Petition — Estelle v. Paprskar

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

* * *

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

MICHAEL J. PAPRSKAR,

Respondent

* * *

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

~ FOR THE FIFTH CIRCUIT

* * *

MARK WHITE W. BARTON BOLING

Attorney General of Texas Assistant Attorney General

Chief, Enforcement Division

JOHN W. FAINTER, JR.

First Assistant DOUGLAS M. BECKER

Assistant Attorney General

TED L. HARTLEY

Executive Assistant P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

INDEX

Page

EE BEIT . criicctncmsnritnninissineibsncclanbitehcteasmatanmadaiaean 1

EE UIE shstaeccanccnincavitsisontonesencnnpibinicciisevpitliasandaeaiilanabamamnaian 1

og tt By 4, y ys | Renn eC nae ren 2

CONSTITUTIONAL AND STATUTORY

fp ag Bt 2 ~ | Ones enn NE eran ama 2

ee NEE EC BES CAPE einiiiticsiceliitansesientainirivnidghelibanmtinmeel 3

REASONS FOR GRANTING THE WRIT ..... ee ccceeeeeeee 5

FRE \indnswnincsciniuieiasaeisisiastiecinnsenmnininiepdbilaibcnamsinbanidaimlaiinbedaann 5

I. This Case Presents a Significant Opportunity to

Establish that the Federal Habeas Courts are not

Required to Tolerate Abusive Piecemeal Litigation

TD FIG wa cnlistucicctisdicaseptiiieaiesiebiceeebiaaaes 5

II. This Issue is one of Increasing National

III - ssscisosisctnivnsubetcioninianiayyataniilimcdaaanmaedebencmemeindain 10

CEPR Ee Pa PIITONIT.- cishcischchaitnsasnncitinsnscenieniaisondpiepaaeuauentingesmaimaaiiineided 11

TABLE OF AUTHORITIES

Brager v. United States, 539 F.2d 401

Ren Wa tilts’ SPIED” cancctbciecscescissensiensadtssoneacbesianichobicenemitubeisinsealin aiaethaihetcndiabainaia 8

Carter v. Telectron, Inc., 452 F.Supp.’944

Sa, Sa MUPUOE Sccatibssccnbibsabiocilnnipininsiinistapstasveadtepmedia Nab bacabiectitaieiciaaaa 11

Cody v. Missouri Board of Probation and

Parole, 468 F.Supp. 431 (W.D. Mo. 1979) ..........ccccceeeeeeseeees 9,10

FE Fi Fe re Ps Ce CII ciiernicecsttsusinhainceesesenasedinbcimibaabceametan 6,7

Fulford v. Smith, 482 F.2d 1225 (5th Cir. 1970) ............ccsseeseees 8

Galtieri v. Wainwright, 582 F.2d 348

ITU MEPUPD. SIIUIUIIE cichsstarh ‘cashiers tne tint hcegse basa rdbaeenbancaesnsaadaabanensiaaalaail 9

Johnson v. Coppinger, 420 F.2d 395

Rae aN aon Cea en ra nEUNEE Oe SSee wea Te 7

Johnson v. Massey, 516 F.2d 1001

SEEN TEEIN, AUIPIIIIE siinitusssenhninreisnhicinteiosiionnsiiiahihaghonanieesantesouladseimeneenisiaamiaasiale 8

Me

«tie

Juelich v. United States, 403 F.2d 523

I oc ssenenasausscesssivecscneses 7,8

Moore v. Estelle, Be © ee OOO (OE) Cir. 1DTE) .......ccccccerseccccscccess 8

Paprskar v. Estelle, 566 F.2d 1277

(5th Cir. 1978), cert. denied,

mem Sf TE EMITTED cn cccivcssavicseseessencscsecsscecnsees 4

Paprskar v. Estelle, 612 F.2d 1003

a ss wancnbsiesnasoncncncienes passim

Prieser v. Rodriguez, 411 U.S. 475 (1978) wu... cece secessesseees )

Sanders v. United States, 373 U.S. 1 (1963)... eee 6,10

Statutes and Rules

i. csussbdusioseneunsancesoneconcvevesscoss 2

i schnbdcencncevencnenccsccoccosecccencccees 2

a sasnsibsecentuaconnececs 3,5, and 6

Rule 9b), Rules Governing §2254 Proceedings in

the United States District Courts, foll.

Ta -. sscaslesnecnecsncccnnsscccenscoconsece passim

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

* * *

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

MICHAEL J. PAPRSKAR,

Respondent

* * *

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ke oe

The Petitioner State of Texas respectfully prays thata

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit

entered in this case on March 3, 1980.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is Paprskar v. Estelle, 612 F.2d 1003

(5th Cir. 1980), and appears in the Appendix at A. 1. The

unpublished judgment and order of the United States

District Court of the Southern District of Texas,

Houston Division, are reproduced at A. 13-14. The

recommendation of the United States Magistrate that

was adopted by the district court is reproduced at A. 15-

17.

JURISDICTION

The judgment of the Urited States Court of Appeals

-.

in Paprskar v. Estelle was entered on March 8, 1980.

This petition for writ of certiorari was filed within

ninety days after final judgment. Hence, this Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether Rule 9 of the Habeas Corpus Rules or 28

U.S.C. §2244 provide a defense in federal habeas corpus

against this classic case of abusive piecemeal litigation

by a state prisoner?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. §2244:

...b) When after an evidentiary hearing on

the merits of a material factual issue, or after a

hearing on the merits of an issue of law, a

person in custody pursuant to the judgment ofa

State court has been denied by a court of the

United States or a justice or judge of the United

States release from custody or other remedy on

an application for a writ of habeas corpus, a

subsequent application for a writ of habeas

corpus in behalf of such a person need not be

entertained by a court of the United States or a

justice or judge of the United States unless the

application alleges and is predicated on a

factual or other ground not adjudicated on the

hearing of the earlier application for the writ,

and unless the court, justice, or judge is

satisfied that the applicant has not on the

earlier application deliberately withheld the

newly asserted ground or otherwise abused the

writ.

