Steven D. Hamilton, Petitioner-appellant, v. O.l. Mccotter, Director, Texas Department of Corrections,respondent-appellee, 772 F.2d 171 (5th Cir. 1985)

This appeal is from a dismissal for abuse of the writ of a Texas prisoner's successive petition for habeas relief under 28 U.S.C. § 2254. The district court determined that all appellant's asserted grounds for relief in this his third federal petition had either been raised and disposed of in a previous section 2254 proceeding, or that they should have been previously raised, and consequently had been bypassed without legal excuse by the prior failure to assert them. The petition was dismissed pursuant to Rule 9(b) of the Rules Governing Sec. 2254 cases, 28 U.S.C. foll. Sec. 2254. We agree with the district court's dismissal as to all save one of the eleven grounds asserted in appellant's petition. Accordingly, we reverse the dismissal in part, and remand for further proceedings respecting the single viable issue raised in appellant's petition.

FACTS AND PROCEEDINGS BELOW

Appellant Steven D. Hamilton was indicted by a Dallas County, Texas grand jury in April 1975 on a charge of armed robbery. He was found guilty by a jury, and sentenced to life imprisonment following a trial in June of that year. The conviction was affirmed on appeal in an unpublished opinion. See Hamilton v. State, 542 S.W.2d 427 (Tex.Crim.App.1976) (Table).

On December 12, 1977, appellant filed his first habeas corpus petition in state court. Proceeding pro se, he requested a copy of his trial record. The convicting court recommended denial, because the application did not contain the required verification by oath. The Texas Court of Criminal Appeals denied relief without written reasons on January 18, 1978.

On April 17, 1978, appellant filed his second pro se state habeas petition, the first to actually collaterally attack his conviction.¹  The convicting court recommended denial of this application on April 25; the Texas Court of Criminal Appeals did so without opinion on May 10, 1978.

On August 8, 1978, appellant, again proceeding pro se, filed his first federal habeas petition (C.A. 3-78-0974-G) in the Northern District of Texas, Dallas Division, attacking his state conviction, and alleging the following grounds for relief: (1) illegal search and seizure; (2) evidence obtained therefrom was improperly admitted at trial; (3) void indictment (insufficient allegations); (4) wrongfully admitted in-court identification; (5) ineffective assistance of counsel at trial; and (6) prosecutorial misconduct. By order dated August 24, 1979, the district court dismissed appellant's claims numbered (1) and (2), finding that appellant had had a "full and fair opportunity to litigate those issues [previously] in the state courts of Texas." See Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037, 3046, 49 L. Ed. 2d 1067 (1976); Caver v. State of Alabama, 577 F.2d 1188, 1191-92 (5th Cir. 1978); O'Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977). Claims (3), (4), and (6) were dismissed, in accordance with the magistrate's recommendations, for want of merit based upon appellant's state trial record. The district court found, however, that claim (5), asserting ineffective assistance of counsel, could not be resolved on its merits from the state record. An evidentiary hearing was set, and the court in its August 24 order appointed an attorney to represent appellant in that hearing. In a subsequent order, the court indicated that the hearing would comprehend "all claims of ineffective assistance of counsel."² 

Following some postponements, the evidentiary hearing was finally held on January 25, 1980. Appellant, his common-law wife, mother-in-law, and sister-in-law testified to the effect that, had the women been contacted by appellant's trial attorney, they would have offered to testify to an alibi. Appellant's trial counsel also testified, and directly contradicted the assertions by appellant's witnesses both that they had not been contacted and that their proferred testimony would have been competent and valuable to appellant's cause at trial. The district court denied appellant's writ petition on February 5, 1980. The court's opinion indicated that it believed that trial counsel had exercised reasonable professional judgment regarding whether to utilize the alleged alibi testimony and whether to pursue a search and seizure question. Appellant noticed appeal, and requested a certificate of probable cause, which the district court denied on March 5, 1980. This Court affirmed the district court's denial of appellant's petition for habeas relief on June 24, 1981. Hamilton v. Estelle, 651 F.2d 775 (5th Cir. 1981).³ 

On April 16, 1981, appellant, again pro se, filed his third state habeas petition in the convicting court.⁴  On May 22, 1981, the state court recommended denying the writ application and appellant's request for a hearing. Following response to the court's findings, filed by appellant on June 15, 1981,⁵  the Court of Criminal Appeals denied relief without opinion on June 17, 1981.

