IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 91-1323 Summary Calendar
JIHAAD A.M.E. SAAHIR,
Petitioner-Appellant,
v.
JAMES A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas
(March 25, 1992)
Before JONES, DUHÉ, and WIENER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The district court dismissed Jihaad Saahir's successive
federal habeas corpus petition for abuse of the writ. His appeal
poses a question left undecided by Woods v. Whitley, 933 F.2d 321,
324 n.6 (5th Cir. 1991): whether pro se habeas petitioners are
held to a different standard of "cause" for failing to raise a
particular claim in prior petitions than are petitioners repre-
sented by counsel. Because McCleskey v. Zant, __ U.S. __, 111
S.Ct. 1454 (1991), draws no such distinction, and because Saahir
has shown neither cause under this standard nor a fundamental
miscarriage of justice should he remain incarcerated, we affirm the
district court's order dismissing his petition with prejudice. BACKGROUND
Saahir, formerly known as James Loggins, was convicted of
aggravated robbery by a Texas jury in 1979 and sentenced to 75
years imprisonment. The Texas Court of Criminal Appeals affirmed
his conviction in 1982. He filed applications for writs of habeas
corpus in the state courts in 1982 and again in 1986, both of which
were denied. Saahir filed his first habeas petition in federal
court in 1982, which was dismissed for failure to exhaust state
court remedies. The district court dismissed his second federal
habeas petition in 1983, prompting Saahir to appeal unsuccessfully
to this court.
The state of Texas moved to dismiss Saahir's third
federal habeas petition under Rule 9(b) because the twelve issues
Saahir now raises were not, but could have been, raised in his
earlier petition.1 After an evidentiary hearing, a magistrate
judge found that Saahir's third petition raised completely new
grounds for relief and that he had not alleged a lack of knowledge
of the facts underlying his claims or the unavailability of means
to know the legal doctrines when he filed his prior writ. The
1 Rule 9(b) of the rules governing habeas corpus peti- tions provides:
Successive petitions. A second or successive petition may be dismissed . . . if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
28 U.S.C. § 2254 Rule 9(b).
2 magistrate judge noted that Saahir's only explanation for failing
to raise these issues earlier was that he was untrained in the law
and had only uncovered the current issues after researching his
case for three years. The magistrate judge also found that Saahir
had presented no evidence of factual innocence. The district
court, adopting the magistrate judge's findings of fact and legal
conclusions, dismissed the third petition with prejudice as an
abuse of the writ. Saahir filed a timely notice of appeal, and the
district court granted a certificate of probable cause.
DISCUSSION
Saahir contends the district court abused its discretion
in dismissing his petition. He argues that his failure to discover
the claims he now raises should be excused because he was not
represented by counsel when he filed the prior petitions. He also
insists he made a colorable claim of factual innocence.
In McCleskey, the Court held that the standard used to
decide whether to excuse a habeas petitioner's state procedural
defaults also governs the determination of excusable neglect in the
context of abuse of the writ under Rule 9(b). 111 S.Ct. at 1468.
This means that a serial habeas petition must be dismissed as an
abuse of the writ unless the petitioner has demonstrated "cause"
for not raising the point in a prior federal habeas petition and
"prejudice" if the court fails to consider the new point. Woods,
933 F.2d at 323. The state has the initial burden of pleading writ
abuse, as it did here; the petitioner must then prove cause and
prejudice. Russell v. Collins, 944 F.2d 202, 205 (5th Cir.), cert.
3 denied, __ U.S. __, 112 S.Ct. 30 (1991). A court need not consider
whether there is actual prejudice if the petitioner fails to show
cause. McCleskey, 111 S.Ct. at 1474; Sawyer v. Whitley, 945 F.2d
812, 816 (5th Cir.), modified on other grounds, __ F.2d __, 1991 WL
231113 (5th Cir.), cert. granted, __ U.S. __, 112 S.Ct. 434 (1991).
The cause standard requires the petitioner to show that
some objective factor external to the defense prevented him from
raising the claim in the previous petition. McCleskey, 111 S. Ct.
at 1470. Such factors include interference by government offi-
cials, as well as the reasonable unavailability of the factual or
legal basis for a claim. Id. In examining cause for a peti-
tioner's delay in raising a habeas claim, McCleskey observed:
The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition. If what petitioner knows or could discover on reasonable investigation supports a claim for relief in the federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.