Rule 9(b), Rules Governing Section 2254 Cases in the

United States District Courts, foll. 28 U.S.C. §2254:

(b) Successive petitions. A second or

successive petition may be dismissed if the

-3-

judge finds that it fails to allege new or

different grounds for relief and the prior

determination was on the merits or, 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.

STATEMENT OF THE CASE

Respondent Paprskar is an inmate of the Texas

Department of Corrections serving concurrent

sentences of twenty years for two brutal and senseless

murders. He pleaded guilty to both murders on April 9,

1973. A third conviction for the murder of a four year-

old child--the son of a man who allegedly had sold bad

heroin to Paprskar--was reversed on direct appeal by

the Texas Court of Criminal Appeals in 1972, and his

death sentence was accordingly vacated. Thus, “As a

matter of ultimate fact, Paprskar was sentenced to

twenty years for three murders.” Paprskar v. Estelle,

612 F.2d 1003, 1008 (5th Cir. 1980)(concurring opinion

of Coleman, C.J.); A. 11.

Apparently dissatisfied with his “unusually mild

sentence” upon his plea of guilty (7d.), Paprskar on

December 17, 1975, filed an application for writ of

habeas corpus in the United States District Court for the

Southern District of Texas, Houston Division, claiming

his right to good conduct time credit for his pretrial

incarceration. At the time the matter was set for an

evidentiary hearing on July 22, 1976, he had exhausted

his state remedies as required by 28 U.S.C. §2254, on the

good time claim, but not on the claims* he would later

* Paprskar would later allege that his guilty pleas were

involuntary because drugs were administered to him prior to his

guilty plea, that he was denied the right to a speedy trial, and that

failure of the State to provide certain evidence upon timely motion

for discovery denied him his right to due process of law.

af.

raise in his second federal habeas application attacking

' the constitutionality of his convictions, eventually filed

in the same court in 1978.

It is significant that Paprskar was represented by the

same attorney in both federal proceedings. At the time of

the evidentiary hearing on the good time claim, that

attorney elected not to raise any challenged to the

validity of his client’s convictions because he had not yet

exhausted his state remedies upon those claims. Under

the extant law in the Fifth Circuit, the presentation of

any unexhausted claim would have required the entire

habeas case to have been dismissed.

The district court granted relief upon the pre-trial

incarceration good conduct time credit claim on

September 16, 1976. The Fifth Circuit reversed on

appeal, Paprskar v. Estelle, 566 F.2d 1277 (5th Cir.

1978), and this Court denied a petition for writ of

certiorari on October 2, 1978, Paprskar v. Estelle,

__U.S.___, 99 S.Ct. 136 (1978).

Paprskar’s second federal habeas application was

filed on March 19, 1978. The State of Texas pleaded

abuse of the writ, focusing upon Paprskar’s conscious

decision to litigate in a piecemeal fashion by rushing to

judgment on his good time claim instead of waiting until

he had exhausted his state remedies upon ail his

challenges to the fact or duration of his confinement.

Texas argued that Paprskar’s conduct could not

reasonably be characterized as anything other than

“deliberate withholding” of grounds for relief.

The district court agreed, concluding that Paprskar’s

conduct amounted to a “classic case” of abuse of the writ

(A. 17). But the Fifth Circuit Court of Appeals

disagreed, opining that well-established federal policies

prohibiting piecemeal litigation in habeas corpus do not

apply when one of several claims becomes “ripe for

adjudication” by virtue of having been brought before

the others. (612 F.2d at 1006-07; A. 8).

-5-

This petition for writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

I. This Case Presents a Significant Oppor-

tunity to Establish that the Federal

Habeas Courts are not Required to

Tolerate Abusive Piecemeal Litigation by

State Prisoners.

II. This Issue is one of Increasing National

Importance.

ARGUMENT

I. This Case Presents a Significant Oppor-

tunity to Establish that the Federal

Habeas Courts are not Required to

Tolerate Abusive Piecemeal Litigation by

State Prisoners.

The federal district court found in this case that

Respondent Paprskar’s conduct presented a “classic

case” of abuse of the writ of habeas corpus. (A. 17). On

appeal to the Fifth Circuit, Chief Judge Coleman,

concurring reluctantly in the result, lamented that “in

the prsent state of habeas corpus law, the judgment of the

District Court must be vacated and remanded.” (612

F.2d at 1008; A. 10)\emphasis in original). If that

statement was correct, then this Court should change

the present state of the law, although Petitioner believes

there is ample authority already for upholding the

district court’s findings.

First, Rule 9(b), Rules Governing Section 2254

Proceedings in the United States District Courts, foll. 28

U.S.C. §2254, provides that a second habeas petition

“may be dismissed if the judge finds... that the failure

of the petitioner to assert those grounds in a prior

petition constituted an abuse of the writ.” Second, 28

U.S.C. §2244 provides the same remedy where the

“judge is satisfied” that the petitioner has “on the earlier

-§-

application deliberately withheld the newly asserted

ground or otherwise abused the writ.”

Third, this Court’s prior case law sheds much light on

the deliberate withholding of grounds for habeas relief.

In Sanders v. United States, 373 U.S. 1 (1963), the Court

stated that the allegation of abuse is open to the State in

recognition of the fact that habeas corpus has been

traditionally governed by equitable principles, among

which is that “a suitor’s conduct in relation to the matter

at hand may disentitle him to the relief he seeks...”

