justification for this drastic departure from the established law concerning abuse of the writ which has developed out of the requirement of a showing of “deliberate withholding” of grounds, Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), or a withholding of grounds resulting from “the considered choice of the petitioner”, Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). A careful evaluation of the facts of this case reveals that there has been no abuse of the writ of habeas corpus under Rule 9(b), 28 U.S.C. foil. § 2254.

This is the third federal petition for habe-as corpus for this prisoner. The substantial number of state habeas corpus petitions are irrelevant and have nothing to do with a conclusion concerning abuse of the writ in federal courts. The first petition was pro se, and was filed in 1972. The denial was not appealed. Jones filed his second petition pro se in 1974. A federal public defender was appointed to serve as his attorney in that proceeding. Jones originally claimed three grounds in that petition, but his attorney argued only one — the inadequacy of counsel at his trial. The decision on appeal in that case, denying his petition, was rendered by this Court in 1977.

Jones’ current petition, his third, was filed pro se in 1982. In this petition, he claimed some 15 grounds, eight of which clearly had been disposed of before. The other seven grounds were new. Some of them properly could be characterized as frivolous. There are, however, at least two claimed grounds, among the new grounds, which are worthy of some consideration. The district court held the filing was an abuse of the writ. We reversed and required the district court to holding a hearing and make findings on whether the writ had been abused or not. Jones v. Estelle, 699 F.2d 793 (5th Cir. 1983).

At this point, the critical facts of this case develop. The hearing on remand to the district court consisted entirely of the petitioner’s own testimony. Petitioner was represented by counsel at this hearing. There is no evidence whatsoever in the record to counter the petitioner’s testimony that his lawyer on the second habeas corpus petition wrote him only once and that he met him for the first time only a short time prior to the habeas corpus proceeding. Petitioner then went on to testify that the grounds which he had alleged in his petition were grounds which he had picked up and read about talking to other prisoners since the final decision in his 1974 petition.

It is of the utmost importance in this case that the only evidence in the hearing on abuse of the writ is the evidence of petitioner himself. Obviously on the basis of this evidence, petitioner did not intentionally forego raising grounds in his two prior petitions. Nor was he guilty of inexcusable neglect in not raising the current grounds. The failure attributed to him must be placed solely upon his attorney in the second petition, and the opinion for the Court does so. Yet, on this record there is not a shred of evidence that petitioner’s counsel ever talked to him about other possible grounds or that his counsel carefully read and analyzed the entire record with other grounds in mind. There is no indication that petitioner was warned that his 1974 petition would be his last opportunity to claim grounds already in existence in a federal court in a habeas corpus. The district judge in finding an abuse of the writ after the hearing did not find that the accused could not be credited. Instead, the district court based its conclusion upon findings of fact which do not in any way dispute the state of the record as described immediately above. It is at this point that the abuse of discretion in the decision of the district court occurred.

While the petitioner has the burden of proof to counter the claim of abuse of the writ, that burden of proof was carried by his testimony. If his testimony is credited, there is no possible way that he can be found to be guilty of the abuse of the writ on the ground that he had an attorney at the hearing on the second petition. The opinion for the Court concludes that the competence of his attorney at the second petition is not challenged. Yet, this third petition was submitted pro se. We honor an obligation to recognize this fact and apply less stringent standards when we are dealing with the pleadings and arguments of a pro se habeas petitioner. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Richardson v. Fleming, 651 F.2d 366, 368 (5th Cir.1981). Of course the petitioner did not allege in his third petition that his attorney had been less than adequate in the hearing on the second petition. He obviously did not expect a charge of abuse of the writ, and did not fully understand its implications when it occurred. And we might add, neither did the district court. Hence our earlier reversal for a hearing.

