IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2009
No. 07-40833 Charles R. Fulbruge III
Clerk
JOHNNIE R PROPES
Petitioner - Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before KING, STEWART, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Johnnie R. Propes, Texas prisoner #1178904, appeals the district court’s
dismissal of his application for a writ of habeas corpus. The court found the
petition to be successive, and Propes had not received permission from this court
to file a successive request for habeas relief.
We granted Propes a certificate of appealability (“COA”) on two issues.
One was whether an application should be considered successive when the
application form given to the prisoner instructed that “only one” box be checked
for the type of proceeding he sought to challenge, and also said “only judgments
entered by one court may be challenged in a single petition.” The other was
No. 07-40833
whether law-of-the-case implications arose from a different panel’s denial of
Propes’s motion for leave to file a successive application. We AFFIRM.
I. BACKGROUND
In June 2003, Propes was convicted of murder in Texas state court and
sentenced to eighteen years in prison. The conviction was affirmed on direct
appeal to the Texas Fifth District Court of Appeals. Propes v. State, No. 05-03-
01122-CR, 2004 WL 1328084 (Tex. App.—Dallas June 15, 2004, pet. ref’d) (mem.
op., not designated for publication). The Texas Court of Criminal Appeals
refused his petition for discretionary review. Id.
Propes filed his first federal habeas application in the Western District of
Texas in February 2005. In the petition, he challenged only a disciplinary
proceeding and not his conviction. Propes had been disciplined for threatening
harm in the prison to “an officer or any other person who is not an offender.”
Restrictions and loss of privileges were the penalties. The district court
dismissed with prejudice in March 2006, concluding that Propes had failed to
assert a deprivation of any right secured by the constitution or federal law. It
is this 2005 petition that has been found to block his present habeas filing.
While the just-described federal application was pending, Propes filed a
state habeas application in November 2005. There, Propes challenged his
murder conviction. The Texas Court of Criminal Appeals denied that application
without a written order in February 2007. In March 2007, Propes filed the
present federal habeas application in the Eastern District of Texas. In this
petition, Propes again challenged his murder conviction, alleging that he
received ineffective assistance of counsel during his murder trial. In May 2007,
a magistrate judge entered a report and recommendation on Propes’s petition.
Propes’s application was to be dismissed as successive unless he showed, within
ten days, that he had received permission from this court to file a successive
petition. Propes objected to the report and recommendation, arguing that the
2
No. 07-40833
form he had been given caused him to believe it would be improper to join other
claims. The district court adopted the report and recommendation in August
2007. A final judgment was entered dismissing Propes’s application without
prejudice. The district court did not address Propes’s arguments with respect
to the form provided to habeas applicants. Propes filed a motion for a COA with
the district court, which it denied.
Propes then appealed the district court’s denial of a COA. Propes also
filed a number of pleadings that were construed as a motion for leave to file a
successive habeas petition. These additional pleadings were docketed as a
separate action under a different docket number.
While Propes’s motion for a COA was still pending, a panel of this court
denied his motion for leave to file a successive petition. The panel noted the
argument that his proposed application “should not be considered successive
because his prior application did not challenge his murder conviction but rather
challenged a disciplinary conviction.” The panel concluded that because Propes
could have raised the challenges to his conviction in his February 2005
application regarding the disciplinary matters, his second petition was
successive. The panel further determined that Propes failed to explain why his
claims met the requirements for filing a successive habeas application. After the
panel’s dismissal, Propes was granted the COA we have already described.
II. DISCUSSION
“In reviewing requests for federal habeas corpus relief, we review the
district court’s findings of fact for clear error, but review issues of law de novo.”
Myers v. Johnson, 76 F.3d 1330, 1333 (5th Cir. 1996) (citation omitted).
As an initial matter, the State argues that Propes has failed to brief either
of the issues certified for appeal and has therefore waived all claims. Propes’s
pro se pleadings are both voluminous and difficult to follow. Moreover,
considerable portions of his submissions are devoted to issues not certified for
3
No. 07-40833
appeal, including the merits of the underlying attack on his conviction. Propes’s
initial brief, reply brief, and supplemental reply do, however, address the two
issues certified for appeal, making arguments regarding the proper resolution
of these questions and citing case law in support of his position. “Briefs by pro
se litigants are afforded liberal construction . . . .” Johnson v. Quarterman, 479
F.3d 358, 359 (5th Cir. 2007). Propes’s submissions do enough to avoid waiver.
A. Law-of-the-Case Doctrine
Propes argues that the prior panel’s denial of leave to file a successive
habeas application was improper and should not prevent the court from
considering the issues in this appeal. Liberally construing Propes’s filings, he
further asserts that such denial would work a fundamental injustice if not
corrected through this panel’s reconsideration of the issue.
