IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 89-4883
HOSEY B. JOHNSON,
Petitioner-Appellant,
versus
EDWARD HARGETT, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(November 17, 1992)
Before BROWN, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Petitioner-Appellant Hosey B. Johnson filed this habeas
corpus petition, his second in federal district court,
alleging (1) prosecutorial misconduct for failure to comply
with a discovery request, and (2) ineffective assistance of
his prior federal habeas counsel for failing to raise the
prosecutorial misconduct claim in Johnson's first federal
habeas petition. The district court dismissed Johnson's
second habeas petition as an abuse of the writ. Johnson
timely appealed, claiming that his prior federal habeas
counsel's ineffectiveness excuses the failure to raise the
prosecutorial misconduct claim in the first federal habeas
petition. We disagree and, for the reasons set forth below,
affirm the district court.
I. BACKGROUND
In 1981, a Mississippi jury convicted Johnson of armed
robbery. His first prosecution ended in a mistrial. In the
second trial, as in the first, Johnson took the stand and
testified that he had been convicted previously of "armed
robbery." In truth, he had never been tried for or convicted
of that crime; he had merely acquiesced in the revocation of
his parole following an arrest for armed robbery.1 Evidence
of the nature of a parole violation would have been inadmissi-
ble under Mississippi law.2 But because Johnson's trial
counsel had not obtained a copy of Johnson's arrest and
conviction record (his so-called "rap sheet")--despite having
made an express discovery request for it--counsel did not know
that Johnson was mistaken about his prior criminal history and
thus could not have known that such erroneous testimony was
1
Throughout the protracted history of this case the crime alleg-
edly committed by Johnson while on parole has been variously
referred to as armed robbery, strong armed robbery, strong arm
robbery, strong-arm robbery, and robbery by assault. Our search
of Mississippi law has discovered only the crime of robbery with
a deadly weapon. See Miss. Code Ann. 97-3-79 (Supp. 1991).
Because the formal designation of this alleged crime makes no
difference to this case's resolution, however, we refer to it
throughout as simply "armed robbery."
2
Mississippi law prohibits inquiry into the nature of a parole
violation. Johnson v. Cabana (Johnson I), 805 F.2d 579, 582 (5th
Cir. 1986) (Wisdom, J., dissenting). Thus, in this case, poten-
tially prejudicial, excludable evidence was put before the jury.
See id.
2
inadmissible. Johnson did testify truthfully that he had been
convicted of aggravated assault, possession of marijuana, and
contributing to the delinquency of a minor.
After Johnson's conviction, his trial counsel obtained
the rap sheet and discovered that Johnson had never been
convicted of armed robbery. Nevertheless, trial counsel did
not argue prosecutorial misconduct, under Brady v. Maryland,3
on direct appeal to the Mississippi Supreme Court, which
affirmed Johnson's conviction.4
After the Mississippi Supreme Court denied his motion for
leave to proceed in error coram nobis, Johnson filed a pro se
petition for writ of habeas corpus in federal court. The
district court appointed new counsel to represent Johnson. In
this habeas petition Johnson alleged that his trial counsel
had been ineffective for failing to obtain the rap sheet--but,
as on direct appeal, never raised prosecutorial misconduct.
After an evidentiary hearing, the district court denied this
petition, and a divided panel of this court affirmed the
district court's denial of relief.5 Finally, in his petition
for rehearing, Johnson asserted that the panel opinion did not
address the prosecutor's affirmative duty to produce his rap
sheet--a claim never before raised, either in district court
3
373 U.S. 83 (1963).
4
Johnson v. State, 416 So.2d 679 (Miss. 1982), overruled on other
grounds, 487 So.2d 213, 216 (Miss. 1986).
5
Johnson I, 805 F.2d at 579.
3
or before this court on appeal. Nonetheless, the rehearing
motion was denied.
In May of 1987, Johnson filed a pro se petition with the
Mississippi Supreme Court to vacate his conviction under
Mississippi's Post-Conviction Collateral Relief Act raising
the claim of prosecutorial misconduct for failure to produce
his rap sheet. In July of 1987, the Mississippi Supreme Court
denied Johnson's petition without opinion.
