Unpublished Disposition, 878 F.2d 386 (9th Cir. 1986)

MEMORANDUM^** 

Jackie Clinton Owens, a Nevada state prisoner, appeals pro se from 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

Owens was convicted in Nevada state court of sexual assault without the use of a deadly weapon. Proceeding pro se, Owens filed a 28 U.S.C. § 2254 habeas petition in 1981 in the United States District Court for the District of Nevada. Owens claimed that he was denied a fair trial because (1) the trial court failed to give a proffered jury instruction; (2) the jury considered his failure to submit handwriting exemplars as consciousness of guilt; and (3) prosecutorial misconduct during closing argument. The district court denied Owens' petition on the merits. Owens apparently did not appeal this judgment.

On June 20, 1986, Owens filed this, his second habeas petition, in district court raising issues (1) and (3) above, as well as one new ground: that the trial court committed prejudicial error in denying his motion to preclude the state from using his prior felony conviction for impeachment. The district court granted the motion to dismiss the petition as successive and as an abuse of the writ. Owens timely appeals.

ANALYSIS

Abuse of the Writ

There is no affirmative indication in the record, and the state does not claim, that Owens made a conscious decision deliberately to withhold his claim that the trial court erred in denying his motion to preclude the state from using his prior conviction for impeachment. Therefore, the district court abused its discretion in dismissing this claim as an abuse of the writ. See Harris v. Pulley, 852 F.2d 1546, 1572 (9th Cir. 1988).

If upon remand, Owens is able to make a colorable showing of factual innocence, then the district court will be required to consider the two remaining claims in his petition. Kuhlmann v. Wilson, 477 U.S. 436, 454 and n. 17 (1986).

The judgment of the district court is REVERSED and REMANDED for further proceedings consistent with this memorandum disposition.