Propes’s basic theory is that the form provided to inmates for filing habeas
petitions is misleading and conflicts with this court’s precedents regarding the
submission of successive applications for habeas relief. We will discuss this
argument in more detail later, once we analyze whether the law-of-the-case
doctrine bars consideration of this issue.
The State’s argument is that when the prior panel denied Propes leave to
file a successive habeas application, it explicitly decided the sole issue presented
now, namely, whether Propes’s second habeas petition is successive. The law-of-
the-case doctrine provides that an explicit or necessarily implied resolution of a
legal issue by an appellate court becomes that case’s law and is to be followed in
the subsequent proceedings in the case. Goodwin v. Johnson, 224 F.3d 450, 457
(5th Cir. 2000). The doctrine “is a rule of convenience and utility and yields to
adequate reason, for the predecessor judge could always have reconsidered his
initial decision so long as the case remained in his court.” Loumar, Inc. v. Smith,
698 F.2d 759, 762 (5th Cir. 1983).
4
No. 07-40833
There are three recognized exceptions to the law-of-the-case doctrine.
Generally, when the doctrine applies, “a request to revisit a prior decision will
be declined, unless (i) the evidence on a subsequent trial was substantially
different, (ii) controlling authority has since made a contrary decision of the law
applicable to such issues, or (iii) the decision was clearly erroneous and would
work . . . manifest injustice.” Goodwin, 224 F.3d at 457-58 (internal quotation
marks and citation omitted).
The discretion to be exercised by an appellate court is affected “by the
nature of the first ruling and by the nature of the issues involved. If the ruling
is avowedly tentative or the issues especially important, it may be said that law-
of-the-case principles do not apply.” 18B C HARLES A LAN W RIGHT, A RTHUR R.
M ILLER & E DWARD H. C OOPER, F EDERAL P RACTICE AND P ROCEDURE § 4478.5, at
790 (2d ed. 2002). Matters of subject-matter jurisdiction, appellate jurisdiction,
or justiciability are more likely to be reconsidered because of their conceptual
importance. Id. When “the initial determination was made by an appeals
court’s motion panel,” reconsideration is particularly apt. Id. at 800, 802.
Although a motions panel of this court denied Propes leave to file a
successive habeas application, Propes’s present arguments regarding the form
provided to him were not before the court. Moreover, the panel was exercising
a gatekeeping function in ruling on Propes’s request for leave to file a successive
petition; it did not consider the issue as part of an adversarial proceeding.
Accordingly, to the extent that Propes’s present claim implicates the law-
of-the-case doctrine, we exercise our discretion to review whether Propes’s
habeas petition was properly dismissed as successive.
B. Successive Petitions
We first examine whether this petition, under the usual analysis, should
be considered successive. If it is, then Propes’s arguments concerning the form
that he was given to use will become relevant.
5
No. 07-40833
Section 2244 of the Antiterrorism and Effective Death Penalty Act
requires that a petitioner obtain an order authorizing the district court to
consider a second or successive habeas petition before the petitioner may file
such application. 28 U.S.C. § 2244(b)(3)(A). The requirement creates a
gatekeeping mechanism for the district court’s consideration of successive
applications for habeas relief. Felker v. Turpin, 518 U.S. 651, 657 (1996). There
is not, however, a definition in the AEDPA of the term “second or successive”
application. Hardemon v. Quarterman, 516 F.3d 272, 275 (5th Cir. 2008). A
petition is not second or successive merely because it follows an earlier federal
application. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003). It is successive
when it either presents a challenge to the petitioner’s conviction or sentence that
could have been presented in an earlier petition or can be said to be “an abuse
of the writ.” Id. at 836-37.
In Crone, the petitioner filed an initial federal habeas petition challenging
his conviction and sentence and a second federal habeas application challenging
a disciplinary proceeding. Id. at 835. The petitioner argued that his subsequent
petition was not successive and that he was not required to raise his challenge
to the disciplinary proceeding in his initial application because it was
unexhausted at the time the initial petition was filed. Id. at 837. In considering
whether Crone’s second habeas petition was successive, this court looked to pre-
AEDPA abuse-of-the-writ principles.
Under the abuse-of-the-writ doctrine, a subsequent petition is
second or successive when it raises a claim that was, or could have
been, raised in an earlier petition. In accordance with our strong
policy against piecemealing claims, we have long held that under an
abuse of the writ standard, the sole fact that the new claims were
unexhausted when the earlier federal writ was prosecuted will not
excuse their omission.
