Reddie Mcshane, Jr., Petitioner-appellant, v. W. J. Estelle, Jr., Director, Texas Department Ofcorrections, Respondent-appellee, 683 F.2d 867 (5th Cir. 1982)

Convicted in 1975 by a Texas state court of murder, petitioner seeks habeas corpus relief. In 1977, the petitioner first sought relief in federal court. Relief was denied in August 1979. The petitioner then filed an application for habeas corpus in state court in September 1979. Relief was denied by the state trial court in October 1979, and by the Texas Court of Criminal Appeals without written order on the basis of the findings of the trial court judge in December 1979. The petitioner filed a second state habeas corpus petition in November 1980. The trial court denied relief in December 1980, and the Court of Criminal Appeals denied relief without written order in the same month. The present federal habeas corpus petition was filed in February 1981. Based on the findings and recommendations of the Magistrate, the district court dismissed the habeas corpus petition pursuant to Rule 9(b), Rules Governing § 2254 Cases, because it was a successive petition.¹  The only issue in this appeal is the propriety of the rule 9(b) dismissal.

In order to consider the background of each of the issues presented in the present petition, we list those urged and whether they have been presented previously:

 Petitioner's Presented U.S. District Court's Allegations Before? Disposition ------------------------------- --------------------------- ----------------- 1. The state failed to meet its Presented to U.S. District Dismissed because previously burden of proving the charge Court in 1977 petition. presented. Rule 9(b), Rules of intent to commit murder. Governing Sec. 2254 Applications. 2. The state trial court Presented to U.S. District Dismissed permitted because previously hearsay photographs to be Court in 1977 petition. presented. Rule 9(b), supra. introduced. 3. The state trial court Presented to U.S. District Dismissed improperly because previously shifted the burden of proof Court in 1977 petition. presented. Rule 9(b), supra. of intent to commit murder to petitioner. 4. The jury charge was Presented in first state Dismissed because fundamentally court of waiver: defective because it habeas petition filed after not presented in prior federal authorized the jury to find first U.S. District Court petition. Rule action. 9(b), supra. petitioner guilty on a Magistrate found petitioner theory not alleged in the knew of this issue at indictment (i.e., lesser-included time he presented his first offenses). federal habeas petition. 5. The state trial court Presented in first state Dismissed exceeded court because of waiver: its statutory authority by habeas petition filed after not presented in prior federal assessing court costs. first U.S. District Court petition. Rule action. 9(b), supra. Magistrate found petitioner knew of this issue at time he presented his first federal habeas petition. 6. Petitioner's confession was Presented in second state Dismissed because illegally of waiver: obtained and, therefore, habeas petition filed after not presented in prior federal improperly introduced. first U.S. District Court petition. Rule action. 9(b), supra. Magistrate found petitioner knew of this issue at the time he presented his first federal habeas petition. 7. The evidence was Dismissed because insufficient of waiver: because: not presented in prior federal petition. Rule 9(b), supra. (a) The state introduced Presented in second state photographs showing habeas petition filed after external injuries on the victim's first U.S. District Court body that were present before the action. murder and did not prove that the petitioner was connected with the prior external injuries; (b) The medical examiner Not presented previously who testified was not shown to be properly qualified. Magistrate found petitioner knew of these issues at the time he presented his first federal habeas petition.

Thus, three of the issues outlined above (1, 2, and 3) were presented previously to the federal district court and relief was denied on the merits. Relief on those grounds was properly denied in this second action since "the prior determination was on the merits and the ends of justice would not be served by reaching the merits of the subsequent application." Sinclair v. Blackburn, 599 F.2d 673, 675 (5th Cir. 1979), cert. denied, 444 U.S. 1023, 100 S. Ct. 684, 62 L. Ed. 2d 656 (1980).

In this circuit the "abuse of the writ" doctrine is of "rare and extraordinary application." Vaughan v. Estelle, 671 F.2d 152, 153 (5th Cir. 1982); Potts v. Zant, 638 F.2d 727, 741 (5th Cir.), cert. denied, --- U.S. ----, 102 S. Ct. 357, 70 L. Ed. 2d 187 (1981); 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). As one court has stated, rule 9(b) "is not intended automatically to foreclose each petitioner who fails to claim every ground for relief in his first application in federal court." Haley v. Estelle, 632 F.2d 1273, 1276 (5th Cir. 1980). Rather, a rule 9(b) dismissal will be granted only if "it can be shown that the petitioner either deliberately withheld a claim from a previous petition or was inexcusably neglectful." Id. at 1275; accord, Paprskar, 612 F.2d at 1006.

The writ of habeas corpus is not abused if a petitioner alleges error not presented in his first petition if "his unawareness of facts which might support a habeas petition is excusable, or if his failure to understand the legal significance of the known facts is justifiable." Vaughan, 671 F.2d at 153; accord, Haley, 632 F.2d at 1275. Thus, in many instances we have vacated the district court's rule 9(b) dismissal and remanded for an evidentiary hearing to allow the petitioner to "traverse the suggestion of abuse." Vaughan, 671 F.2d at 153 (earlier failure to raise issue was because petitioner did not then have the assistance of counsel); accord, Potts, 638 F.2d at 748 & n. 26; Haley, 632 F.2d at 1276 (earlier failure to raise issue was because petitioner is a layman and was previously unaware of the ground for relief; the court remanded for an evidentiary hearing stating that the petitioner should not be penalized because of his inexperience); cf. Mays v. Balkcom, 631 F.2d 48, 51 (5th Cir. 1980) (rule 9(b) dismissal affirmed because petitioner was aware of claim of ineffective assistance of counsel and had complained at the time of his trial; his failure to include this claim in prior petition is "inexcusable neglect at best and a deliberate withholding of a ground for relief at worst").

In this case, McShane offered several reasons to explain his failure previously to assert all of the grounds for relief now alleged. He claims that he had difficulty obtaining copies of the state court proceedings to aid in presenting his federal petition; although he was present at the state court proceeding, he was unaware at the time of trial that he could then or later object to proceedings already objected to by his lawyer; he did not have the assistance of counsel in preparing his petitions; and he and his prison inmate helper are not lawyers and are uneducated in the procedural requirements of federal habeas petitions.

These reasons are sufficient to require an evidentiary hearing to determine whether McShane deliberately withheld any of the claims numbered 4 through 7 from a previous petition or was inexcusably neglectful in failing to assert these grounds of error before. Therefore, we VACATE the district court's rule 9(b) dismissal of McShane's habeas corpus petition as to grounds 4 through 7, and REMAND for an evidentiary hearing in accordance with this opinion. If it is then determined that McShane did not abuse the writ, both parties should be allowed to brief the merits of the claims asserted in the habeas corpus petition.²  We AFFIRM the rule 9(b) dismissal of grounds 1 through 3 since the identical grounds were raised in a previous federal habeas corpus petition.

AFFIRMED IN PART.

VACATED AND REMANDED IN PART.