concurring.
I concur in Judge Bowman’s excellent opinion. However, under the circumstances of this case, where counsel acted on his own in filing the first habeas petition in federal district court without consultation or advice from petitioner, the discretionary-rule of 9(b)1 governing successive petitions is simply not germane to our consideration. To invoke such a rule would in my judgment necessarily create procedural callousness and ignore equitable principles relating to habeas corpus.
A petition for writ of habeas corpus is not a game the law affords incarcerated people. It is the sole means to allow one whose very liberty has been deprived to thoroughly challenge both the procedural and substantive process. Because we as a society believe in the fundamental right of liberty of the individual, our system of government recognizes the values in making certain that a fair process has taken place thus preventing innocent people from forfeiting the right most sacred to them. The initial trial and appeal has proven in hundreds of cases not to have been infallible.
It seems to me those courts which feel self-plagued from prisoner writs should be reminded that the fundamental concept that liberty should not be forfeited without due process has deep roots in the Magna Charta. A denial of a fair hearing to a habeas petitioner by procedural bar should be the unusual exception and not the rule. To “abuse” the writ is to attempt to “vex, harass or delay.” This is not the case here.
The Supreme Court has recognized that courts should be careful to make certain that a prisoner does not deliberately hold back claims from one petition to assert them in a second, in order to get two hearings. Sanders, 373 U.S. at 18, 83 S.Ct. at 1078. See also Ellis v. Mabry, 601 F.2d 363, 364-65 (8th Cir.1979). In all due respect I find such a suggestion far from reality. If a prisoner seeks his liberty, human desire dictates that he or she will assert every ground known at the time that will provide a basis for release. To suggest that prisoners might hold back to play procedural games with the court is unrealistic. I have never been aware of such prisoner stratagem in a habeas case. It sounds good in principle as a means of thwarting the undesirability of piecemeal appeals, but it simply does not happen. There is no empirical evidence that it occurs. The presumptive desirability to achieve one’s freedom is far too great to “sandbag” the court for procedural fun.
Prisoners may intentionally waive claims that were known and abandoned in initial proceedings. But such a rule is far different than saying prisoners might deliberately hold back claims to sandbag the court and get two hearings. In any event, petitioner Williams can hardly be accused of abusing the writ when counsel failed to consult or advise him at the time the first petition was filed.
. Rule 9(b) of the Rules Governing Section 2254 cases in the United States District Courts.