Id. at 1472.
McCleskey, then, demands Saahir show that at the time he
filed his previous habeas petitions, some factor external to his
defense prevented him from discovering the claims he now raises or
from uncovering them through reasonable investigation. Saahir,
however, has neither alleged that he was unaware of facts relevant
to his claims, nor that any objective external factors prevented
him from researching his case more thoroughly before filing earlier
petitions. He testified at the evidentiary hearing that he did not
4 realize that he should file only one writ, so he filed the first
petition and then continued researching possible claims.
Saahir now contends that because he proceeded pro se on
both his prior and current petitions, he should be excused for his
ignorance of the law. We disagree. The alleged inadequacy of
Saahir's own legal research is irrelevant under McCleskey because
no objective external factor prevented him from raising the new
claims in prior petitions. Nor can Saahir's pro se status qualify
as such a factor. As McCleskey reiterated, there is no constitu-
tional right to counsel in post-conviction proceedings. Pennsylva-
nia v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 1993 (1987);
McCleskey, 111 S.Ct. at 1471; Coleman v. Thompson, __ U.S. __, 111
S.Ct. 2546, 2566 (1991).
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 91-1323 Summary Calendar
JIHAAD A.M.E. SAAHIR,
Petitioner-Appellant,
v.
JAMES A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of Texas
(March 25, 1992)
Before JONES, DUHÉ, and WIENER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The district court dismissed Jihaad Saahir's successive
federal habeas corpus petition for abuse of the writ. His appeal
poses a question left undecided by Woods v. Whitley, 933 F.2d 321,
324 n.6 (5th Cir. 1991): whether pro se habeas petitioners are
held to a different standard of "cause" for failing to raise a
particular claim in prior petitions than are petitioners repre-
sented by counsel. Because McCleskey v. Zant, __ U.S. __, 111
S.Ct. 1454 (1991), draws no such distinction, and because Saahir
has shown neither cause under this standard nor a fundamental
miscarriage of justice should he remain incarcerated, we affirm the
district court's order dismissing his petition with prejudice. BACKGROUND
Saahir, formerly known as James Loggins, was convicted of
aggravated robbery by a Texas jury in 1979 and sentenced to 75
years imprisonment. The Texas Court of Criminal Appeals affirmed
his conviction in 1982. He filed applications for writs of habeas
corpus in the state courts in 1982 and again in 1986, both of which
were denied. Saahir filed his first habeas petition in federal
court in 1982, which was dismissed for failure to exhaust state
court remedies. The district court dismissed his second federal
habeas petition in 1983, prompting Saahir to appeal unsuccessfully
to this court.
The state of Texas moved to dismiss Saahir's third
federal habeas petition under Rule 9(b) because the twelve issues
Saahir now raises were not, but could have been, raised in his
earlier petition.1 After an evidentiary hearing, a magistrate
judge found that Saahir's third petition raised completely new
grounds for relief and that he had not alleged a lack of knowledge
of the facts underlying his claims or the unavailability of means
to know the legal doctrines when he filed his prior writ. The
1 Rule 9(b) of the rules governing habeas corpus peti- tions provides:
Successive petitions. A second or successive petition may be dismissed . . . if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
28 U.S.C. § 2254 Rule 9(b).
2 magistrate judge noted that Saahir's only explanation for failing
to raise these issues earlier was that he was untrained in the law
and had only uncovered the current issues after researching his
case for three years. The magistrate judge also found that Saahir
had presented no evidence of factual innocence. The district
court, adopting the magistrate judge's findings of fact and legal
conclusions, dismissed the third petition with prejudice as an
abuse of the writ. Saahir filed a timely notice of appeal, and the
district court granted a certificate of probable cause.
DISCUSSION
Saahir contends the district court abused its discretion
in dismissing his petition. He argues that his failure to discover
the claims he now raises should be excused because he was not
represented by counsel when he filed the prior petitions. He also
insists he made a colorable claim of factual innocence.
In McCleskey, the Court held that the standard used to
decide whether to excuse a habeas petitioner's state procedural
defaults also governs the determination of excusable neglect in the
context of abuse of the writ under Rule 9(b). 111 S.Ct. at 1468.
This means that a serial habeas petition must be dismissed as an
abuse of the writ unless the petitioner has demonstrated "cause"
for not raising the point in a prior federal habeas petition and
"prejudice" if the court fails to consider the new point. Woods,
933 F.2d at 323. The state has the initial burden of pleading writ
abuse, as it did here; the petitioner must then prove cause and
prejudice. Russell v. Collins, 944 F.2d 202, 205 (5th Cir.), cert.
