United States Court of Appeals,
Fifth Circuit.
No. 93-1132.
William Ray McGARY, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institution Division, Respondent-Appellee.
Aug. 3, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
GOLDBERG, Circuit Judge:
William Ray McGary appeals the district court's dismissal of
his second application for federal habeas corpus relief. In this
application, McGary argued that he was unconstitutionally deprived
of approximately 30 days of good time credit. Because we agree
with the court below that McGary's second habeas application
constitutes an abuse of the writ, we affirm the district court's
judgment.
I. Facts and Proceedings Below
In 1985, William Ray McGary was convicted of murder and
sentenced to life imprisonment. He served more than three and one
half years of this sentence before his conviction was reversed and
his case was remanded for a new trial. See McGary v. State, 750
S.W.2d 782 (Tex.Crim.App.1988). McGary subsequently pleaded guilty
to one count of murder. A state district court then sentenced him
to a 25-year term of imprisonment. McGary did not appeal this
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conviction.
After exhausting available state remedies, McGary filed his
first federal petition for a writ of habeas corpus on September 20,
1989. In that petition, he argued that by re-prosecuting him, the
State of Texas violated the Double Jeopardy Clause of the Fifth
Amendment to the Constitution. In a set of supplemental pleadings,
McGary attempted to raise the same good time credit claim in his
first habeas proceeding that he now asserts in his second habeas
proceeding. However, since McGary had failed to exhaust his
available state remedies on the good time credit claim, he
voluntarily withdrew the supplemental pleadings on that issue in
his first habeas proceeding. The district court denied McGary's
application for habeas relief on the double jeopardy claim with
prejudice, and we denied a motion for a certificate of probable
cause. McGary then pursued the available state remedies on his
good time credit claim to no avail.
In December of 1992, proceeding pro se and in forma pauperis,
McGary filed a second application for federal habeas corpus relief.
In this application, McGary argued that the Texas Department of
Corrections ("TDC") unconstitutionally deprived him of good time
credit to which he was entitled. More specifically, McGary claimed
that he was entitled to receive approximately 30 days of good time
credit under the Texas Prison Management Act ("PMA"), but that he
was denied this credit by an unconstitutional, ex post facto
2
application of certain amendments to the PMA.1 We have previously
held that a retroactive application of an amendment to the PMA that
denies a prisoner the opportunity to be considered for good time
credit violates the Ex Post Facto Clause of the federal
Constitution. See Story v. Collins, 920 F.2d 1247, 1251 (5th
Cir.1991).2
Upon the state's motion, the district court dismissed McGary's
second habeas petition as an abuse of the writ. We granted McGary
a certificate of probable cause to consider whether a prisoner may
challenge a TDC denial of a request for good time credit in a
federal habeas proceeding when that prisoner has previously filed
an unsuccessful federal habeas application on a separate issue.
II. Discussion
A district court's decision to dismiss a second or subsequent
federal habeas petition for abuse of the writ lies within its sound
discretion. We will reverse such a dismissal only if we find an
abuse of that discretion. Sanders v. United States, 373 U.S. 1,
1
The provisions of the Prison Management Act, as they appear
now, are codified in chapters 498 and 499 of the Texas Government
Code.
2
In fact, the contours of McGary's good time credit claim
are not sharply defined, and we are not certain that McGary's
grievance necessarily involves a violation of the federal
Constitution. Accordingly, it is not clear that McGary's
complaint entitles him to federal habeas relief. See Reed v.
Farley, --- U.S. ----, ----, 114 S.Ct. 2291, ----, --- L.Ed.2d --
-- (1994) ("A state prisoner may obtain federal habeas corpus
relief "only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.' ")
(quoting 28 U.S.C. § 2254) (emphasis omitted). Nevertheless, for
the purposes of this opinion, we will assume that McGary's good
time credit claim entails an unconstitutional, ex post facto
application of an amendment to the PMA.
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18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); Hudson v.
Whitley, 979 F.2d 1058, 1062 (5th Cir.1992). A court abuses its
discretion when it bases its decision on an erroneous legal
conclusion or on a clearly erroneous finding of fact.
In Story v. Collins, supra, we confronted a case closely
analogous to the one we face today. In Story, a state prisoner
claimed that the TDC unconstitutionally refused to consider his
application for good time credit. The state prisoner raised that
claim in a petition for a writ of habeas corpus that also included
several other bases for habeas relief. The state argued that Rule
2(d) of the Rules Governing Section 2254 Cases required the state
prisoner to raise his good time credit claim in a separate habeas
application. Rule 2(d) provides as follows:
A petition shall be limited to the assertion of a claim for
relief against the judgment or judgments of a single state
court (sitting in a county or other appropriate political
subdivision). If a petitioner desires to attack the validity
of the judgments of two or more state courts under which he is
in custody or may be subject to future custody, as the case
may be, he shall do so by separate petitions.
