Herbst v. Scott

UNITED STATES COURT OF APPEALS
for the Fifth Circuit

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No. 93-2618
Summary Calendar
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COLIN J. HERBST,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

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Appeal from the United States District Court
for the Southern District of Texas
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(January 4, 1995)
Before DUHÉ, WIENER, and STEWART, Circuit Judges.

DUHÉ, Circuit Judge:

Treating the Suggestion for Rehearing En Banc as Petition for

Panel Rehearing, the Petition for Panel Rehearing is DENIED. No

member of the panel nor Judge in regular active service of the

Court having requested that the Court be polled on rehearing en

banc (FRAP and Local Rule 35), the Suggestion for Rehearing En Banc

is also DENIED.

On our own motion we held the mandate in this matter. Having

reconsidered the case we recall our prior opinion1 and substitute

the following.

Appellant Colin J. Herbst, proceeding pro se and in forma

pauperis, appeals the trial court's abuse of the writ dismissal of

1
Herbst v. Scott, No. 93-2618, 1994 WL 561826 (5th Cir. 1994).
his petition for writ of habeas corpus. Because this is Herbst's

second federal habeas petition, the district court applied the

cause and actual prejudice requirements of McCleskey v. Zant, 111

S. Ct. 1454, 1470 (1991). We affirm.

FACTS

Herbst is currently serving a fifty-year sentence in Texas

state prison for aggravated sexual assault of a child (1990

conviction). The court enhanced his sentence because of a prior

conviction of rape of a child (1980 conviction), which Herbst

satisfied by serving seven years in prison. Herbst attacked the

1980 conviction in his first state habeas petition and the 1990

conviction in his second state petition. His first federal habeas

petition raised the exact same issues found in his first state

petition. The federal court denied his first federal habeas

petition on the merits before the state resolved his second habeas

petition. After Herbst's second state habeas petition was denied,

he raised the same issues in his second federal petition. The

district court dismissed his second petition for abuse of the writ

because Herbst failed to show cause and actual prejudice for

failing to raise his new grounds in his first federal habeas

petition. Herbst appeals.

DISCUSSION

As a threshold matter, Herbst questions the jurisdiction of

the federal court that heard his first federal habeas petition. He

contends that the court lacked jurisdiction of his attack on his

1980 conviction because (1) he had fully satisfied the jail term;

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(2) his second state habeas petition was still outstanding and,

thus, he had not exhausted all his state remedies. 28 U.S.C. §

2254 Rule 9(b) provides a partial preclusive rule against second or

successive habeas petitions.2 We may examine the jurisdiction of

the federal court that heard Herbst's first habeas petition in

determining whether to invoke Rule 9(b). Patton v. Fenton, 491 F.

Supp. 156, 159 (M.D. Pa. 1979); see also Caro v. Vasquez, 789 F.

Supp. 315, 319 (N.D. Cal. 1992) (dismissing petition without

prejudice so that any renewed petition would not be considered a

successive petition within the meaning of Rule 9(b)); cf. Clark v.

Bear Stearns & Co., 966 F.2d 1318, 1321 (9th Cir. 1992) (noting

that res judicata does not bar a subsequent claim if the forum in

which the first action was brought lacked subject matter

jurisdiction).

The district court that heard Herbst's first federal habeas

petition had jurisdiction to consider his attack on his 1980

conviction. A habeas petitioner may attack a prior conviction used

to enhance his punishment. Allen v. Collins, 924 F.2d 88, 89 (5th

Cir. 1991). The jurisdictional requirement of "in custody" is

satisfied by reading the petition as a challenge to the current

conviction. Maleng v. Cook, 490 U.S. 488, 493-94 (1989). Thus,

the district court had jurisdiction to hear Herbst's attack on his

2
Rule 9(b) provides in pertinent part: "A second or successive
petition may be dismissed . . . [when] new and different grounds
are alleged [if] the judge finds that the failure of the petitioner
to assert those grounds in a prior petition constituted an abuse of
the writ."

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1980 conviction because Maleng considers it an attack on his 1990

conviction.

Furthermore, Herbst's outstanding second state habeas petition

did not deny the district court jurisdiction over Herbst's first

federal habeas petition. The requirement that a petitioner first

exhaust his state remedies is based on comity, not jurisdiction.

Granberry v. Greer, 481 U.S. 129, 131 (1987). In addition, the

requirement of exhaustion of state remedies applies only to the

questions presented in the federal habeas petition. See 28 U.S.C.

§ 2254(c) (1988).3 If only exhausted claims are before the

district court, the court may rule on the petition. Williams v.