In November of 1987, Johnson filed the instant habeas
petition, his second, alleging (1) prosecutorial misconduct
for failure to comply with the discovery request for his rap
sheet, and (2) denial of right to counsel at a pretrial
lineup.6 The district court held that Johnson's second
petition constituted an abuse of the writ and that, because
Johnson had been represented by counsel in his prior federal
habeas proceeding, his new petition was barred by Rule 9(b) of
the Rules Governing Habeas Corpus Cases for failure to bring
a claim that could have been asserted in a prior federal
habeas petition.7
6
The Magistrate Judge recommended that the district court
dismiss Johnson's claim for denial of counsel in a pretrial
lineup for failure to exhaust state remedies. In response
to the Magistrate Judge's recommendation, Johnson expressly
waived this claim.
7
28 U.S.C. § 2254 Rule 9(b) (1988). Rule 9(b) provides:
A second or successive petition may be dismissed if the
judge finds that it fails to allege new or different grounds
for relief and the prior determination was on the merits or,
if new and different grounds are alleged, the judge finds
that the failure of the petitioner to assert those grounds
4
On appeal of the denial of Johnson's second petition,
this court vacated the district court's order of dismissal and
remanded the case to the district court.8 We found that the
district court had erred in failing to give notice to Johnson
that it was considering dismissal under Rule 9(b) and in
failing to give him an opportunity to respond.
On remand, the Magistrate Judge notified Johnson that
dismissal under Rule 9(b) was being considered. The Magis-
trate Judge afforded Johnson an opportunity to respond by
providing him with Model Form #9 promulgated for use in
section 2254 cases involving a Rule 9 issue. The form
directed Johnson to explain why his successive petition should
not be dismissed under Rule 9(b).
After considering Johnson's response to Form #9, the
Magistrate Judge assumed without finding that Johnson's second
habeas petition presented a new claim under Rule 9(b), but
determined, citing Jones v. Estelle,9 that Johnson had not
provided a justifiable excuse for failing to raise the
prosecutorial misconduct claim earlier. Objecting to the
Magistrate Judge's recommendation, Johnson argued that his
prior federal habeas counsel was ineffective for failing to
argue the prosecutorial misconduct claim in his first federal
in a prior petition constituted an abuse of the writ.
8
Johnson v. Puckett (Johnson II), 860 F.2d 436 (5th Cir.
1988).
9
722 F.2d 159 (5th Cir. 1983) (en banc), cert. denied sub nom.
Jones v. McKaskle, 466 U.S. 976 (1984).
5
habeas petition.
The district court accepted the Magistrate Judge's
recommendation, and, in its order dismissing the petition,
noted that Johnson had argued ineffective assistance of prior
federal habeas counsel in response to the Magistrate Judge's
recommendation. The district court summarily dismissed
Johnson's argument. Citing Johnson's admission that the
prosecutorial misconduct claim existed at the time of trial,
the district court dismissed the petition under Rule 9(b) as
an abuse of the writ because Johnson failed to explain why he
could not have raised the issue of prosecutorial misconduct in
his first federal habeas petition. Further, the district
court, citing Judge Wisdom's dissent in Johnson I, noted, in
the alternative, that Johnson's prosecutorial misconduct claim
may have been considered and rejected in his first federal
habeas petition.
Within the time allowed for filing a notice of appeal,
Johnson filed a motion seeking a writ of mandamus, which a
panel of this court construed as a notice of appeal.
II. ANALYSIS
In this appeal Johnson asserts that the reason his Brady
claim was not included in his first habeas petition is that
his counsel on first habeas was ineffective. As a result,
argues Johnson, the first-time presentation of his Brady claim
in this, his second federal habeas petition, could not be an
abuse of the writ. He bases his claim of ineffective assis-
6
tance of prior federal habeas counsel on the contention that
a competent habeas counsel would have raised the issue of
prosecutorial misconduct in Johnson's first federal habeas
petition. For purposes of this case, we assume without
deciding that the rap sheet withheld from Johnson was in fact
Brady material.
After we heard this appeal, the Supreme Court held, in
McCleskey v. Zant,10 that the standard for determining whether
a habeas petitioner has abused the writ is the same as that
used to decide whether a petitioner's state procedural default
should be excused. Under McCleskey, if the government has met
its burden of pleading abuse of the writ,11 a petitioner
bringing a new claim in a successive or second habeas petition
must either show (1) both "cause" for not having raised the
claim earlier and "actual prejudice resulting from the errors
of which he complains," or, failing that, (2) that "a consti-
tutional violation probably has resulted in the conviction of
one innocent of the crime."12
We find that Johnson cannot demonstrate cause for his
failure to present his Brady claim in his first habeas
petition. "In order to demonstrate cause, the petitioner must
10
113 L.Ed.2d 517 (1991).
11
Id. at 533.