Observing that Rule 2(d) limits the assertion of claims for relief
raised in a habeas petition to "the judgment or judgments of a
single state court", the state argued that the prisoner's good time
credit claim attacked a ruling of the TDC while the prisoner's
other bases for habeas relief attacked the decision of another
court. The state thus concluded that the prisoner was required to
raise his good time credit claim in a separate habeas petition. We
rejected the state's contention and explained that, for the
purposes of Rule 2(d), "[t]he TDC is not a state court, and the
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application of good conduct time is not a judgment." Story, 920
F.2d at 1251. We recognized that the prisoner's good time credit
claim "attacks the conditions of his restraint under his judgment
of conviction." Id. We therefore held that the prisoner was not
required to bring his good time credit claim in a separate habeas
petition.
In Story, we did not explicitly hold that a state prisoner who
is confined on a single judgment of conviction and who has a
challenge to a denial of good time credit is usually required to
bring his or her existing good time credit claim in the same habeas
petition as any other claim that he or she has against his or her
conviction. Today, we so hold. Because McGary's good time credit
claim attacks the conditions of his restraint under the judgment of
conviction for murder, and because he plainly knew of that claim
when he filed his first federal habeas petition, McGary was
required to raise his good time credit claim in his first petition
for habeas relief.
We reach this conclusion because Rule 9(b) of the Rules
Governing Section 2254 Cases provides that a judge may dismiss a
second or subsequent petition for habeas relief if the petition
fails to allege new or different grounds for relief, or—when a new
ground for relief is alleged—if the failure to raise that ground in
a prior petition constitutes abuse of the writ. Rule 9(b), Rules
Governing Section 2254 Cases; Drew v. Collins, 5 F.3d 93, 95-96
(5th Cir.1993). Raising a new or different ground for habeas
relief in a second or subsequent habeas petition constitutes abuse
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of the writ unless the petitioner can show both "cause" and
"prejudice"—in other words, both a legitimate excuse for failing to
include the new claim in a previous federal petition and actual
harm from the error claimed. McCleskey v. Zant, 499 U.S. 467, 111
S.Ct. 1454, 113 L.Ed.2d 517 (1991); Drew, 5 F.3d at 96.3 "The
requirement of cause in the abuse of the writ context is based on
the principle that [the] petitioner must conduct a reasonable and
diligent investigation aimed at including all relevant claims and
grounds for relief in the first federal habeas petition."
McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472. To demonstrate
cause, the petitioner must show that some "external impediment,
whether it be government interference or the reasonable
unavailability of the factual basis for the claim, must have
prevented [the] petitioner from raising the claim.... [T]he
question is whether [the] petitioner possessed, or by reasonable
means could have obtained, a sufficient basis to allege a claim in
the first petition and pursue the matter through the habeas
process." Id. If a petitioner cannot establish cause, a district
court will find that the prisoner has abused the writ. However,
the McCleskey Court suggested that "if [a] petitioner cannot show
cause, the failure to raise the claim in an earlier petition may
nonetheless be excused if he or she can show that a fundamental
miscarriage of justice would result from a failure to entertain the
3
We have rejected the contention that the cause and
prejudice standard does not apply to pro se habeas petitioners.
See Saahir v. Collins, 956 F.2d 115, 118 (5th Cir.1992)
("McCleskey draws no distinction between pro se petitioners and
those represented by counsel.").
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claim." Id. 499 U.S. at 494-95, 111 S.Ct. at 1470. We have
explained that a " "fundamental miscarriage' implies that a
constitutional violation probably caused the conviction of an
innocent person." Jones v. Whitley, 938 F.2d 536, 541 (5th Cir.),
cert. denied, --- U.S. ----, 112 S.Ct. 8, 115 L.Ed.2d 1093 (1991);
see also Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120
L.Ed.2d 269 (1992) (explaining that the fundamental miscarriage of
justice exception to the abuse of the writ doctrine ensures that
federal constitutional errors do not result in the incarceration of
innocent persons.).