Sanders at 17, citing Fay v. Noia, 372 U.S. 391 (1963):

Thus, for example, if a prisoner deliberately

withholds one of two grounds for federal

collateral relief at the time of filing his first

application, in the hope of being granted two

hearings rather than one or for some other such

reason, he may be deemed to have waived his

right to a hearing on a second application

presenting the withheld ground . .. Nothing 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.

(Emphasis added.)

The equitable principles developed in Fay v. Nova,

which deal with the circumstances under which a

prisoner may be foreclosed from federal collateral

relief, govern the trial court’s determination of abuse.

Id. The focus of Sanders and Fay is the element of bad

faith present when a petitioner exploits the collateral

attack process afforded by 28 U.S.C. §2254. Thus, in Fay

v. Nowa at 439, the Court said:

If a habeas applicant, after consultation with

competent counsel or otherwise, under-

standingly and knowingly forewent the

privilege of seeking to indicate his federal

claims in the state courts, whether for strategic,

-7-

tactical or any other reasons that can fairly be

described as the deliberate by-passing of state

procedures, then it is open to the federal court

on habeas to deny him all relief if the state

courts refused to entertain his federal claims on

the merits--though of course only after the

federal court has satisfied itself, by holding a

hearing or by some other means, of the facts

bearing upon the applicant’s default.

(Emphasis added.)

Paprskar has exhibited the precise kind of behavior to

which the abuse doctrine is addressed. He does not

allege that the grounds he withheld from his first

petition were based on newly-discovered evidence, or

that he was unaware of the facts of his case or that he did

not know that they constituted a basis for relief at the

time of his original filing. Cf. Price v. Johnston, 344 U.S.

266, 292 (1948); Johnson v. Coppinger, 420 F.2d 395 (4th

Cir. 1969); Juelich v. United States, 403 F.2d 523 (5th

Cir. 1968).

Insiead, he advances two reasons why his conduct is

not abusive. The Court of Appeals found one persuasive:

that ordinary policy considerations against piecemeal

litigation are inapplicable where the second federal

application is based on claims that were unexhausted at

the time the first application is filed and decided,

regardless of whether the unexhausted claims were

known to the habeas petitioner throughout his legal

peregrinations. As the Court of Appeals insisted, “The

simple fact is that the ‘good time’ case was ripe for

adjudication and the claims challenging the underlying

conviction were not.” 612 F.2d at 1006-07; A. 8.

Petitioner concedes that some of Paprskar’s claims

were ripe for adjudication and some were not; the

argument focuses on why the latter claims were not yet

ripe. The plain reason -is that Paprskar had not only

failed to exhaust state remedies on those claims, but

persisted in pursuing his other claims before taking the

-8-

simple expedient of exhausting all his claims so that

they might be resolved in one federal proceeding.

The Court of Appeals would have conceded that if a

habeas petitioner exhausts two grounds for relief in

state court and then brings several federal petitions, he

is guilty of Rule 9(b) abuse. Yet the court held that if the

same habeas petitioner purposely exhausts only one

ground and files one federal petition, then if

unsuccessful, exhausts the other ground and brings a

second successive federal petition, he cannot be guilty of

Rule 9(b) abuse. If one of these procedures is less abusive

than the other, the distinction escapes Petitioner.

In this case, Paprskar’s counsel made the strategic

and tactical decision to proceed upon the sole claim

relating to good time credit and deliberately withheld

the cognizable claims in order to avoid dismissal. The

gamble was that if unsuccessful in raising his one

exhausted ground, he could later return again to federal

court upon other grounds being simultaneously

litigated in state court.

This conduct is clearly within the language of Sanders

and Fay as abusive. It is advancing of grounds in a one-

at-a-time fashion, “when the evidence is available which

would allow all grounds to be heard and disposed of in

one proceeding,” that shows a calculated exploitation of

the collateral attack process and is “intolerable abuse of

the Great Writ.” Brager v. United States, 539 F.2d 401

(5th Cir. 1978); Fulford v. Smith, 482 F.2d 1225, 1227

(5th Cir. 1970). See also, Moore v. Estelle, 526 F.2d 690

(5th Cir. 1976); Johnson v. Massey, 516 F.2d 1001 (5th

Cir. 1975); Jeulich v. United States, 403 F.2d 523 (5th

Cir. 1968).

The opinion below seems to hold that the federal and

state systems of relief can be addressed as many times as

a petitioner has claims, as long as the claims not

presented to federal court, for whatever reason, have not

yet been ruled upon or presented in the state courts. This

-9-

view ignores the fact that the state and federal courts

are part of asingle process designed to relieve a prisoner

from unconstitutional detention and to bring a

resolution to the entire case. See, Galtieri v. Wainwright,

582 F.2d 348, 359 (5th Cir. 1978)(en banc). The

adjudication of claims is not an end in itself.

Paprskar has argued that because his good time claim

in his first federal habeas application was a challenge to

the duration of his confinement, and the other claims in

his second federal application were a challenge to the

fact of his confinement, he properly pursued the former

before the latter. Upon examination, this distinction

completely undermines Paprskar’s position.

Clearly, he was bound to exhaust both sets of claims.

Preiser v. Rodriguez, 411 U.S. 475 (1973). Paprskar had

no reason whatsoever to rush to judgment on his good

time claim. He burdened the federal district court with

an evidentiary hearing, the Court of Appeals with an

appeal, including briefing and oral argument, on a

difficult claim, and this Court with a petition for writ of

certiorari. Eventually he lost, and now it appears that he

lost upon a claim that would never have been necessary

to resolve if his instant constitutional claim were found

to have merit. That is, a finding that Paprskar’s

conviction was constitutionally invalid, which he now

seeks, would render the good time claim moot. Instead of

waiting to see whether that might turn out to be the case,

Paprskar pushed on to judgment, pursuing all these

time-consuming and expensive proceedings.

