noting that there is no right to counsel in federal habeas proceedings
How later courts described this case
- noting that there is no right to counsel in federal habeas proceedings
- “the proper course, except in rare circumstances, is 12 to remand to the agency for additional investigation or explanation”
- res judicata “has no application in the absence of a final judgment”
- "The abuse of the writ doctrine is codified ... in two enactments of equal status: Rule 9(b) and 28 U.S.C. § 2244(b)."
Written by the judges who cited it.
The opinion
CONTIE, Senior Circuit Judge,
concurring.
I concur with the conclusion that defendant’s second habeas petition should be dismissed as an abuse of the writ, but for a different reason. I do not believe that this case presents the issue of whether ineffective assistance of counsel in regard to a prior habeas petition constitutes excusable neglect, which would allow a defendant to file a second habeas petition that was not an abuse of the writ. It is not necessary to resolve this issue in the present case because what defendant Ritchie is alleging is mere attorney error, not ineffective assistance of counsel. In Murray v. Carrier, 477 U.S. 478, 486-87 , 106 S.Ct. 2639, 2644-45 , 91 L.Ed.2d 397 (1986), the Supreme Court held that in that case the omission of a claim from a petition for appeal was attorney error and did not constitute cause for a procedural default. Similarly, in the present case, I believe the alleged omission only rises to the level of attorney error and does not constitute ineffective assistance of counsel. Given the fact that defendant personally signed a verification of his first habeas petition, it can be presumed that he knew of the issues being raised and ratified any omissions. Moreover, as the Supreme Court stated in Jones v. Barnes, 463 U.S. 745 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983), there is no duty for counsel to raise every “ ‘colorable’ claim suggested by a client.” Id. at 754 , 103 S.Ct. at 3314 .
Under the Supreme Court's decision in Murray v. Carrier, 477 U.S. at 486-88 , 106 S.Ct. at 2644-45 , attorney error short of ineffective assistance of counsel does not constitute cause and will not excuse a procedural default. McCleskey v. Zant, 499 U.S. at 494, 111 S.Ct. 1454, 1470 (1991) states that the same standard is to be used in regard to the abuse of the writ doctrine as is used in determining procedural default. Because attorney error does not constitute cause for excusing a procedural default at the state level, it also does not constitute excusable neglect under the abuse of the writ doctrine at the federal level. Because defendant Rit-chic alleges mere attorney error, he has not demonstrated excusable neglect that would *595 allow him to file a second habeas petition. For this reason, the judgment of the district court should be affirmed.