Unpublished Disposition, 872 F.2d 432 (9th Cir. 1987)

MEMORANDUM^** 

Spencer Watson, an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We reverse and remand to the district court for further proceedings.

FACTS

Watson was convicted in Arizona state court of first-degree murder, armed burglary, burglary, armed robbery, robbery, theft of a motor vehicle, and obstruction of justice. He was sentenced to death on the murder conviction, and received concurrent 99-years-to-life sentences for the armed burglary, armed robbery and robbery, 14 to 15 years for the burglary, and time served for the remaining counts. State v. Watson, 120 Ariz. 441, 444, 586 P.2d 1253, 1255-56 (1978) (en banc), cert. denied, 440 U.S. 924 (1979). On appeal, Watson's death sentence was commuted to life imprisonment and the other portions of his sentence remained the same. State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981) (en banc).

Proceeding pro se, Watson filed a 28 U.S.C. § 2254 habeas petition on May 7, 1985, in the United States District Court for the District of Arizona. Watson claimed, among other things, that his jury trial was unfair because he was shackled throughout the trial and that this was observable by the jury. Id. On October 2, 1985, the district court denied Watson's petition on the merits and dismissed the action. Watson never appealed this dismissal.

On March 16, 1987, Watson filed a second 28 U.S.C. § 2254 habeas petition in the same court, raising the same issues. The district court dismissed Watson's petition on March 18, 1987. On March 24, 1987, Watson served a Rule 59 motion. The district court denied Watson's motion on May 1, 1987. Watson timely appeals.

ANALYSIS

Watson's 1987 habeas petition, which the district court dismissed, is a successive habeas petition. A successive habeas petition is a petition which raises grounds identical to those raised and rejected on the merits in a prior petition. Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6 (1986). Although res judicata principles do not apply in habeas corpus proceedings, the district court is not required to reevaluate every repetitive petition that a prisoner files. Magby v. Wawrazaszek, 741 F.2d 240, 244 (9th Cir. 1984) (citations omitted). "In essence, [28 U.S.C. § 2244] vests district courts with the discretion to decline to consider on habeas corpus contentions previously considered and rejected on prior applications for the writ." Johnson v. Lumpkin, 769 F.2d 630, 635 (9th Cir. 1985).

A district court may dismiss a habeas corpus petition, without a hearing, on the basis of a prior adjudication only if: "(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States, 373 U.S. 1, 15 (1963). See also 28 U.S.C. § 2244(b); Rule 9(b), Rules governing Section 2254 Cases, 28 U.S.C. foll. Sec. 2254; Richmond v. Ricketts, 774 F.2d 957, 960 (9th Cir. 1985). The burden of proof is on the petitioner to establish that the ends of justice would be served by religitation of the claims previously decided against him. Sanders, 373 U.S. at 17. To meet this burden, the prisoner must supplement his constitutional claim with a colorable showing of factual innocence.¹  Kuhlmann, 477 U.S. at 454.

In his 1987 habeas petition, Watson raises the same issues that he raised in his 1985 petition.²  Although the district court did not expressly hold that it was dismissing the 1987 petition as successive, it found that the claims Watson asserted in his 1987 petition had been considered and rejected on the merits in 1985, thereby satisfying the definition of a successive petition, as well as the first two prongs of the Sanders test.

The third prong of the Sanders test requires the district court to make a specific finding that the ends of justice would not be served by reaching the merits of the previously adjudicated claims. Tannehill v. Fitzharris, 451 F.2d 1322, 1324 (9th Cir. 1971). Although the district court did not make an ends of justice determination here, the Supreme Court has held that " 'the ends of justice' require federal courts to entertain [claims adjudicated in a prior habeas proceeding] only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Kuhlmann, 477 U.S. at 454. Because Watson has not even attempted to make such a showing,³  the district court properly dismissed Watson's habeas petition as successive.

However, the district court dismissed Watson's petition without advising him that under Kuhlmann he must make a showing of factual innocence. Watson is proceeding pro se. We must construe his pleadings liberally. See Haines. v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). " [A] petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted." Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). We cannot say that had the district court advised Watson of the Kuhlmann requirement prior to dismissing his petition, Watson could not have made a showing of factual innocence sufficient to evoke a decision on the merits of his petition. Accordingly, we reverse the district court's order dismissing Watson's petition and remand this case to the district court with instructions to advise Watson that to avoid dismissal of his petition he must allege facts which, if true, would establish a colorable showing of factual innocence.

REVERSED and REMANDED to the district court for further proceedings consistent with this memorandum disposition.