It cannot be the law that Petitioner is entitled to abuse

the judicial process in this manner. The opinion of the

Court of Appeals states, “Respondent cites no case, nor

has a search revealed any, that indicates that abuse of

the writ exists in the circumstances involved here.” 612

F.2d at 1007; A 8. Petitioner has now found a case

precisely identical to this one--and the court reached the

opposite result as the court below. In Cody v. Missouri

Board of Probation & Parole, 468 F.Supp. 431 (W.D. Mo.

-10-

1979), the state prisoner brought a successive habeas

petition raising grounds he had previously withheld

because he had not yet exhausted his state remedies

upon those claims. The court held as follows:

As a practical matter, the problem of abuse

may be avoided in all but the most exceptional

cases if the petitioner simply refrains from

filing any federal habeas corpus petition until

he exhausts state remedies on all of the claims

he may wish to present in his federal petition

and, in the first federal petition, presents all

available claims. Where the petitioner presents

one exhausted claim in his first federal petition

but waits to exhaust state remedies and present

other claims to the federal court until after the

first petition has been determined, he has, by

definition, abused the writ of habeas corpus by

attempting to litigate in piecemeal fashion

claims that could have been presented earlier.

See Sanders v. United States, supra, at 18, 83

S.Ct. 1068 (emphasis in original).

Cody v. Missouri Board of Probation & Parole, 468

F.Supp. 431, 4.5 (W.D.Mo. 1979). This holding is

precisely the one advocted by Texas in and rejected by

the court below. Interestingly, Cody also brought a jail

time credit claim that the court held was not barred for

abuse because the claim had not accrued at the time the

first federal habeas petition was filed. Jd. All

Respondent Paprskar’s claims had “accrued” when he

filed his first federal application.

For these reasons, this petition should be granted, and

Respondent Paprskar held in abuse of the writ.

II. This Issue is one of Increasing National

Importance.

Multiple habeas corpus petitions from a single state

prisoner are a luxury that can no longer be afforded by

the federal district courts. That the number of cases

<b

filed by prisoners has increased dramatically in recent

years has been well documented elsewhere.

For example, in Carter v. Telectron, Inc., 452

F.Supp.944, 948-50 (S.D. Tex. 1977), Judge Carl O. Bue,

Jr., collected statistical data proving the huge increases

in prisoner litigation throughout the nation and

particularly in the Southern District of Texas, which

contains most units of the Texas Department of

Corrections, presently housing more than 26,000

inmates. It is fair to say that the federal courts have been

overwhelmed by such petitions. It is time to recognize

the possibly harsh reality that justice will most

effectively be served by liberalizing the abuse of the

writ doctrine, if necessary, to embrace circumstances

such as those presented in this case. It is simply unfair

that some inmates such as Respondent should be given

second, third, or fourth chances in federal habeas corpus

while others, stuck behind the logjam that Respondent

has helped to create, await their first.

This Court should accept this opportunity to vitalize

and strengthen Rule 9(b) of the Habeas Corpus Rules

and the abuse of the writ doctrine generally.

CONCLUSION

For these reasons, Petitioner respectfully prays that

this petition for writ of certiorari be granted, and that

the judgment of the United States Court of Appeais for

the Fifth Circuit be reversed, and that Respondent

Paprskar be held in abuse of the writ of habeas corpus.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant Attorney General

TED L. HARTLEY

Executive Assistant

~~

,

-12-

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

DOUGLAS M. BECKER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

APPENDIX

—

Michael J. PAPRSKAR,

Petitioner-A ppellant,

V.

W. J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-A ppellee.

No. 79-2170

United States Court of Appeals,

Fifth Circuit.

March 8, 1980.

Appeal “rom the United States District Court for the

Southern District of Texas.

Before COLEMAN, Chief Judge, FRANK M.

JOHNSON, Jr., and POLITZ, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

On November 16, 1978, the United States District

Court for the Southern District of Texas dismissed

petitioner Michael J. Paprskar’s second federal habeas

corpus petition as a successive petition “abuse of the

writ”. The district court erred in making that

determination. Accordingly, we vacate the judgment

below and remand to the district court for further

consideration of Paprskar’s petition.

a

This appeal marks Michael Paprskar’s second

appearance in this Court challenging his Texas

conviction for murder or aspects of his confinement in

the Texas penal system.! In his initial Section 2254

'Paprskar was arrested in January, 1970, and charged with three

murders. In June of that year he was tried and convicted in the state

A-2

petition, filed in December, 1975, petitioner alleged that

state incarcerating authorities had unconstitutionally

withheld credit for “good time” on thirty-nine months of

pre-conviction detention.? Although the district court

granted Paprskar’s petition, this Court ultimately

reversed. Paprskar v. Estelle, 566 F.2d 1277, 1281 (5th

Cir.), cert. denied, 439 U.S. 843, 99 S.Ct. 136, 58 L.Ed.2d

142 (1978).

Paprskar and his family retained an attorney to

replace the lawyer who had represented petitioner since

his arrest in 1970. Over a period of time, however, the

retained counsel failed to seek post-conviction relief in

the state courts. In the meantime, Paprskar proceeded

pro se on his first Section 2254 petition? and the federal

district court appointed Attorney Maness, who

represents Paprskar here, as counsel for petitioner in

that action. Finally, in March, 1976, Paprskar’s

retained lawyer filed a state post-conviction action

challenging petitioner’s conviction. The state courts did

courts for one of the murders and was sentenced to die in the electric

chair. His appeal to the Texas Court of Criminal Appeals was

successful and the conviction was reversed on the ground that

evidence used to convict Paprskar was the fruit of an unreasonable

search and seizure. Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.