12
Id. at 544-45. "A court need not consider whether there is
actual prejudice to the petitioner when he fails to show cause."
Sawyer v. Whitley, 945 F.2d 812, 816 (5th Cir. 1991), affirmed
1992 U.S. LEXIS 3864.
7
show that the failure to raise the claim in his first petition
was due to some objective external factor such as interference
by officials."13 In the context of claims that have been
defaulted in state court because of a violation of procedural
rules--defaults to which the identical "cause and prejudice"
test applies--the Supreme Court has held that "counsel's
ineffectiveness will constitute cause only if it is an
independent constitutional violation."14 Thus, ineffective
assistance of counsel will constitute cause only when counsel
is constitutionally required under the Sixth Amendment. But
because there is no constitutional right to counsel in federal
habeas,15 under McCleskey, no error by counsel in an habeas
proceeding can constitute cause.16 In summary, therefore, even
if Johnson's first federal habeas counsel were found to have
been ineffective, that cannot be cause, under McCleskey, for
13
Sawyer, 945 F.2d at 816, quoting Murray v. Carrier, 477 U.S.
478, 488 (1986).
14
Coleman v. Thompson, 115 L.Ed.2d 640, 672 (1991); see also
Murray, 477 U.S. at 488 ("So long as defendant is represented by
counsel whose performance is not constitutionally ineffective
under the standard established in Strickland v. Washington, [466
U.S. 668 (1984)], we discern no inequity in requiring him to bear
the risk of attorney error that results in procedural default.").
15
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right
to appointed counsel extends to the first appeal of right, and no
further."). See also Wright v. West, 1992 U.S. LEXIS 3689, at 22
("[C]onstitution guarantees no right to counsel on habeas.");
Saahir v. Collins, 956 F.2d 115, 118 (5th Cir. 1992) (inmate's
pro se status not an external factor preventing claim in prior
habeas petitions).
16
Accord Harris v. Vasquez, 949 F.2d 1497, 1514 (9th Cir. 1990)
(claiming ineffectiveness of federal habeas counsel).
8
Johnson's failure to raise the Brady claim in the first round
of federal habeas.
Having failed to establish cause for his default, Johnson
may nevertheless have his Brady claim considered in this
second federal habeas petition if he can show that "a consti-
tutional violation probably has caused the conviction of one
innocent of the crime."17 The Supreme Court has made clear
that the term "actual innocence" means factual, as opposed to
legal, innocence--"legal" innocence, of course, would arise
whenever a constitutional violation by itself requires
reversal, whereas "actual" innocence, as the Court stated in
McCleskey, means that the person did not commit the crime.18
McCleskey's discussion of the narrow actual innocence
exception derives from the plurality's discussion of actual
innocence in Kuhlmann v. Wilson.19 Kuhlmann, in turn,
describes actual innocence as meaning that there is a fair
probability that, in light of all the evidence, a reasonable
trier could not find all the elements necessary to convict the
17
McCleskey, 113 L.Ed.2d at 545.
18
See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (petitioner
must show colorable claim of factual innocence even though
evidence of guilt may have been unlawfully admitted); McCleskey,
113 L.Ed.2d at 550 (petitioner cannot demonstrate alleged Massiah
violation caused conviction of innocent person); Dugger v. Adams,
489 U.S. 401, 412, n. 6 (1989) (actual innocence requires more
than showing of constitutional error, even when verdict would
have been different absent error).
19
477 U.S. 436 (1986).
9
defendant of that particular crime.20 Thus, under this
standard, Johnson would actually be innocent of the crime for
which he was charged and convicted--armed robbery as defined
under Mississippi law--if the jury could not have reasonably
found that he was armed when he committed the robbery.21
Here, we cannot find that a reasonable jury could not
have found that Johnson committed armed robbery, even had
Johnson's erroneous testimony about his prior armed robbery
conviction been excluded. Johnson testified that he received
20
Kuhlmann, 477 U.S. at 455, n. 17, cited in Sawyer, 1992 U.S.
LEXIS at 13, n. 5.
21
The concept of "innocence of the crime" means that the consti-
tutional violation resulted in the conviction of one who was
innocent of the particular crime for which he or she was charged
and convicted--not that the petitioner was not present at the
scene of the offense. Kuhlmann's key language is largely a quote
from Judge Friendly's article advocating an actual innocence
requirement in habeas:
A prisoner does not make a colorable showing of innocence
"by showing that he might not, or even would not, have been
convicted in the absence of evidence claimed to have been
unconstitutionally obtained." Rather, the prisoner must
"show a fair probability that, in light of all the evidence,
including that alleged to have been illegally admitted (with
due regard to any unreliability of it) and evidence tenably
claimed to have been wrongly excluded or to have become
available only after the trial, the trier of the facts would
have entertained a reasonable doubt of his guilt." Thus,
the question whether the prisoner can make the requisite
showing must be determined by reference to all probative
evidence of guilt or innocence.
