United States Court of Appeals,
Fifth Circuit.
No. 94-10302
Summary Calendar.
Johnny Logan HICKS, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Oct. 13, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Johnny Hicks appeals the denial of his petition for writ of
habeas corpus for procedural default in the state courts. Because
Hicks failed to raise his Batson claim on direct appeal in state
court, we affirm.
I.
In 1985, Hicks was convicted by a state jury of aggravated
robbery. In 1986, the Texas Court of Criminal Appeals affirmed the
conviction, 722 S.W.2d 257. Hicks filed petitions for writs of
habeas corpus in June 1990 and February 1992. In October 1990, the
Court of Criminal Appeals cited Hicks for abuse of the writ.
Thereafter Hicks filed a federal habeas petition asserting
that the Court of Criminal Appeals had failed to consider whether
a venireman had been improperly excused in violation of Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); it
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was dismissed for failure to exhaust state remedies in March 1993.
Hicks did not appeal but filed a third habeas petition in state
court raising the Batson issue; the court refused to take any
action on the application because it did not satisfy the
requirements for consideration given the October 1993 order citing
him for abuse of the writ.
In his second federal habeas petition, Hicks asserted, inter
alia, the alleged Batson violation. In its response, the state
asserted that the petition should be dismissed for failure to make
the claim in state court, at the time of the state trial or while
the state appeal was in progress in the state court of appeals and
the Court of Criminal Appeals; that Hicks was aware that a
"Batson-type claim" might be available during the voir dire
examination; and that his failure to raise it in the state trial
or appellate courts amounted to procedural default.
The magistrate judge determined that Hicks had satisfied the
exhaustion requirement, but the magistrate judge's report and
recommendation did not address squarely the procedural default
issue and examined, instead, the questions of whether Hicks failed
to raise the Batson claim in state appellate court and whether the
state court had an obligation to do so sua sponte. The federal
district court did not address the abuse-of-the-writ disposition
resulting from Hick's return to state court to exhaust the Batson
claim.
Concluding that Hicks had not raised the Batson issue on
direct appeal, the magistrate judge recommended denial of Hick's
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petition. Over Hick's objections, the district court adopted the
findings of the magistrate judge and denied the petition.
II.
A federal court may not grant a habeas petition unless the
petitioner "has exhausted the remedies available in the courts of
the state, or [ ] there is either an absence of available state
corrective process or the existence of circumstances rendering such
process ineffective to protect the rights of the prisoner." 28
U.S.C. § 2254(b) (1988). A petitioner is generally not considered
to have exhausted state remedies within the meaning of subsection
(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). In interpreting the exhaustion requirement, the
Supreme Court has held that a petitioner generally need not utilize
state habeas corpus or other state collateral proceedings to
satisfy the requirement that he exhaust the available state
remedies. Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97
L.Ed. 469 (1953). Where the petitioner urges an issue he failed to
raise on direct appeal, however, he must use available state
collateral procedures to satisfy the exhaustion requirement. Wade
v. Mayo, 334 U.S. 672, 677, 68 S.Ct. 1270, 1273, 92 L.Ed. 1647
(1948).
Hicks failed to raise the Batson claim on direct appeal in
the Court of Criminal Appeals. Batson was decided on April 30,
1986, while Hicks's case was pending in the state court of appeals,
which did not actually issue its opinion until December 31, 1986.
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Nor did petitioner raise a claim flowing from the exclusion of
black veniremen under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824,
13 L.Ed.2d 759 (1965), on direct appeal. Accordingly, he had a
duty to exhaust state habeas remedies before turning to the federal
courts.
Federal review of a habeas claim is barred by the procedural
default doctrine if the last state court to review the claim states
clearly and expressly that its judgment rests on a procedural bar.
Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 1042, 103
L.Ed.2d 308 (1989). The issue before this court is whether a state
"abuse of the writ" doctrine, which precludes state collateral
consideration of issues not raised on direct appeal, constitutes
such a procedural bar.
The Texas abuse-of-the-writ doctrine precludes Texas courts
from granting habeas writs where the petitioner has failed, without
cause, to address the same issue on direct appeal or in a previous
petition. Set forth in Ex parte Dora, 548 S.W.2d 392, 393-94
(Tex.Crim.App.1977), the doctrine allows the court, after finding
that petitioner has abused the writ, to refuse to accept or file
the habeas petition absent a showing of cause that the contention
could not have been raised in the prior proceeding.