Id. (internal quotation marks and citations omitted). Crone’s second petition
was found to be successive because the challenge to the disciplinary proceeding
6
No. 07-40833
could have been brought in the first application because he knew of the facts
underlying that claim at that time. Id. at 838.
The court also held that had Crone in his first petition joined a challenge
to his disciplinary proceedings to an attack on his conviction, the entire petition
should have been dismissed without prejudice. Id. at 837. Petitions that mix
exhausted and unexhausted claims should be dismissed until exhaustion is fully
accomplished, or else there will be piecemeal consideration of the claims. Id.
The next petition, after exhaustion, would not be successive. Id. The key is
whether the unexhausted claim arose prior to the Section 2254 filing.
We apply these principles. The alleged errors in Propes’s conviction, which
are the targets of the challenge he now presents in a second habeas filing,
occurred before Propes made his first habeas filing. That fact makes the second
habeas petition successive under the AEDPA. United States v. Orozco-Ramirez,
211 F.3d 862, 869 (5th Cir. 2000). It is true that Propes had not yet exhausted
his claims to the conviction in state court at the time he filed his initial petition
for habeas relief. Under Crone, he still was required to join his claims.
Propes also argues that the Texas Department of Criminal Justice’s
disciplinary action against him was a separate ruling by a separate court. We
have already held that the Texas Department of Criminal Justice is not a “state
court” and that its disciplinary decisions are not judgments. See Story v. Collins,
920 F.2d 1247, 1251 (5th Cir. 1991). Instead, a challenge to a disciplinary
proceeding is considered a challenge to the administration of the sentence for the
underlying conviction. Id.
Next, Propes finds support from our earlier decision that a petitioner may,
but is not required to, challenge separate convictions from the same court in a
single habeas application. Hardemon, 516 F.3d at 275-76. That rule is
inapplicable because as we stated in the just-discussed Collins decision,
disciplinary proceedings do not result in separate judgments. There is one
7
No. 07-40833
judgment that has placed Propes in prison. Included within the results of that
judgment are disciplinary proceedings that occur while he is subject to the
conviction. There is, of course, still a requirement that the claims could actually
have been brought together. Disciplinary actions that occur after a petition for
habeas relief on the conviction has been presented and resolved could not have
been brought in the earlier petition and would not be subject to this bar. The
AEDPA concerns for abuse of the writ lead to stringent requirements for the
bringing of claims, but not impossible ones.
We therefore conclude that when Propes challenged his state court
conviction, he filed a successive petition that would be barred under the AEDPA
absent some principle allowing removal of the bar. The exceptional principle he
argues is that the court itself misled him. He focuses us on the form provided
to him as an inmate for filing his habeas application. Propes contends that the
form directed him not to join to his claims about the disciplinary proceedings any
separate challenge such as he now makes to his conviction.
The record contains his 2005 petition for a writ of habeas corpus. It is a
printed form specifically for Section 2254 petitions. Propes completed it by
filling in the blanks with handwritten information. We do not know if all federal
district courts in Texas would have used the same form, but the form itself on
the first page contains a blank for identifying which U.S. District Court in Texas
is the one in which the petition is to be filed.
Two sections of the form are said to be the ones that misled Propes. The
first is in one of the general instructions on the first two pages of the form:
5. Only judgments entered by one court may be challenged in a
single petition. If you want to challenge judgments entered by
different courts, either in the same state or in different states, you
must file separate petitions as to each court.
8
No. 07-40833
We find no error in this instruction. We have already discussed that a
disciplinary matter is not a separate judgment. A petitioner is to bring claims
against a judgment and claims that arise from disciplinary matters that occur
during incarceration under that judgment in the same proceeding. Collins, 920
F.2d at 1251. Instruction 6 required an inmate to “[i]nclude all your grounds for
relief and all the facts that support each ground for relief in this petition.” A
challenge to disciplinary actions taken against an inmate while serving under
a judgment of conviction, and a challenge to the conviction itself, are different
grounds of relief on the same judgment. Those have to be brought together.
Instruction number 5 was correct.
The more troubling portion of the form is the initial set of blanks to be
completed, which immediately follow the general instructions:
What are you challenging (check only one)
G A judgment of conviction or sentence, probation or deferred-
adjudication probation. (Answer Questions 1-4, 5-12, & 20-23)
G A parole revocation proceeding. (Answer Questions 1-4, 13-14,
& 20-23)
G A disciplinary proceeding. (Answer Questions 1-4, 15-19, & 20-23)
As can be seen, each category of challenge required answering the first
four and the last four questions on the form. Depending on the nature of the
challenge, a different set of questions in the middle were to be answered. We
agree with Propes that under these instructions, he should not have answered
questions 5-12 about his conviction and questions 15-19 concerning discipline.
