IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-20826
_______________
JEFF EMERY,
Petitioner-Appellant,
VERSUS
GARY JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
April 15, 1998
ON PETITION FOR REHEARING
(Opinion September 10, 1997, 5th Cir. 1997, ____F.3d_____)
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:
On petition for rehearing, Emery urges us to reconsider our
determination that the claims that he did not present in his first
state habeas application are procedurally barred by Texas’s common-
law abuse-of-the-writ doctrine. In support of his contention that
the common-law doctrine does not procedurally bar federal review of
these claims, Emery offers a single published case, Ex Parte
Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996), cert. denied, 117 S.
Ct. 2517 (1997), in which the Texas Court of Criminal Appeals
(TCCA) addressed the merits of a successive habeas application, and
a number of unpublished decisions of the TCCA in which he contends
that the court addressed a habeas petitioner’s claims on the merits
even though the claims were presented for the first time in a
successive habeas application.* We conclude that these cases do
not undermine our determination that Texas’s common-law abuse-of-
the-writ doctrine constitutes a state ground adequate to bar
federal review of the claims that Emery did not present in his
first state habeas petition.
We note as an initial matter that Emery contends in his
petition for rehearing that, in evaluating the adequacy of a state
procedural rule, “the proper point in time for determining whether
a procedural rule was firmly established and regularly followed is
‘the time of [the] purported procedural default.’” (quoting Fields
v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (internal quotation
marks omitted), petition for cert. filed, 66 U.S.L.W. 3531 (U.S.
Jan. 27, 1998) (No. 97-1262)). We also note that Emery bears the
burden of proving that Texas did not apply the doctrine with
sufficient strictness and regularity during the relevant time
*
Emery cites the following cases: Ex Parte Banks, Writ
No. 13,568-03 (Tex. Crim. App. Jan. 10, 1996); Ex Parte Gibbs,
Writ No. 23,624-02 (Tex. Crim. App. July 15, 1995); Ex Parte
Burdine, Writ No. 16,725-06 (Tex. Crim. App. Apr. 6, 1995); Ex
Parte Goodwin, Writ No. 25,290-02 (Tex. Crim. App. Jan. 27,
1995); Ex Parte Mata, Writ No. 8,937-02 (Tex. Crim. App. Jan. 27,
1995); Ex Parte Marquez, Writ No. 17,898-03 (Tex. Crim. App. Jan.
13, 1995). In all of these cases, the Texas Court of Criminal
Appeals summarily denied relief. We assume without deciding that
such summary disposition constituted a resolution of the cases
solely on the merits.
2
period. See Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997),
cert. denied, 118 S. Ct. 1091 (1998); Martin v. Maxey, 98 F.3d 844,
847 (5th Cir. 1996). Assuming arguendo that Emery's view of the
law is correct, we conclude, for the reasons set forth below, that
Texas strictly and regularly applied its common-law abuse-of-the-
writ doctrine at the time of Emery’s procedural default, that is,
at the time that he failed to include all of the claims for which
he seeks federal review in his first state habeas application.
In Fearance v. Scott, 56 F.3d 633 (5th Cir. 1995), a panel of
this court acknowledged that, in the past, Texas courts had not
applied the common-law abuse-of-the-writ doctrine with sufficient
strictness and regularity to render the doctrine an adequate ground
for barring later federal habeas review of a constitutional claim.
See id. at 642 (citing Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.
1995)). However, the panel held that, as of the TCCA’s decision in
Ex Parte Barber, 879 S.W.2d 889 (Tex. Crim. App. 1994), the common-
law abuse-of-the-writ doctrine was applied with sufficient
strictness and regularity to render the doctrine an adequate state
ground. Fearance, 56 F.3d at 642. Fearance thus stands for the
proposition that, at least with respect to the time period between
February 23, 1994, the date that the TCCA decided Barber, until
June 18, 1995, the date that this court decided Fearance, Texas
applied its common-law abuse-of-the-writ doctrine with sufficient
strictness and regularity to render it an adequate state ground.
We are bound to accept this conclusion. See Narvaiz v. Johnson,
134 F.3d 688, 694 (5th Cir. 1998) (“It is more than
3
well-established that, in this circuit, one panel may not overrule
the decision, right or wrong, of a prior panel in the absence of en
banc reconsideration or superseding decision of the Supreme Court.”
(internal quotation marks and brackets omitted)).
Emery filed his first state habeas application on July 5,
1995, and the TCCA denied relief on August 1, 1995. In his
petition for rehearing, Emery cites no cases decided between the
date that this court decided Fearance and the date that he filed
his first habeas application in which the TCCA addresses the merits
of an abusive application. He cites only one such case--Ex Parte
Gibbs, Writ No. 23,624-02 (Tex. Crim. App. July 15, 1995)--decided
between the date we decided Fearance and the date that the TCCA
denied relief on his first habeas application. Even if we assume
that, up until the date that the TCCA denied relief on his first
habeas petition, Emery could have amended his application so as to
present the claims for which he now seeks federal review, thereby
avoiding a procedural default, Emery has not demonstrated that
Texas failed to apply its common-law abuse-of-the-writ doctrine
with sufficient strictness and regularity to render it an adequate
state ground as of the time of Emery’s procedural default. We have
held that “an occasional act of grace by a state court in excusing
or disregarding a state procedural rule does not render the rule
inadequate.” Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995).**
**
Additionally, because the Gibbs opinion merely consists
of a one-page order summarily denying relief, it is unclear
whether that case even involved claims similar to the ones that
Emery seeks to have us review. “Because [Emery] has not
demonstrated that the TCCA [did] not strictly or regularly apply
4
As such, Emery’s presentation of a single case decided between the
date of Fearance and the date the TCCA denied relief on his first
habeas application cannot establish the inadequacy of Texas’s
common-law abuse-of-the-writ doctrine during the time period that
Emery contends is germane to the determination of whether federal
review of his claims is barred by an adequate and independent state
ground. Accordingly, we DENY Emery’s petition for rehearing.
the [abuse-of-the-writ doctrine] to claims identical or similar
to his . . . claim[s], we are convinced that the rule is an
adequate state-law ground,” at least with respect to the time
period to which Emery urges us to look in evaluating the
strictness and regularity of the rule’s application. Amos, 61
F.3d at 340-41.
5