1972).

Following the state court’s reversal of Paprskar’s conviction, the

Texas authorities charged him with the remaining two murders

and dropped charges concerning the murder for which he was

intitally convicted. On April 6, 1973, Paprskar pleaded guilty to the

murders and was sentenced to two concurrent twenty-year

sentences running from January 20, 1970, the date of the murders.

Paprskar did not directly attack the convictions in the Texas courts.

See Paprskar v. Estelle, 566 F.2d 1277, 1278-79 (5th Cir.), cert.

denied, 439 U.S. 843, 99 S.Ct. 186, 58 L.Ed.2d 142 (1978).

2See note 1, supra.

3Paprskar’s pro se application to the state courts was denied

without hearing in 1974, thereby exhausting state remedies on his

“good time” claim.

A-3

not dispose of the matter until November, 1976. Even

this belated action by the retained counsel, however,

was insufficient in that, directly contrary to Paprskar’s

wishes, that lawyer raised no claims of the ineffective

assistance of petitioner’s original attorney. Thereafter,

Attorney Maness filed a state post-conviction action

raising the ineffective assistance allegations.‘

As these attempts at relief proceeded toward

exhaustion in the Texas state court system, the federal

district court granted Paprskar’s “good time” petition.

As noted above, however, this Court reversed and the

Supreme Court ultimately denied certiorari.

After frustration of his attempt for good time relief,

Paprskar on April 19, 1978, filed pro se® his second

habeas corpus petition in the federal courts, the petition

under consideration here. Unlike the earlier habeas

corpus application, the second petition omitted any

reference to conditions of Paprskar’s confinement and

instead challenged petitioner’s conviction.®

‘The claim was exhausted in the Texas courts in October, 1977.

5Attorney Maness had earlier agreed to file the second federal

petition. Because of delays no doubt at least partially the result of

the time spent in preparation of a petition for certiorari to the

United States Supreme Court in the “good time” case, Paprskar

filed the second Section 2254 petition pro se.

6The second habeas corpus petition raised claims that:

(1) petitioner received ineffective assistance of counsel in

derogation of his Sixth Amendment rights;

(2) Paprskar involuntarily entered a plea of guilty because

his mental capacity was impaired due to drugs administered

to him by his jailers;

(3) he was denied his Sixth Amendment right to speedy trial;

and

(4) he was denied due process under the Fourteenth

Amendment by the trial court’s denial of his motion for

discovery of a tape recording containing exculpatory

material.

A-4

Respondent filed a motion to dismiss the second

application, asserting that it was a “successive petition”

within the purview of Rule 9(b) of the Rules Governing

Section 2254 Cases in the United States District Courts

(28 U.S.C. following §2254) and constituted an “abuse of

the writ” because Paprskar “should have submitted in

his initial federal habeas corpus application [the “good

time” case] all of the issues” raised in the second

petition.’ The district court directed Paprskar to

explain the reason the contentions raised in the second

petition had not been asserted in the first application.®

The case was then referred to the United States

Magistrate who recommended that the district court

dismiss the petition as “a classic case of abuse of the

writ.’”’% The district court followed that

recommendation. !°

‘The motion to dismiss the petition failed to mention that the

courts of Texas did not complete action on the contentions raised in

the second federal habeas petition until after the district court’s

final judgment in the “good time” case. Nor did the motion to

dismiss refer to the fact that a large portion of the delay from which

respondent alleged prejudice arose resulted from Paprskar’s

efforts to exhaust state remedies.

8Paprskar’s explanation (prepared without benefit of counsel) in

essence asserted ineffective assistance by all three of his attorneys.

He failed to state that the claims could not have been raised earlier

because his state remedies remained unexhausted.

°The Magistrate’s “memorandum and recommendation”

similarly omitted any reference to the problem of exhaustion of

state remedies.

Following the district court’s dismissal of the petition, Mr.

Maness, by now aware of the proceeding described above, timely

filed notice of appeal. Later, Attorney Maness filed an application

for certificate of probable cause and for leave to appeal in forma

pauperis in which he attempted to explain that the exhaustion

requirement had precluded Paprskar from raising the

constitutional challenges to his conviction in the “good time” habeas

corpus proceeding. Nevertheless, again on the recommendation of

the Magistrate, the district court denied a certificate of probable

cause and leave to proceed in forma pauperis. This Court, however,

subsequently granted Paprskar’s application for a certificate of

probable cause and leave to appeal in forma pauperis.

A-5

IT.

The district court dismissed Paprskar’s second

petition under the authority of the prohibition of Rule

9(b) against abuse of the writ. For that decision,

respondent invites the imprimatur of this Court. We

decline the invitation.

Rule 9(b) provides that:

A second or successive petition may be

dismissed if the judge finds that it fails to allege

new or different grounds for relief and the

prior determination was on the merits or, 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.

To determine whether given conduct constitutes abuse

of the writ, however, reference to pre-Rule 9 case law is

necessary. Rule 9(b) did not in any way change the

standards that govern habeas corpus petitioners in the

federal courts. Rather, the Rule restates principles that

had previously been judicially developed.

The Supreme Court in Sanders v. United States, 373

U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963)

announced that “full consideration of the merits [of a

habeas corpus petitioner’s allegations] can be avoided

only if there has been an abuse of the writ...” As enacted

by Congress, Rule 9(b) codifies the standard of Sanders.