In the present case, the state correctly observed in its
motion to dismiss that McGary attempted to raise his good time
credit claim in his first application for habeas relief, but
voluntarily withdrew that claim from consideration before the
district court entered judgment in that case. The state thus
adequately satisfied its burden of pleading abuse of the writ. To
avoid a finding that his second petition constituted an abuse of
the writ, McGary was then required to show both cause for his
failure to raise his good time credit claim in his first habeas
proceeding and prejudice resulting therefrom. However, "[a]
failure to raise a claim in the first petition may not be excused
for cause if the claim was reasonably available at that time."
Selvage v. Collins, 975 F.2d 131, 133 (5th Cir.1992) (on petition
for rehearing), cert. denied, --- U.S. ----, 113 S.Ct. 2445, 124
L.Ed.2d 663 (1993). McGary has not—indeed, he cannot—show that he
did not know of his good time credit claim when he filed his first
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application for habeas relief. McGary plainly knew of the facts
and legal theories that formed the basis of his good time credit
claim when he filed his first federal habeas petition. He briefly
attempted to interject the issue in his first habeas proceeding,
but later voluntarily dropped it. McGary's good time credit claim
was thus reasonably available to him when he filed his first
federal habeas petition. McGary's evanescent memory does not
excuse his failure to assert the good time credit issue in his
initial habeas petition.
McGary asserts that his failure to have exhausted the
available state remedies on his good time credit claim when he
filed his first habeas petition constitutes cause for failing to
include that claim that petition. We have repeatedly rejected this
argument. More than a decade ago, we wrote that "the sole fact
that the new claims were unexhausted when the earlier federal writ
was prosecuted will not excuse their omission." Jones v. Estelle,
722 F.2d 159, 168 (5th Cir.1983) (en banc), cert. denied, 466 U.S.
976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); see also Rudolph v.
Blackburn, 750 F.2d 302, 305 (5th Cir.1984) (quoting same). McGary
cannot be allowed to rely on his failure to exhaust state remedies
on his good time credit claim to justify his failure to include
that claim in his first habeas application. We do not accept his
proposition that, in this case, two wrongs make a right.
McGary also argues that the abuse of the writ doctrine
applies only to deliberate decisions not to include all of one's
claims in a single habeas petition. He is mistaken. "Abuse of the
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writ is not confined to instances of deliberate abandonment."
McCleskey, 499 U.S. at 489, 111 S.Ct. at 1467. At one point,
McGary suggests that the prohibition against second or subsequent
habeas petitions that raise new or different claims applies only to
second or subsequent petitions that proclaim a petitioner's
innocence. We find no basis for such a reading of the abuse of the
writ doctrine. Indeed, case law points in the opposite direction.
See Herrera v. Collins, --- U.S. ----, 113 S.Ct. 853, 122 L.Ed.2d
203 (1993); Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120
L.Ed.2d 269 (1992).
Finally, we do not find that a fundamental miscarriage of
justice would result from a failure to entertain McGary's good time
credit claim. As noted above, the "fundamental miscarriage of
justice" standard has only been applied to allow prisoners who
claim actual innocence to file second or subsequent habeas
petitions that would otherwise be considered abusive. Nothing in
the record even intimates that McGary is innocent. Hence, our
refusal to address McGary's good time credit claim will not result
in a fundamental miscarriage of justice.
McGary cannot show that he had cause for his failure to raise
his good time credit claim in his first habeas petition.
Accordingly, we need not address whether McGary can show that he
was prejudiced by his failure to raise the good time credit issue
in his first federal habeas petition. The district court correctly
dismissed McGary's second habeas petition as an abuse of the writ.
The law requires federal habeas petitioners to assert in their
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first habeas application all claims known of, all claims that
should have been known of, and all claims that had been known of.
By failing to voluntarily dismiss his first habeas petition after
he realized that he had not exhausted the available state remedies
for his good time credit claim (or by failing to ask for a stay of
his first habeas proceeding), McGary effectively waived his
opportunity to raise that issue in a second habeas application.
Second or subsequent petitions for federal habeas relief are
justified on the ground that prisoners should not be deprived of a
federal right if the failure to assert that right in a prior habeas
petition was not due to anything they could have done. This rule
demonstrates that we do not base the determination of potentially
abusive habeas petitions on the number of petitions that preceded
it. We base such determinations on what was reasonably available
when the previous petitions were filed. Nevertheless, this is not
a case in which the prisoner's failure to assert his federal right
in an earlier habeas application can be excused. McGary could
have, and should have, raised his double jeopardy claim and his
claim for loss of good time credit in a single petition for habeas
relief.
III. Conclusion
The judgment of the district court is AFFIRMED.
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