United States Court of Appeals,
Fifth Circuit.
No. 93-1276
Summary Calendar.
Richard L. LOWE, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Dec. 2, 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:
Richard Lowe appeals the denial of his petition for writ of
habeas corpus for procedural default in the state courts. Because
Lowe failed to raise his ineffectiveness of counsel and
plea-voluntariness claims on direct appeal and in his first five
habeas corpus petitions in state court, we affirm.
I.
In 1986, Lowe pled guilty in state district court to injury to
a child, indecency with a child, and aggravated sexual assault.
The state trial judge did not give Lowe permission to appeal as
required by TEX.CODE CRIM.PROC.ANN. art. 26.13(3) (Vernon 1989).
Foreclosed from direct appeal, Lowe challenged his conviction
through a surfeit of state habeas corpus petitions. After the
fourth of these petitions, the state trial court determined that
Lowe had abused the habeas process, and the Texas Court of Criminal
1
Appeals denied Lowe's application without written order.
Undeterred, Lowe filed a fifth habeas petition in state court.
Relying upon the earlier finding that Lowe had abused the writ, the
trial court did not reach the merits of his application. It did,
however, explicitly determine that Lowe's complaints were all
either repetitious or of a character such that they should have
been raised in earlier petitions. In a written opinion, the trial
court determined that Lowe had abused the habeas process for the
second time. The Court of Criminal Appeals affirmed, holding that
Lowe's complaints had been "waived and abandoned by his abuse of
the writ of habeas corpus."
In his sixth state habeas petition, in 1990, Lowe finally got
around to making the claims he is asserting in the instant federal
habeas petition, alleging ineffective assistance of counsel and the
involuntariness of his guilty plea. After reviewing the petition,
the Court of Criminal Appeals issued an unpublished opinion
expressly citing Lowe for abuse of the writ:
A proper respect for the concept of justice which the
office of the Great Writ is to protect, requires that
applications be filed in earnest and that all contentions of
merit be presented and ruled upon as expeditiously as
possible.... If an applicant has grounds which would justify
the granting of habeas corpus relief, he should present them
for determination with dispatch, rather than doling them out
one-by-one in repeated attempts to obtain relief....
It is obvious [Lowe] is continuing to raise issues which
have been presented and rejected or should have been presented
on appeal and in his prior applications. We find [Lowe's]
contentions have been waived and abandoned by his abuse of the
writ of habeas corpus.
Ex Parte Lowe, Writ No. 18,225-06, Order (May 9, 1990) (citations
omitted). The court also extended the prohibition to future
2
applications challenging the present conviction, absent a showing
of good cause. Id.
The federal magistrate judge, relying upon the foregoing
order, determined that Lowe's procedural default in the state
courts precluded federal review absent a showing of cause and
prejudice, which Lowe had not made. The district court adopted the
recommendation of the magistrate judge in its final order.
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,
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334 U.S. 672, 677, 68 S.Ct. 1270, 1273, 92 L.Ed. 1647 (1948). Lowe
did not pursue a 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, explicitly relied upon by the state
courts, 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.
The Texas abuse-of-the-writ doctrine, as set out by the
courts and as applied to Lowe, bars review of issues that were not
raised on direct appeal and issues that were not raised in prior
state habeas petitions. Supreme Court precedent supports the
conclusion that this type of a state procedural rule can be an
adequate and independent state ground foreclosing federal habeas
corpus review.
In Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194
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(1972), the Court reviewed a federal district court's denial of a
habeas petition on the ground that the Supreme Court of Maine had
held petitioner's claims to be waived by his failure to raise them
in a prior post-conviction proceeding. Quoting from its teachings
in Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078-
79, 10 L.Ed.2d 148 (1963), the Court stated that "[n]othing in the
traditions of habeas corpus requires the federal courts to tolerate
needless piecemeal litigation, or to entertain collateral
proceedings whose only purpose is to vex, harass, or delay." 409
U.S. at 45, 93 S.Ct. at 73. The Court concluded that "[t]here can
be no doubt that States may likewise provide, as Maine has done,
that a prisoner seeking post-conviction relief must assert all
known constitutional claims in a single proceeding." Id. This
court and other circuits also have held state procedural bars to be
adequate and independent state grounds for purposes of finding
procedural default. See, e.g., Wilcher v. Hargett, 978 F.2d 872,
878 (5th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 96, 126
L.Ed.2d 63 (1993); Booker v. Wainwright, 764 F.2d 1371, 1379 (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
because the Mississippi courts had not regularly and strictly
asserted a procedural bar to claims not raised on direct appeal.
The Texas courts have a history of regular application of the abuse
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of the writ doctrine,1 excepting only cases in which 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. This standard
prevents an arbitrary disregard for the bar by a Texas court and
entitles the abuse-of-the-writ doctrine to respect as an
independent and adequate state ground.
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 ineffectiveness of counsel and plea-voluntariness claims, Lowe
"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. at 170, 102
S.Ct. at 1596. We need not reach the question of prejudice, as we
agree with the magistrate judge and the district court that Lowe
has made no showing of cause for his failure to assert the relevant
claims in his earlier state habeas corpus petitions.
AFFIRMED.
1
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.
6