On January 27, 1982, appellant, acting pro se, filed his second federal habeas petition (C.A.-3-82-0118-G), again in the Northern District of Texas. That court dismissed the petition without prejudice, for nonexhaustion of state remedies, on June 14, 1982. Concurrently, on March 10, 1982, appellant filed a pro se application in state court (his fourth state petition) in the form of a "Petitioner's Amendment to His Application for the Writ of Habeas Corpus." Reciting that, although no application was presently before that court, but that "an application that this Court has already had the opportunity to hear and determine; said application being denied by this Court," was "before the Northern District Court-Dallas Division," appellant sought habeas relief, alleging four grounds.⁶  On September 22, 1982, the convicting court recommended denying the requested hearing and appellant's writ application. The Texas Court of Criminal Appeals denied relief and cited appellant for abuse of writ on November 10, 1982.

On October 13, 1983, having exhausted state remedies, appellant filed his third federal habeas petition. This petition, the subject of the present appeal, alleged the following eleven grounds for relief: (A) conviction obtained under an unconstitutionally vague statute; (B) unconstitutional pretrial photographic identification; (C) denial of access to trial records; (D) lack of effective consent in (illegal) search and subsequent seizure of evidence; (E) trial charge to the jury not based on the indictment, i.e., containing various theories for conviction not contained in the indictment; (F) indictment forged, and lack of real indictment; (G) indictment defective, i.e., fatal defects in allegations (and an indirect allegation that the indictment had not been returned by a grand jury); (H) illegal search, i.e., no search warrant; (I) prejudicial in-court identification improperly admitted into evidence; (J) ineffective assistance of counsel at trial (including pretrial); and (K) ineffective assistance of counsel on appeal of the state conviction. The State moved for dismissal on grounds of abuse of the writ pursuant to Rule 9(b) of the Rules Governing Sec. 2254, 28 U.S.C. foll. Sec. 2254.⁷  In response to this Rule 9(b) motion, appellant alleged that he was asserting new grounds for relief, and also asserted a conclusory claim of excusable neglect as to grounds previously unurged.⁸  On March 12, 1984, following the recommendation of the magistrate to whom the matter had been referred, the district court dismissed appellant's petition for abuse of the writ pursuant to Rule 9(b). On that same day, appellant gave notice of appeal, and sought a certificate of probable cause, which the district court declined to give. On June 18, 1984, a panel of this Court granted a certificate of probable cause and leave to proceed in forma pauperis, and appointed counsel for the purposes of this appeal.

CLAIMS RAISED IN OR BEFORE FIRST FEDERAL HABEAS

Appellant concedes that five of the grounds (grounds (D), (G), (H), (I), and (J)) raised in this, his third federal habeas petition, were raised previously in his first federal petition and were decided on the merits.⁹ 

"The purpose of [Rule 9(b) ] is to avoid piecemeal litigation, with petitioners advancing claims one at a time." Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir. 1984) (citations omitted). We have said that the appropriate standard against which to determine abuse of the writ is not whether a successive petitioner intended to bypass an issue at the time of the previous petition, but "whether he withheld it without legal excuse when he filed his earlier petition." Jones v. Estelle, 722 F.2d 159, 163 (5th Cir. 1983) (en banc), cert. denied, --- U.S. ----, 104 S. Ct. 2356, 80 L. Ed. 2d 829 (1984); see also Daniels v. Blackburn, 763 F.2d 705 (5th Cir. 1985); Rudolph v. Blackburn, 750 F.2d at 305. Legal excuse may exist if, after the previous proceeding, there is a change in the law which makes the claim possible or the petitioner first becomes aware or chargeable with knowledge of the asserted facts on which the new claim is based. See Daniels, 763 F.2d at 707.

Appellant's alleged ground (C)--denial of access to state trial records--was the sole subject of the request presented in appellant's first state habeas application, in which he sought a free copy of his trial record. It is therefore obvious that appellant was aware of this claim at the time of his first federal petition, and that he bypassed this ground for relief by having failed to have raised it in that first federal petition. He has offered no legally cognizable excuse for not having raised the claim previously.