The majority of the Court seems to say that in filing his third petition Jones should have recognized that he had to mount pro se a full attack upon the quality and competence of his representation in the second habeas corpus proceeding including proof of his attorney’s failure to anticipate every possible ground then in existence which might have merit and upon which his conviction might be challenged. This was a heavy demand on a prisoner with a fifth grade education acting on his own. But then a hearing was held because we directed it. Petitioner was then represented by counsel and testified. He explained the extent of his representation by his attorney in the second habeas corpus proceeding. His sketch of scanty representation for someone serving a life sentence as an habitual criminal was not challenged in any way by the government or by the district court. Yet the majority of the Court in terms concludes that he did not challenge the competence of his legal representation in the second hearing. On the basis of this record that conclusion cannot be supported.

It is not to be denied that there are cases which recognize that having a lawyer in a habeas corpus petition increases the burden upon the petitioner and the lawyer to exhaust all reasonable grounds in a federal habeas corpus petition. Obviously, the responsibility of raising such issues in this case had to lie with the lawyer and not with the poorly educated prisoner. Yet to carry the principle to the extreme application of •this case raises serious implications. After this holding lawyers could well candidly advise that a prisoner is better off acting pro se in a habeas petition unless he is absolutely certain that his lawyer has high skill and total devotion to petitioner’s case as well as time to carry out that devotion. And such devotion demands a lawyer who will become fully responsible for the content of the entire record, creatively claiming every possible ground in the petition, and making full effort to anticipate future developments. Lawyers are competent to do this. But it is much to ask of an often poorly compensated lawyer who is handling many such cases as an individual practitioner out of a public defender’s or legal aid facility.

The opinion for the Court places heavy reliance upon the case of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). It is said that the Lundy ease had a profound effect upon the abuse of the writ doctrine by requiring mixed habeas corpus petitions which contain some non-exhausted grounds to be dismissed and returned to the state courts for exhaustion. The assertion is that Lundy drastically alters the basic Sanders rule requiring an intentional or reckless failure to raise habeas issues. But finding such an impact upon the instant case requires a hop, skip, and jump over an abyss with no landing point for the hop and the skip. By definition Lundy was dealing with challenges not pursued first in state court. It is a “failure to exhaust state remedies” case. In contrast, exhaustion by Jones had taken place.

It is true that in cases such as Paprskar v. Estelle, 612 F.2d 1003 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980), we earlier allowed decision on the merits of exhausted claims while allowing later adjudication of non-exhausted claims. But those were known claims. Insofar as Rose v. Lundy limits the Paprskar holding it does not address at all the issue of whether the writ is abused by a failure to pursue a claim in a prior federal petition which included exhausted state claims only. The issue in this case is whether the claims now made and omitted from a prior petition were intentionally or recklessly withheld. With that issue Rose v. Lundy deals only most obliquely and clearly does not control.

We in dissent do not deny that the writ is subject to serious abuse and that there are many instances of successive petitions for habeas corpus which reveal abuse. But abuse of the writ under the rule has to do with withholding grounds either intentionally or recklessly. There is no evidence in this record that this prisoner is subject to such a conclusive bar either on the basis of his own responsibilities or the attribution to him of the responsibilities of his attorney.

The Court’s holding in this case tends to reduce the “Great Writ” to a writ available to the highly educated, the intelligent, and the wealthy who can hire the finest legal service and ensure that every consideration is given to the content of the petition. There is nothing in the position which we here espouse which countenances genuine abuse of the writ by successive petitions when grounds are withheld knowingly or carelessly. But there is no statute of limitations on the serious constitutional claims of prisoners. The majority of the Court creates one in this case without the countervailing justification of requiring that such issues be known and understood to be present or readily discoverable at the time of the earlier petition. With the showing in this record of the inadequacy of the consideration of possible habeas claims by the attorney for petitioner in the second petition, we must not impute to this pro se poorly educated prisoner the abilities of a skilled and highly educated advocate.

This Court has a deserved reputation for the protection of the rights of the least of those among us. But in this case we falter by not even allowing this prisoner to have determined on the merits these issues which he learned about through fellow prisoners and through reading while in prison. All of his claims may be without substance, and indeed all of them may be frivolous, but on this record he. has not abused the writ by asking that they be considered.

The decision of the district court should be reversed and the case remanded for a consideration on the merits of the issues raised by petitioner.