Maggio, 727 F.2d 1387, 1389 (5th Cir. 1984). The claims contained

in Herbst's first federal habeas petition were exactly the same as

those contained in his first state habeas petition. Those claims

were exhausted. His unexhausted claims contained in his second

state habeas petition were irrelevant to his first petition because

they were not before the district court. We conclude that the

district court had jurisdiction over Herbst's first federal habeas

petition and could decide it on the merits.

Since the district court that heard Herbst's first federal

habeas petition decided it on the merits, 28 U.S.C. § 2254 Rule

9(b) applies to his second petition. If the second petition

presents new grounds that were not alleged in the first petition,

3
"An applicant shall not be deemed to have exhausted the remedies
available in the courts of the state, within the meaning of [§
2254(b)], if he has the right under the law of the state to raise,
by any available procedure, the question presented." 28 U.S.C. §
2254(c) (1988).

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the Government may plead abuse of the writ. McCleskey v. Zant, 111

S. Ct. 1454, 1470 (1991). The Government satisfies its burden if,

with clarity and particularity, it describes petitioner's writ

history, identifies his new claims, and alleges that petitioner has

abused the writ. Id. The burden then shifts to petitioner to

provide an excuse for failing to bring his claims in the earlier

petition. Id. Petitioner must demonstrate cause and actual

prejudice to satisfy his burden.4 Id. The district court

determined that the Government had satisfied its burden and that

petitioner had failed to show both cause and actual prejudice. We

review a court's abuse of the writ determination for abuse of

discretion. McGary v. Scott, 27 F.3d 181, 183 (5th Cir. 1994).

We agree with the district court's determination that no cause

existed. Cause is an objective factor external to petitioner that

impeded his efforts to consolidate his claims in one petition.

McCleskey, 111 S. Ct. at 1470. At the time, had Herbst brought all

his claims together in one federal habeas petition, the district

court would have dismissed his petition. See Rose v. Lundy, 455

U.S. 509, 510 (1982) (requiring federal courts to dismiss "mixed

petitions" that include both exhausted and unexhausted claims).

4
The question arises whether an exception to McCleskey exists for
a pro se petitioner who uses his previous petition to attack a
prior conviction used to enhance his current sentence. We cannot
say that such an exception exists. Under McCleskey, the cause and
prejudice requirements apply to all second and successive
petitions, except for those "implicating a fundamental miscarriage
of justice." 111 S. Ct. at 1470. That exception is not applicable
in this case.

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 Failure to exhaust does not constitute cause if the petitioner

is aware of his new claims at the time he asserts his previous

petition. McGary, 27 F.3d at 184; Jones v. Estelle, 722 F.2d 159,

168 (5th Cir. 1983) (en banc), cert. denied, 466 U.S. 976 (1984).

We apply a constructive knowledge standard to Herbst.5 Herbst

filed his first federal petition on May 3, 1991, which the district

court denied on April 20, 1992. Herbst filed his second state

petition, which included the same claims he asserted in his second

federal petition, on October 8, 1991. He should have known about

his claims against his 1990 conviction at the time he asserted his

first federal petition. Herbst cannot justify his failure to

consolidate by relying on his failure to exhaust his state remedies

on his new claims. See McGary, 27 F.3d at 184-85 ("We do not

accept [petitioner's] proposition that, in this case, two wrongs

make a right."). We conclude that Herbst lacked cause for not

consolidating his federal claims into one petition.6

5
In Estelle, the en banc court reserved the question of whether
an actual or constructive knowledge standard applies to a pro se
petitioner. 722 F.2d at 163-64 n.3. Our pre-McCleskey cases held
that an actual knowledge standard applied to petitioners who had
filed their previous petition pro se. Schouest v. Whitley, 927
F.2d 205, 208 (5th Cir. 1991); Matthews v. Butler, 833 F.2d 1165,
1171 (5th Cir. 1987). In Saahir v. Collins, 956 F.2d 115, 119 (5th
Cir. 1992), which we decided post-McCleskey, we overruled these
cases in that respect and applied a constructive knowledge standard
in view of McCleskey.
6
The Estelle court also limited its ruling to petitioners who had
been represented by counsel on their previous petition. Id. at
165. Because McCleskey applied Rule 9(b) to all second and
successive petitions, we need not consider this restriction. See
Saahir, 956 F.2d at 119 (recognizing that McCleskey does not
distinguish between pro se petitioners and those represented by
counsel).

6
 Because we have decided that no cause exists, we need not

inquire into actual prejudice. See McCleskey, 111 S. Ct. at 1474.

CONCLUSION

For the foregoing reasons, the district court's dismissal for

abuse of the writ is AFFIRMED.

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