3 denied, __ U.S. __, 112 S.Ct. 30 (1991). A court need not consider
whether there is actual prejudice if the petitioner fails to show
cause. McCleskey, 111 S.Ct. at 1474; Sawyer v. Whitley, 945 F.2d
812, 816 (5th Cir.), modified on other grounds, __ F.2d __, 1991 WL
231113 (5th Cir.), cert. granted, __ U.S. __, 112 S.Ct. 434 (1991).
The cause standard requires the petitioner to show that
some objective factor external to the defense prevented him from
raising the claim in the previous petition. McCleskey, 111 S. Ct.
at 1470. Such factors include interference by government offi-
cials, as well as the reasonable unavailability of the factual or
legal basis for a claim. Id. In examining cause for a peti-
tioner's delay in raising a habeas claim, McCleskey observed:
The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition. If what petitioner knows or could discover on reasonable investigation supports a claim for relief in the federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.
Id. at 1472.
McCleskey, then, demands Saahir show that at the time he
filed his previous habeas petitions, some factor external to his
defense prevented him from discovering the claims he now raises or
from uncovering them through reasonable investigation. Saahir,
however, has neither alleged that he was unaware of facts relevant
to his claims, nor that any objective external factors prevented
him from researching his case more thoroughly before filing earlier
petitions. He testified at the evidentiary hearing that he did not
4 realize that he should file only one writ, so he filed the first
petition and then continued researching possible claims.
Saahir now contends that because he proceeded pro se on
both his prior and current petitions, he should be excused for his
ignorance of the law. We disagree. The alleged inadequacy of
Saahir's own legal research is irrelevant under McCleskey because
no objective external factor prevented him from raising the new
claims in prior petitions. Nor can Saahir's pro se status qualify
as such a factor. As McCleskey reiterated, there is no constitu-
tional right to counsel in post-conviction proceedings. Pennsylva-
nia v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 1993 (1987);
McCleskey, 111 S.Ct. at 1471; Coleman v. Thompson, __ U.S. __, 111
S.Ct. 2546, 2566 (1991).
It is hardly surprising, then, that McCleskey draws no
distinction between pro se petitioners and those represented by
counsel. See Woods, 933 F.2d at 324 n.6. Instead, McCleskey sets
a single standard for whether a habeas petitioner is excused from
neglecting to raise his new claims in prior petitions:
Abuse of the writ doctrine examines petitioner's conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition. . . .
111 S.Ct. at 1472 (emphasis in original). Because a habeas
petitioner is not constitutionally entitled to any legal
representation in waging a collateral attack, the McCleskey "knew
or reasonably should have known" standard for cause applies
irrespective of whether he was represented by counsel when he filed
any previous petitions.
5 In Woods, this court suggested that the application of
McCleskey's "should have known" standard may be inconsistent with
prior Fifth Circuit cases requiring actual knowledge by pro se
petitioners of the facts and legal theories of their new claims.
Woods, 933 F.2d at 324 n.6. See, e.g., Shouest v. Whitley, 927
F.2d 205 (5th Cir. 1991) (superseding Schouest v. Smith, 914 F.2d
713, 716) (5th Cir. 1990)); Matthews v. Butler, 833 F.2d 1165,
1170-71 (5th Cir. 1987); Passman v. Blackburn, 797 F.2d 1335, 1344
(5th Cir. 1986), cert denied, 480 U.S. 948, 107 S.Ct. 1609 (1987);
see also Jones v. Estelle, 722 F.2d 159, 163-64 n.3 (5th Cir. 1983)
(en banc) (reserving the question), cert. denied, Jones v.
McKaskle, 466 U.S. 976, 104 S. Ct. 2356 (1984).2 Now that the
2 The actual knowledge standard adopted in Passman and questioned in Woods flowed from a pair of Supreme Court decisions that have been modified by McCleskey. The first, Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822 (1963), held that a procedural default in state court does not bar federal habeas review unless the petitioner has deliberately bypassed state procedures by intentionally forgoing an opportunity for state review. Id. at 438-39, 83 S. Ct. at 846. In Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068 (1963), the Court extended the "deliberate bypass" standard of Fay to the abuse of the writ doctrine. Id. at 18, 83 S. Ct. at 1078. Accordingly, Passman concluded:
In light of Sanders, there is no room in habeas corpus adjudications for an abuse of the writ doctrine to a pro se petitioner who did not subjectively know about a particular legal claim when an earlier petition was filed. A pro se petitioner must, at the least, knowingly withhold a claim in order for the abuse of the writ doctrine to apply.