Advisory Committee Note, Rule 9, Rules Governing

Section 2254 Cases in the United States District Courts

(28 U.S.C. following §2254); H.R.Rep.No.1471, 94th

Cong., 2d Sess. 5-6, reprinted in [1976] U.S.Code Cong.

& Admin.News, pp. 2478, 2482, Galtieri v. Wainwright,

582 F.2d 348, 356 & n.18 (5th Cir. 1978)(en bane); 17 C.

Wright, A. Miller & E. Cooper, Federal Practice and

Procedure, §4267 at 690-91 (1978).!! When we examine

Although the decision below was based on Rule 9(b) and the

parties here have argued only whether that statute required

A-6

the conduct of petitioner’? in light of the equities, see

Sanders, supra, 373 U.S. at 17, 883 S.Ct. at 1078, we

clearly cannot conclude that this petition constitutes

“needless piecemeal litigation” or that its “purpose is to

vex, harass, or delay.” Jd. at 18, 83 S.Ct. at 1078. There

was here no abuse of the writ of habeas corpus.

The Sanders Court spoke of a circumstance in which

abuse of the writ is present. “[I]f a prisoner deliberately

dismissal of Paprskar’s second Section 2254 petition, it is

interesting to note 28 U.S.C. §2244(b). Section 2244(b) provides in

relevant part that:

a subsequent application for a writ of habeas corpus... need

not be entertained by a court of the United States or a justice or

judge of the United States unless the application alleges and is

predicated on a factual or other ground not adjudicated on the

hearing of the earlier application for the writ, and unless the

court, justice, or judge is satisfied that the applicant has not on

the earlier application deliberately withheld the newly

asserted ground or otherwise abused the writ.

28 U.S.C. §2244(b) (emphasis added). Like Rule 9(b) the provision

has also been interpretted as a codification of the Sanders rule. 17

Wright, Miller & Cooper, supra, §4267 at 689-90; Statute Note, 45

Tex.L.Rev. 592, 593 (1967); see Historical and Revision Notes, 28

U.S.C. §2244. Nevertheless, it preceded by ten years the enactment

of Rule 9(b).

'2In the present case, respondent met the burden placed upon it

by Sanders that it plead abuse of the writ. See 373 U.S. at 10-11, 83

S.Ct. at 1074-1075. Thereafter, under Price v. Johnston, 334 U.S.

226, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948), Paprskar was

given the opportunity (and the burden) of “answering that

allegation and of proving that he has not abused the writ.” See

Advisory Committee Note, Rule 9b). Paprskar responded

inadequately to the opportunity. See note 8, supra. However, when

Mr. Maness learned of the difficulties Paprskar faced, he apprised

the Court of the actual circumstances involved. See note 10, supra.

Because the proper response to respondent’s motion to dismiss was

ultimately raised and because equities govern our consideration of

the case, we examine the circumstances in the context of the

response of Mr. Maness.

A-7

withholds one of two grounds for federal collateral relief

at the time of filing his first application . . . he may be

deemed to have waived his right to a hearing on asecond

application presenting the withheld ground.” 373 U.S.

at 18,83 S.Ct. at 1078 (emphasis added). However, from

Sanders’ incorporation of the standards of Townsend v.

Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)

and Fay v. Nowa, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d

837, see 373 U.S. at 18, 83 S.Ct. at 1078 (1963), it is clear

that such conduct will be an abuse of the writ only if due

to “inexcusable neglect,” Townsend, supra, 372 U.S. at

317, 83 S.Ct. at 759, or because of “ ‘an intentional

relinquishment or abandonment of a known right or

privilege,” Fay, supra, 372 U.S. at 439, 83 S.Ct. at 849,

quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct.

1019, 1023, 82 L.Ed. 1461 (1938). See 29 U.S.C. §2244(b);

Turnbow v. Beto, 464 F.2d 527, 528 (5th Cir. 1972);

Galtieri, supra, 582 F.2d at 368 (Goldberg, J.,

dissenting).

The Sanders Court recognized that “[{n]othing in the

traditions of habeas corpus requires the federal courts

to tolerate needless piecemeal litigation, [or] to enter-

tain collateral proceedings whose only purpose is to vex,

harass, or delay.” 373 U.S. at 18, 83 S.Ct. at 1078

(emphasis added). The Sanders ruling was based on the

principle “that ‘habeas corpus has traditionally been

regarded as governed by equitable principles.’ United

States ex rel. Smith v. Baldi, 344 U.S. 561, 573, 73 S.Ct.

391, 397, 97 L.Ed. 549 (dissenting opinion). Among them

is the principle that a suitor’s conduct in relation to the

matter at hand may disentitle him to the relief he seeks.”

Sanders, supra, 373 U.S. at 17, 83 S.Ct. at 1078.

In the present case there was neither inexcusable

neglect nor deliberate withholding of a ground for

relief. See Turnbow v. Beto, supra. At the time the

district court considered Paprskar’s “good time” case,

the allegations raised in his second federal petition, see

note 6, supra, had not yet been finally acted on by the

courts of Texas and therefore remained unexhausted.

A-8

The “good time” case, however, was ready to proceed

toward resolution. As stated in our en bance decision in

Galtieri, supra, 582 F.2d at 351, “(t]he rule in this circuit

is that a federal district court generally must dismiss,

without prejudice, a state prisoner’s petition for writ of

habeas corpus that contains a mixture of exhausted and

unexhausted claims.” Given that rule, we certainly can

fault neither the district court for proceeding with the

“good time” litigation nor Mr. Maness for not derailing

resolution of claims concerning the conditions of

petitioner’s confinement until exhaustion in the state

courts of challenges wholly unrelated to the facts and

law involved in the “good time” case. The simple fact is

that the “good time” case was ripe for adjudication and

the claims challenging the underlying conviction were

not. “The ‘abuse of the Writ’ doctrine is of rare and

extraordinary application.” Simpson v. Wainwright,

488 F.2d 494, 495 (5th Cir. 1973). Clearly, it is

inapplicable where, as here, there was “some justifiable

reason” for failure to raise the contentions in the first

petition. Price v. Johnston, 334 U.S. 266, 291, 68 S.Ct.