Propes sees an inconsistency between the instructions on the form and the
steps he is now being told were necessary to avoid the successive petition bar.
The form directed an inmate not to include disciplinary claims and claims about
errors in the conviction on the same document. Of course, the form did not state
that claims arising out of the same judgment should be staggered. A pro se
9
No. 07-40833
litigant gets a liberal reading of his pleadings, but the basic procedural
obligations still apply. See United States v. Petty, 530 F.3d 361, 365-66 (5th Cir.
2008). Some manner in which to complete the form and comply with the
necessity of combining all claims arising from one conviction was needed. One
manner would be to use two separate forms, but file them at the same time.
Shorn of its incidentals, the claim Propes makes is that the form should
have explicitly stated that a challenge to a prison disciplinary proceeding and a
challenge to the judgment of conviction that put him in the prison in the first
place had to be joined with separate, simultaneously filed petitions. We agree
that would be useful. To rule in Propes’s favor, though, we must find that such
fuller guidance was required. We analyze, then, the purpose of the forms.
We start with what is at least one important step in the development of
these forms. In late 1976, Congress approved Rules Governing Section 2254
Cases in the United States District Courts (hereinafter “Habeas Corpus Rules”).
Attached to the Rules was a form petition for an inmate to use. According to
Rule 2, an inmate’s petition “must substantially follow either the form appended
to these rules or a form prescribed by a local district-court rule.” Habeas Corpus
R. 2(d). An Advisory Committee Note goes further than the language of the Rule
itself. It states that “unless a district court requires otherwise by local rule, the
petition must be in the form annexed to these rules.” Habeas Corpus R. 2
advisory committee’s note at subdiv. (c). The form Propes filed is not the one in
the Habeas Corpus Rules. There has been no issue raised here about whether
the form Propes used was one adopted by the local district court. Absent any
issue being made, we will assume in our analysis that Propes receives the
protection of Rule 2, in that he used a form that he had to use.
Because Propes used the proper form, we would face a difficult issue if the
default that is being held against him was one resulting from a requirement of
the form. Propes no doubt would respond that this is exactly the reason he filed
10
No. 07-40833
his disciplinary claim first and separately from his claims against the judgment.
Instead, we find that the default arose from Propes’s not understanding or at
least not following the legal requirement that joining claims arising out of the
same judgment meant that disciplinary claims had to be joined to more
traditional attacks on the judgment of conviction. Consequently, the language
of Habeas Corpus Rule 2, requiring that Propes follow the requirements of the
form, does not protect him from the successive petition bar. It would have been
helpful for additional instructions to have been stated on the form, but we do not
find that their absence invalidates the form or protects Propes from the bar.
This conclusion is harsh. Indeed, we have sympathy for Propes’s protests
about the guidance the form gave him. Yet we cannot ignore the principle that
pro se litigants must conform to the same rules that are no doubt more easily
understood by lawyers. Controlling and clear precedent on joining disciplinary
and conviction challenges had been issued in 2003. Crone, 324 F.3d at 836. We
would have little sympathy for an attorney who stated he needed the Crone
principle pointed out on the form. Similarly, a pro se inmate must also be aware
of the entire array of procedural requirements, not all of which may be
mentioned on the form.
We also conclude that sympathy cannot breach the solid procedural
barriers set out in the AEDPA. That enactment does not provide general
forgiveness of understandable mistakes. Instead, there are specific and narrow
exceptions to the successive petition rules. These exceptions are set forth in
Section 2244(b)(2), which mandates that a second or successive habeas
application be dismissed unless the applicant shows that the claims are based
on a “new rule of constitutional law, made retroactive to cases on collateral
appeal by the Supreme Court” or a newly discovered factual predicate
establishing that “but for constitutional error, no reasonable factfinder would
11
No. 07-40833
have found the applicant guilty of the underlying offense.” 1 Not having the
clearest expression of the governing principles on the form itself is not one of the
exceptions. We will not create new exceptions.
Propes has not made a prima facie showing that his application meets the
requirements of Section 2244(b)(2) for pursuing a second or successive habeas
application. We AFFIRM the district court’s dismissal of Propes’s habeas
petition as successive. We DENY Propes’s additional pending motions.
1
Specifically, 28 U.S.C. § 2244(b) provides:
(b)(1) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless–
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
(3)(A) Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.
....
(C) The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie
showing that the application satisfies the requirements of this subsection.
12