91 L.Ed.2d at 381 n. 17 (internal citations omitted; emphasis in
original), citing Judge Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,
160 (1970). This seems to us to be akin to the standard in
Jackson v. Virginia, 443 U.S. 307 (1979), under which a person
cannot be guilty of a crime if a reasonable jury would entertain
a reasonable doubt about any element of the crime.
10
the stolen automatic teller cards from a friend. This
statement conflicts, however, with the victim's identification
of Johnson and testimony that Johnson approached and robbed
him of his wallet at gunpoint. Thus, even in the total
absence of Johnson's erroneous testimony of a prior conviction
for armed robbery, the eyewitness testimony of Johnson's use
of a gun is more than sufficient to enable a reasonable jury
to return a guilty verdict of armed robbery.
III. CONCLUSION
We find that the district court correctly determined that
Rule 9(b) bars consideration of Johnson's claim of prosecuto-
rial misconduct raised for the first time in this, his second,
federal habeas petition because that claim could have been
raised previously. Ineffective assistance of first habeas
counsel cannot be "cause" for Johnson's failure to assert
prosecutorial misconduct in his first habeas petition as there
is no constitutional right to counsel in habeas. Neither do
we find that Johnson has a claim of actual innocence, which,
if established, would allow us to address the merits of
Johnson's new claim of prosecutorial misconduct. Even absent
the erroneous evidence of Johnson's prior conviction for armed
robbery, a reasonable jury could have based a verdict of armed
robbery under Mississippi law on the victim's testimony that
Johnson was armed when he committed the robbery. If true, the
acts ascribed to the state prosecutor--deliberate use of false
inculpatory testimony from this undereducated defendant,
11
represented by appointed counsel whose ignorance of the error
of his client's inculpatory testimony resulted from the
prosecutor's purposeful withholding of discoverable evidence--
would probably constitute good cause for reversal. Neverthe-
less, for Johnson to raise that issue for the first time in
his second habeas corpus petition is an abuse of the writ
under the circumstances of this case. Therefore, the judgment
of the district court denying Johnson's petition is
AFFIRMED.
JOHN R. BROWN, Circuit Judge, dissenting.
Despite the exhaustive opinion of Judge Wiener, I cannot
believe that under the guidance of the Supreme Court the law
has gotten to the point where federal courts in habeas
proceedings can be denied the opportunity to hear and decide
whether three distinct, now unquestioned, constitutional
errors resulted in a sentence for life.
The frustrations of Tantalus pale in comparison to the
exasperation Hosey Johnson must have felt as, time and again,
his Sisyphean pleas fell on unhearing (or at least unlisten-
ing) ears, a result of the shortcomings of those charged with
seeing to it that Johnson received fairness under our system
of justice. As his odyssey through the state and federal
courts unfolds below, a picture emerges of step after inept
step, fostered by hypertechnicalities, producing a series of
12
hollow "days in court," devoid of real substance, never
considering the merits of Johnson's facially meritorious
claims.
The central undisputed fact is that twice--first in a
mistrial and then in a full trial--Johnson was permitted to
prejudice himself by his own self-condemning but mistaken
testimony solely because his trial counsel twice did not
bother to follow through on his own discovery request and
because the prosecutor twice sat mute during Johnson's
mistaken testimony, knowing full well that he (the prosecutor)
had withheld discoverable information the delivery of which
would have prevented Johnson's own self-destructive testimony.
That such an injustice was allowed to happen in the first
place is bad enough; that repeated efforts to have such
improprieties repudiated and expunged through direct and
collateral appeals only to be frustrated procedurally--most
recently as an "abuse of the writ"--cries out for correction.
Johnson erroneously testified during his trial that he
had been convicted of strong armed robbery. The misconduct of
the prosecutor in failing to deliver Johnson's rap sheet to
trial counsel might well have affected the jury's verdict on
the guilt-innocence issue, and, even more likely, could have
affected the jury's decision to assess life imprisonment.
I would REVERSE the judgment of the district court
dismissing Johnson's second habeas petition, and REMAND this
case for such action as the court would then direct.
I, therefore, dissent.
14