Hicks was cited for abuse of the writ by the Court of Criminal
Appeals on October 31, 1990. The court stated: "It is obvious
applicant is continuing to raise issues which have been presented
and rejected or should have been presented on appeal and in his
prior applications." Ex parte Hicks, No. 5,988-08, at 2.
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Accordingly, the court held that "applicant's contentions have been
waived and abandoned by his abuse of the writ of habeas corpus."
Id. (citing Ex parte Bilton, 602 S.W.2d 534 (Tex.Crim.App.1980);
Dora ). The court extended the finding of abuse of the writ to
"any future applications seeking to challenge the instant
conviction or any prior convictions used to enhance the punishment
assessed," absent a showing of good cause. Id.
On March 23, 1993, Hicks finally filed a state habeas petition
asserting his Batson claim. Pursuant to the Court of Criminal
Appeals's prior finding of abuse of the writ, the state court took
no action on the petition and thereby rested on an adequate and
independent state law ground, the Texas abuse of the writ doctrine.
The Texas abuse of the writ doctrine, as stated by the courts
and as applied to Hicks, bars review of both issues that were not
raised on direct appeal and issues that were not raised in prior
state habeas petitions. This court and other circuits have held
the first type of procedural bar to be an adequate and independent
state ground for purposes of finding procedural default. See,
e.g., Wilcher v. Hargett, 978 F.2d 872 (5th Cir.1992), cert.
denied, --- U.S. ----, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993); Booker
v. Wainwright, 764 F.2d 1371 (11th Cir.1985).
In Wilcher, we addressed the issue of how regularly a state
rule must be followed for it to constitute a procedural bar. We
reversed the district court's dismissal of a habeas petition on the
ground that the Mississippi courts had not regularly and strictly
asserted a procedural bar to claims not raised on direct appeal.
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The Texas courts have a history of regular application of the abuse
of the writ doctrine,1 excepting only cases where the issue in
question "could not reasonably have been raised in previous
applications, and presents important questions of law which should
be resolved." Choice, 828 S.W.2d at 5 n. 1.
A federal court can review a procedurally defaulted habeas
claim if the petitioner can demonstrate both cause for his
noncompliance and actual prejudice resulting therefrom. United
States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71
L.Ed.2d 816 (1982). To excuse his procedural default relating to
the Batson claim, Hicks "must shoulder the burden of showing, not
merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions." Id.
Hicks has made no showing of prejudice and has not
demonstrated a substantive basis for a Batson claim. Five black
veniremen were excluded at trial. Hicks did not object to the
exclusion of four of them, challenging only that of the fifth,
Williams.
A claim under Batson cannot be asserted on appeal where the
defendant did not object at trial, as Hicks did not with regard to
the first four. See, e.g., Wilkerson v. Collins, 950 F.2d 1054,
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See, e.g., Ex parte Choice, 828 S.W.2d 5
(Tex.Crim.App.1992); Ex parte Emmons, 660 S.W.2d 106
(Tex.Crim.App.1983); Ex parte Stuart, 653 S.W.2d 13
(Tex.Crim.App.1983); Ex parte Bilton, 602 S.W.2d 534
(Tex.Crim.App.1980); Dora.
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1063 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3035, 125
L.Ed.2d 722 (1992). The fifth, Williams, was successfully
challenged for cause by the prosecution because of absenteeism.
Williams was nowhere to be found when the jury was called
into the courtroom to be sworn in. Nor was he present at 9:00 a.m.
the next day. At 9:25 a.m., the judge proceeded without Williams.
At about 11:00 a.m., Williams appeared in court pursuant to an
attachment that had been issued the day before, when he was first
discovered missing. The state objected to Williams on the basis
that he had missed the court's instructions and the state's initial
voir dire, and the objection was sustained by the court. Batson is
inapplicable to an exclusion for cause in a case such as this,
where a venireman's erratic behavior and absences have
inconvenienced the court and where the reasons for the exclusion
appear on the face of the record.
AFFIRMED.
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