Appellant contends that ground (B) (denial of counsel during an alleged improperly suggestive pretrial photographic display) was not previously raised in his 1978 (first) federal petition. The State of Texas claims that this ground was presented in a brief in support of his first federal petition. In his pro se "Petitioner's Brief and Answer to the Respondent's Motion to Dismiss and Answer," which he filed in response to the State's motion to dismiss the first federal petition, appellant did clearly allege both that the pretrial photographic display was impermissibly suggestive and that it was conducted in denial of his Sixth Amendment right to counsel.¹⁰  The record also reflects that appellant briefed the issue of lack of counsel at the pretrial display (though not expressly the suggestiveness of display claim) in his second state habeas application.¹¹  This state application was filed and resolved before appellant's first federal petition for relief was filed. Thus, there can be no doubt that appellant was sufficiently aware of the nature and import of all his claims regarding the pretrial display before the district court ruled on the first federal petition, so that dismissal of this claim for relief on grounds of abuse of the writ by the district court considering the third federal petition was fully justified.¹² 

OTHER CLAIMS OF APPELLANT REJECTED

Appellant's remaining claims, namely, (A) that the Texas statutes under which his conviction is supported are duplicative and therefore unconstitutional; (E) that the convicting court's charge to the jury improperly contained multiple theories; (F) that the indictment was a forgery; and (K) that he received ineffective assistance of counsel on his state conviction appeal, had not been raised in or prior to his first federal habeas. All these claims were also dismissed by the district court on grounds that appellant's failure to raise them in his first federal petition constituted an abuse of the writ under Rule 9(b). Appellant was allowed to file a written response to the State's allegation of abuse of writ, but was granted no evidentiary hearing on the matter.¹³  A petitioner must be afforded an opportunity to respond to an allegation of abuse, but a hearing is not required if the court determines that a petitioner "has no chance of justifying the successive petition." Jones, 722 F.2d at 164; see also Daniels, 763 F.2d at 707-08.

The Previous Petition: Pro Se or Not Pro Se ?

The State urges us to find that this appeal is controlled by our recent en banc opinion in Jones v. Estelle, supra. This Court there ruled that a pro se petitioner who had filed a successive federal habeas petition, and who had had the benefit of representation by counsel during the course of the prior petition, was to be held constructively to the same standard of knowledge of the law that could be attributed to his counsel, at least if counsel's competency were not successfully challenged in the subsequent federal habeas. See Daniels, 763 F.2d at 707.

The State characterizes appointed counsel's representation of appellant during the evidentiary hearing in his first federal petition as having been representation for all purposes therein. If so, under Jones, appellant's failure to have raised any claims in his first federal petition, the essential facts supporting which were then known to him, would normally be sufficient to bar under Rule 9(b) any attempt to raise such claims in a subsequent petition, notwithstanding the absence during the prior proceeding of actual knowledge on the part of appellant personally of the legal significance of those supporting facts.

The question of what standard to apply to a petitioner wholly unrepresented by counsel at any time during the course of the relevant prior petition was not answered by this Court in Jones. We said there only that " [w]hen a petitioner was represented by competent counsel in a fully prosecuted writ he cannot by testimony of personal ignorance justify the omission of claims when awareness of those claims is chargeable to his competent counsel." Jones, 722 F.2d at 167 (emphasis added). We indicated in Jones that general principles of equity in Rule 9(b) cases of abuse "boil down to the idea" that such a petitioner may excuse the omission of a claim in a prior federal petition if he proves, for instance, that he did not then know of the previously unraised claim because it has been made possible by a change in the law since the prior writ or by facts not then known or reasonably knowable. Id. at 165. But we cautioned also that " [i]t is more difficult when we review the efforts of a pro se petitioner to meet his burden of proving excusable neglect. That difficulty surfaces in pro se cases as a greater tolerance for prisoner compliance with these described rules." Jones, 722 F.2d at 165. Our opinion in Jones did not question our prior suggestion in Vaughan v. Estelle, 671 F.2d 152 (5th Cir. 1982), that a pro se petitioner's ignorance of the legal significance of facts known to him at the time of an earlier petition might provide an excuse for failure to raise those issues in the prior proceeding. Id. at 153 & n. 5.