1049, 1062, 92 L.Ed. 1356 (1948). Respondent cites no

case, nor has a search revealed any, that indicates that

abuse of the writ exists in the circumstances involved

here.

Respondent argues that the forceful reiteration in

Galtieri of the goal of “one federal proceeding

embracing all claims,” 582 F.2d at 357, requires us to

find an abuse of the writ here. The argument, however,

is inapposite.

First, as noted above, Rule 9(b) did not change the

judicial interpretation of the abuse of the writ standard

and no cases evidence that abuse of the writ occurred

here. Even Galtierz’s forceful statement of the goal of

one habeas trip to the federal courts, of itself, would not

require a finding of abuse here. Second, even if we were

to view the Galtierz language as justifying a dismissal of

Paprskar’s second petition, we must recognize that at

the time petitioner filed his second Section 2254

petition, Galtieri had not yet been decided by this Court

A-9

en banc. Indeed, the magistrate’s recommendation of

dismissal, accepted by the district court, that stated that

Paprskar’s actions constituted a “classic abuse of the

writ” preceded by a few days the announcement of

Galtieri. Last, although Galtieri recognizes the role of

Rule 9(b) in achieving “the goal,” the Galtieri court

explicitly recognized that a petitioner could avoid Rule

9(b) dismissal of a second petition if the second petition

asserts claims that were unexhausted at the time the

first petition was brought. 582 F.2d at 358-59.

The circumstances involved here are not those of

Jones v. Wainwright, 608 F.2d 180 (5th Cir. 1979), in

which this Court had an opportunity to determine

whether the possibility of a second habeas corpus

petition alleging claims unexhausted at the time the

first petition was brought would require that the first

petition be dismissed without prejudice.!% There, a

dismissal would not “bar the federal courthouse door” to

any of the claims of the petitioner. See Galtieri, supra,

582 F.2d at 355. Conversely, in the present case, if the

district court decision is allowed to stand, Paprskar will

13In Jones, the Court noted that “to the best of counsel’s

knowledge, [the unexhausted claims] will not be raised in the

future[,]” 608 F.2d at 183, implying that an intention to raise the

claims later might alter the Court’s analysis. However, the Third

Circuit has held that:

It is no bar to federal adjudication of the merits of the present

claim that a separate claim for relief on a different ground is

pending in a state court.

We recognize, as did the district court, the desirability,

where circumstances permit, of including all grounds for

habeas corpus in a single petition. But we think this does not

outweigh the legitimate interest of a prisoner in obtaining

prompt federal consideration of an adequate and properly

asserted ground for relief that has been urged unsuccessfully

before the state courts.

United States ex. rel. Boyance v. Myers, 372 F.2d 111,112 (3d Cir.

1967) (citation omitted).

A-10

be forever foreclosed from a federal forum in which to

assert constitutional challenges to his conviction.

Equity does not compel--indeed it cannot tolerate--such

a result.

Aithough we vacate the order of the district court, we

cannot at this juncture mandate that the court reach the

merits of Paprskar’s petition. In its motion to dismiss

the petitioner, respondent alleged prejudice resulting

from petitioner’s delay in bringing the second petition.

See note 7, supra. Rule 9(a) offers a laches defense to

delayed petitions. In Galtieri, the Court specifically

contemplated Rule 9(a) as the appropriate tool to help

prevent unnecessary successive petitions asserting

claims previously unexhausted. 582 F.2d at 358-59;

see id. at 374 & n.12 (Goldberg, J., dissenting). The

district court on remand should consider respondent’s

Rule 9(a) defense. We note, however, that “‘[dJelay alone

is no bar to federal habeas relief .. ..’” United States ex

rel. Barksdale v. Blackburn, 610 F.2d 253, 260 (5th Cir.

1980) [quoting Hamilton v. Watkins, 436 F.2d 1328, 13826

(5th Cir. 1970)]. In order to prevail on a laches claim

respondent must make a particularized showing of

prejudice. See Jackson v. Estelle, 570 F.2d 546, 547 (5th

Cir. 1978).

VACATED and REMANDED.

COLEMAN, Chief Judge, concurring.

I agree that in the present state of habeas corpus law

the judgment of the District Court must be vacated and

remanded. Nevertheless, I must make a few comments

on this case.

On January 20, 1970, ten years ago, Paprskar and a

companion killed three people because Paprskar

thought he had been sold “bad heroin”. One of those

killed was a four year old child. The father of the child

had just been killed when the malefactors unexpectedly

discovered the presence of the child, in an automobile

parked at the scene. They discussed the matter and

A-11

agreed that the child “had to be killed”, which was done

forthwith. A more deliberate, cold-blooded murder of

an inoffensive child who hardly could have

comprehended the danger he was in, or why he was in it,

would be hard to imagine.

For the murder of the child, Paprskar was convicted

and assessed the death penalty. This, however, was

reversed because certain items seized as the result of a

warrantless search had not been suppressed, Paprskar

v. State, 484 S.W.2d 731 (Tex.Cr.App., 1972). Paprskar

was never again tried for the murder of the child.

Instead, represented by retained counsel, he was

allowed to plead guilty to the indictments which

charged the murder of the other two individuals and

received concurrent sentences of twenty years. As a

matter of ultimate fact, Paprskar was sentenced to

twenty years for three murders.