797 F.2d at 1343. Most recently, however, Coleman v. Thompson, U.S. , 111 S. Ct. 2546 (1991), overruled Fay v. Noia by rejecting the deliberate bypass standard in favor of cause and prejudice. Coleman, U.S. , 111 S. Ct. at 2565. Similarly, in adopting this same standard for abuse of the writ, McCleskey repudiated the underpinnings of this court's actual knowledge standard by holding that "[a]buse of the writ is not
6 issue is squarely before the court, we recognize that McCleskey has
overruled these earlier decisions to the extent they distinguish,
for abuse of the writ purposes, between pro se petitioners and
those represented by counsel.
Applying McCleskey to the facts of this case, we hold
that Saahir "should have known" about the legal theories he now
advances when he filed his earlier pro se petition. The district
court found that he did not allege lack of knowledge of the facts,
did not allege inability to research the law, and had actual
knowledge of the law on ineffective assistance of counsel. The
record clearly supports a finding that Saahir "should have known"
of the legal theories if he had diligently researched them before
filing his earlier writ.
While Saahir has failed to show cause for his neglect,
this court may still entertain his serial petition to prevent a
"fundamental miscarriage of justice." McCleskey, 111 S.Ct. at
1470-71. Overarching Saahir's second contention on appeal is that
the ends of justice will be served only if this court reaches the
merits of his newly formulated claims. Jones v. Whitley, 938 F.2d
536, 542 (5th Cir. 1991), cert. denied, __ U.S. __, 112 S.Ct. 8
confined to instances of deliberate abandonment." McCleskey, U.S. , 111 S. Ct. at 1467. The Court noted that the cause and prejudice standard is "consistent" with Sanders, id. at _____, 111 S. Ct. at 1471, but only because it strictly limited Sanders to its facts: "Sanders mentioned deliberate abandonment as but one example of conduct that disentitled a petitioner to relief." Id. at , 111 S. Ct. at 1467 (emphasis added). Because the doctrinal predicate of Passman and its progeny is no longer valid, neither is the actual knowledge standard.
7 (1991). A "fundamental miscarriage" implies that a constitutional
violation probably caused the conviction of an innocent person.
See McCleskey, 111 S.Ct. at 1475. Only two claims bear on Saahir's
claim of innocence -- ground number 7 alleging ineffective
assistance of counsel regarding his alibi witness and his co-
defendant's exculpatory statement. These grounds were developed
factually at the evidentiary hearing.
At trial, Saahir's wife Sylvia testified that she did
not go to work and was with her husband at the time of the robbery.
Her employer testified that time card records showed that she did
work that night. Saahir claims he told his attorney to recall her
to explain that her sister worked in her place and signed in for
her. Saahir, who was represented by counsel at the evidentiary
hearing, knew the whereabouts of his wife but chose not to call her
as a witness. At that hearing, Saahir's trial attorney testified
that he did not recall Sylvia because he thought it would be more
damaging to his case to do so, as she had made statements to her
employer that incriminated her husband. The attorney was concerned
about any further cross-examination of her.
Saahir also alleges that his co-defendant, Michael
McGowan, made statements to the police that exonerated him. Saahir
admitted that he has never seen such a statement. He claimed his
wife told him about the statements. McGowan did state that the
person who committed the robbery with him was a black man. While
he did not name Saahir as his accomplice, he did not exonerate him
either. McGowan's whereabouts are unknown.
8 Thus, the trial court's finding that Saahir failed to
present any evidence on his claim of factual innocence is not
clearly erroneous. He neither called his wife to fortify his alibi
defense nor produced proof of the existence of an exculpatory
statement by his co-defendant, McGowan. Saahir has not shown that
failure to consider his claim will result in a fundamental
miscarriage of justice and that he remains incarcerated though
innocent.
CONCLUSION
The district court's factual findings and legal
conclusions were correct, and the court did not abuse its
discretion in dismissing Saahir's petition for abuse of the writ.
Accordingly, the dismissal is AFFIRMED.