In opposition to the State's characterization, appellant asserts that counsel was appointed to represent him in his first federal habeas only for the single, narrowly circumscribed issue which was the expressly designated subject of the evidentiary hearing there, namely, appellant's claim of ineffective assistance of trial counsel in his state trial. Appellant thus urges that the question presented here is whether he, as a pro se petitioner who had not received the benefit of representation by competent counsel throughout the course of his prior federal habeas proceeding, should be held, nonetheless, to the Jones v. Estelle constructive knowledge standard in determining whether his failure in that previous proceeding to raise other issues suffices to bar him under Rule 9(b) from raising those issues in this successive petition.

Implicit Representation by Counsel

Appellant did have the benefit of counsel for at least some part of his prior federal habeas proceeding: Counsel was appointed to represent him at the evidentiary hearing held to consider appellant's claim of inadequate assistance of state trial counsel. It is therefore appropriate that we examine the actual scope of that hearing.

The district court's October 31, 1979 order with respect to that hearing was clear and unequivocal: "The evidentiary hearing will encompass all claims of ineffective assistance of counsel." (Emphasis added.) In the same order, the district court denied a request (presumably by appellant's counsel, who had been appointed several weeks earlier) to expand the evidentiary hearing to include appellant's Fourth Amendment search and seizure claims. Appellant argues that this indicates that the court restricted the scope of counsel's appointment to representation on only the narrow single issue of ineffective assistance of counsel at trial, and that the court's refusal to expand the scope of the hearing was tantamount to a refusal to allow counsel to represent appellant as to any other possible issues respecting that first petition. But we note that this search issue had already been decided by the court on the merits, and that, in the same breath as it declined to expand the subject matter of the scheduled hearing, the court noted that its refusal to expand the scope of the hearing "does not preclude a claim of ineffective assistance of counsel based on a failure of counsel to contest a search and seizure [i.e., at the convicting trial]." There is no admonition by the court that the ineffective assistance inquiry would necessarily be a narrow one; to the contrary, there is in the court's order an express indication (if not an invitation) that, within the context of examining "all claims of ineffective assistance of counsel," other issues, including even ones which already had been dismissed on their own individual merits, might nonetheless be raised as part of the process of determining whether appellant had received effective assistance of trial counsel. Appellant does not allege, and the record of the first federal habeas does not suggest, that appointed counsel actually was rebuffed by the court upon attempting to raise any issues--other than the search issue which the court had already decided--that lay outside the ostensibly circumscribed contours of the scheduled hearing, including any of the issues which appellant purports to raise for the first time in the present petition. Nor did the district court in any way instruct counsel that he could not raise other issues not already decided on the merits in some context other than that of the scheduled hearing; the court's order recites merely that the scheduled evidentiary hearing would encompass only the ineffective assistance of counsel claim.

Moreover, we think that it clearly would be incumbent upon any competent counsel examining a claim of ineffective assistance of trial counsel to have read the state record of trial--and arguably of appeal--in order to search out examples of ways, both specific and cumulative, in which appellant might have been inadequately represented in the pretrial and trial proceedings. Certain types of potential claims thus should have been considered by counsel, including especially any questions of constitutional dimension presented by the trial record, even in such a narrowly drawn context as this single-issue hearing.

In particular, appellant's present challenge to the penal statute under which he was convicted, on grounds of its alleged unconstitutionality, and his assertion that the jury charge contained multiple theories, are each based on matters appearing on the face of the state trial record which were necessarily obvious to both state trial counsel and to habeas counsel and, to the extent that they might have any validity as grounds for federal habeas relief on their own merits, would likewise constitute a basis for an assertion of ineffective assistance of state trial counsel. Counsel appointed for the hearing on ineffective assistance would have been bound to raise these issues, if they had any merit.¹⁴  Thus, regardless of how limited the representation implicated in the evidentiary hearing in appellant's first federal habeas proceedings may have been, it is inescapable that at the least these issues were precisely the kind which would have been searched for and evaluated, and which, if meritorious, would have been raised by appointed counsel.¹⁵ 

Thus, we cannot characterize appellant as a previously wholly pro se petitioner.¹⁶  Under the presumption of constructive attribution announced in Jones v. Estelle, we conclude that appellant is properly chargeable with the knowledge of his competent habeas counsel¹⁷  as to all issues necessarily implicated in that counsel's inquiry into appellant's claim of ineffective assistance of trial counsel. These include appellant's present claims that the convicting statute was unconstitutional and that the jury charge was improper, as well as the previously discussed claims concerning the pretrial display. Appellant has, therefore, forgone present consideration of these issues by virtue of not having presented them in his first federal petition.¹⁸ 

The Ineffective Assistance of Appellate Counsel Claim

Appellant's claim of ineffective assistance of counsel on state appeal may present a somewhat different question in this respect. The first federal habeas court's scope-of-hearing order would appear on its face to comprehend such a claim, but appellant in that petition had alleged only ineffectiveness of trial counsel. On his direct state appeal, appellant was represented by different counsel than had represented him at trial. We do not know whether appointed counsel at the first federal habeas read and evaluated the briefs filed on direct appeal. We need not consider this question, however, because this asserted ground for relief fails in any event.

An accused is entitled to the effective assistance of counsel on a direct appeal as of right. Evitts v. Lucey, --- U.S. ----, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). Here appellant's counsel duly perfected the appeal and filed a brief competently asserting error in allowing the victim's in-court identification on the ground that it resulted from an impermissibly suggestive pretrial display and in allowing testimony by third persons of the victim's pretrial identification. These points are addressed in the opinion affirming appellant's conviction. This is not a case, then, where counsel's deficiencies prevented any appellate review, as in Lucey, or where there was, by reason of actual conflict of interest or the like, effectively no appellate counsel, or where, similarly, appellate counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657 (1984) (emphasis added); Ricalday v. Procunier, 736 F.2d 203, 209 n. 6 (5th Cir. 1984).

That being the situation, a claim of ineffective assistance of counsel requires a particularized showing of an identifiable lapse in the performance of the attorney which when viewed under a "highly deferential" standard nevertheless falls "outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668-, 104 S. Ct. 2052, 2065, 2066, 80 L. Ed. 2d 674 (1984). This "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. 104 S. Ct. at 2064. See also Nealy v. Cabana, 764 F.2d 1173, 1174, 1177 (5th Cir. 1985). It is also the accused's burden to establish that the particular lapse was prejudicial, that there is "a reasonable probability" that but for the error the ultimate result would have been different. Strickland, 104 S. Ct. at 2068. The accused must "show how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, 104 S. Ct. at 2047 n. 26. See also Nealy v. Cabana, supra. The ultimate "benchmark" is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 104 S. Ct. at 2064; Nealy v. Cabana, at 1177.

Here appellant points to no identifiable lapse by his state appellate counsel, but merely claims that counsel refused to raise issues that appellant allegedly requested him to raise. However, appellant does not provide any specifics about what those issues might have been. This wholly fails to state a valid claim of ineffective assistance of counsel. " [M]ere conclusory allegations do not raise a constitutional issue in a habeas proceeding." Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). Counsel is not ineffective merely because he fails to raise an issue or issues requested by the appellant. See Winters v. Cook, 489 F.2d 174, 179-80 (5th Cir. 1973).¹⁹  Moreover, our examination of the state trial and appellate record fails to disclose any basis for a valid claim that counsel's omission to raise any issue or issues constituted ineffective assistance.²⁰  Finally, the state record reflects that the proceedings were fundamentally fair, that their result and the finding of guilt are reliable, and that no breakdown in the adversarial process rendered them otherwise. See Ricalday, 736 F.2d at 209 & n. 6.

Appellant's claim of ineffective assistance of counsel on direct appeal is without merit.

THE FORGED INDICTMENT CLAIM

Having thus rejected all of appellant's other claims, we turn to the one remaining ground for relief asserted in his third federal habeas application, namely, the claim that his state indictment was forged. Appellant alleges in his third federal habeas petition that

"F) The signature of the Foreman of the Grand Jury is forged. Based upon information and belief, petitioner claims that the signature of Harvey Cash, Foreman; is forged and is not the signature of said Harvey Cash. If in fact this is correct, petitioner's conviction is not based on a lawfully and sworn-to indictment, which is tantamount to Aggravated Kidnapping; and is a bar to all prosecution, in accordance to the Constitution of the United States.

"G) The indictment of this cause is fundamentally defective.... (8) is possibly forged and not a presentation of the grand jury." (Emphasis added.)

At oral argument, the State interpreted this claim to raise, not the question of a totally "manufactured" indictment, but only the claim that the indicting grand jury's foreman had failed to personally sign the indictment, impliedly recognizing the possibility that an unidentified third party had signed the foreman's name in his stead. The State cites McCullough v. State, 425 S.W.2d 359 (Tex.Crim.App.1968), for the proposition that a grand jury foreman's signature is not essential to the validity of an indictment. However, neither that case nor Ex parte Landers, 366 S.W.2d 567 (Tex.Crim.App.1963), which McCullough cites as authority for the proposition, nor the case cited in turn in Landers, Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777 (1951), involved indictments that were alleged to have been other than properly returned by a duly constituted grand jury. As we read them, McCullough and its predecessors properly stand only for the proposition that the mere absence of the grand jury foreman's signature on an indictment otherwise actually properly returned by the grand jury is not fatal to the indictment's validity.

Contrary to the State's construction of appellant's claim, we think that appellant has raised the question of whether his indictment was in fact returned by a grand jury, and, if not, whether he was therefore ever properly under the state trial court's jurisdiction.

In the proceedings below, the State did not assert that appellant should have previously raised this claim, and, indeed, inferentially admitted otherwise. Due to the very nature of the claim, it is not one of which appellant or any of his lawyers could be expected to have been aware. Appellant did not raise this claim in any forum prior to the dismissal of the first federal habeas. The State, beyond characterizing this claim as being "completely without merit" and "incredible beyond belief," has made no factual allegations by way of rebuttal. Appellant supports his claim with citations to cases which he allegedly discovered only after his first federal petition, and which, he asserts, purport to establish that the Dallas District Attorney's office was "manufacturing" fraudulent indictments during the period of time relevant to appellant's indictment.²¹ 

Moreover, we think that this allegation states grounds for which justice might well require that a federal court reach the merits of the issue, whether or not it were technically subject to dismissal under Rule 9(b), at least in the absence of a much clearer showing than this record affords that the claim was wrongfully withheld from the first federal habeas.²²  Jones v. Estelle, 722 F.2d at 165; Sanders v. United States, 373 U.S. 1, 18-19, 83 S. Ct. 1068, 1078-79, 10 L. Ed. 2d 148 (1982). We therefore reverse the district court's summary dismissal of this alleged ground for relief, and remand for further consideration of this issue.

We point out that there is no federal constitutional right to an indictment before trial in a state criminal action. Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884); see also Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972); Liner v. Phelps, 731 F.2d 1201, 1203-04 (5th Cir. 1984). In this Circuit, the sufficiency of a state indictment is not ordinarily a matter for federal habeas relief unless the indictment is shown to be so fundamentally defective as to have deprived the convicting court of jurisdiction to try the cause. Liner v. Phelps, 731 F.2d at 1203; Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980). As we indicated in Liner, federal habeas relief may "be invoked with respect to the sufficiency of an indictment only when the indictment is so fatally defective that under no circumstances could a valid conviction result from facts provable under the indictment, and that such a determination 'can be made only by looking to the law of the state where the indictment was issued.' Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir. 1983) (emphasis added)." 731 F.2d at 1203 (emphasis in original).

The Texas Constitution generally requires a grand jury indictment for all felony prosecutions.²³  So it is at least arguable, in the absence of case law or statutory authority to the contrary, that Texas courts would reach the conclusion that a wholly forged indictment does not confer criminal jurisdiction to the state trial court so that the "conviction" would be void. Cf. Hollingsworth v. State, 87 Tex.Cr.R. 248, 221 S.W. 978 (1920); King v. State, 473 S.W.2d 43, 48 & n. 11, 52 (Tex.Crim.App.1971). As noted, neither party has furnished us with any authority in point on this issue.²⁴ 

On remand, the district court therefore ought at least consider additional pleadings, so that it might perhaps dispose of this claim on the basis of a summary judgment; if necessary, it should develop an adequate factual record by appropriate means, including, if warranted, an evidentiary hearing. Cf. Guice v. Fortenberry, 661 F.2d 496, 500 (5th Cir. 1981). At such a hearing, the burden of proof would, of course, be on appellant.

CONCLUSION

We sustain the district court's dismissal of all claimed grounds for relief asserted in appellant's petition except the claim that the indictment on which he was prosecuted was forged. As to this one claim only, we reverse the district court and direct further proceedings in conformity herewith.

Accordingly, the judgment is AFFIRMED in part and REVERSED in part, and the cause is REMANDED to the district court for further proceedings consistent herewith.