He has been in prison for ten years. After

unsuccessfuly filing several other petitions for habeas

corpus he again seeks to invoke the Constitution, on

grounds never before suggested, to void his pleas of

guilty and to avoid an unusually mild sentence.

Of course, the Constitution is supreme and must be

obeyed. I do not quarrel with that. I do find it to be

painfully incongruous that he who defies all civilized

notions of due process in the summary theft of a human

life is allowed, years after the event and years after his

conviction has become final, to raise all kinds of

constitutional claims which, if they existed, could have

been raised at trial, or at least, soon thereafter.

The fault, of course, is not with the Great Writ. It lies

in the manner in which it is allowed belatedly to be

invoked. While Congress has commendably made some

effort toli it jurisdiction for the entertainment of these

eleventh hour attacks on state court convictions it is

readily apparent to one regularly dealing with the

subject that those efforts have not met with much

success.

A-12

Very few belated applications for habeas corpus

claim that the petitioner is innocent. The fundamental

purpose of the Writ has been distorted. The confidence

of the general public in the ability of state courts to

bring criminals to justice has been eroded. The

deterrent effect of law prohibiting criminal conduct has

been seriously damaged. The decisions say that the Writ

may not be used as asecond appeal, but from experience

the outlaws know better. Instead of being a bulwark of

freedom for the citizen it has been allowed to become a

last, and too often a sure, refuge for those who have

respected neither the law nor the Constitution.

I would not limit the Writ, if I could, but I most

assuredly would limit its application in situations such

as we encounter in this case.

As Ido here, I must follow the law as it exists. I do not

understand, however, that I am not allowed to mention

serious defects in the law.

In this case it is a fact that Paprskar did plead guilty

in two cases. On remand, I would like to direct the

attention of the District Court (if that is necessary) to the

following language in Tollett v. Henderson, 411 U.S. 258,

267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973):

“{A] guilty plea represents a break in the

chain of events which had preceded it in the

criminal process. When a criminal defendant

has solemnly admitted in open court that he is

in fact guilty of the offense with which he is

charged, he may not thereafter raise

independent claims relating to the deprivation

of constitutional rights that occurred prior to

the entry of the guilty plea. He may only attack

the voluntary and intelligent character of the

guilty plea by showing that the advice he

received from counsel was not within the

standards set forth in [the trilogy ].”

A-13

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MICHAEL J. PAPRSKAR,

No. 231151,

Petitioner

W. J. ESTELLE, JR.,

Director, Texas Department

8

8

8

VS. § Civil Action No. H-78-729

8

8

S

of Corrections, §

§

8

Respondent.

FINAL JUDGMENT

From 2 consideration of the pleadings submitted in

this case, it is the opinion of this Court that this action

should be and is hereby DISMISSED.

The Clerk will enter this Final Judgment and provide

all parties with a true copy.

Done at Houston, Texas, this 16th day of November,

1978.

/s/ WOODROW SEAL

UNITED STATES DISTRICT

JUDGE

A-14

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MICHAEL J. PAPRSKAR,

No. 231151,

Petitioner

VS. Civil Action No. H-78-729

W. J. ESTELLE, JR.,

Director, Texas Department

of Corrections,

OQ? OQ? 2 2 LI L2 L2 LP2 LF LF LF LF

Respondent.

ORDER

For the reasons set forth in the United States

Magistrate’s Memorandum and Recommendation,

signed on October 18, 1978, it is ORDERED that said

Recommendation be and the same is hereby adopted as

the Court’s Memorandum and Order.

It is therefore ORDERED, ADJUDGED and

DECREED that Respondent’s Motion to Dismiss is

GRANTED, and Petitioner’s cause is DISMISSED.

The Clerk will enter this Order and provide all parties

with a true copy.

Done at Houston, Texas, this 16th day of November,

1978.

/s/ WOODROW SEAL

UNITED STATES DISTRICT

JUDGE

A-15

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MICHAEL J. PAPRSKAR,

No. 231151,

Petitioner

W.J. ESTELLE, JR.

Director, Texas Department

§

8

§

VS. § Civil Action No. H-78-729

§

S

S

of Corrections, §

§

S

Judge Woodrow Seals

MEMORANDUM AND RECOMMENDATION:

Petitioner filed this petition pursuant to 28 U.S.C.

2254. On April 9, 1978, Petitioner pleaded guilty to two

charges of murder with malice and was sentenced to two

concurrent terms of twenty years.

Respondent.

Petitioner alleges the following:

1. Ineffective assistance of counsel in violation of the

Sixth Amendment.

2. An involuntary plea of guilty resulting from the

administration of drugs at the Tarrant and Harris

County Jail rendering Petitioner mentally incompetent;

thus, violating his right to due process under the

Fourteenth Amendment.

3. Violation of his Sixth Amendment right to a

speedy trial.

4. Violation of his Fourteenth Amendment right to

due process because the trial court’s denial of

Petitioner’s motion for discovery of tapes allegedly

containing exculpatory material.

Respondent filed a motion seeking dismissal of this

A-16

cause for abuse of writ under rule 9(b) of the rules

governing 28 U.S.C. § 2254. For the following reasons

Respondent’s motion to dismiss should be granted.

Petitioner has filed numberous habeas corpus

petitions in both state and federal court. In particular,

Petitioner previously filed a federal writ alleging denial

of “good time” credits. That cause was decided against

Petitioner by the Fifth Circuit on February 6, 1978. In

that case Petitioner failed to raise any of the issues

presented here. Rule 9b) of the rules governing 28

U.S.C. § 2254 provides, that a “second or successive

petition may be dismissed if... 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). The Fifth Circuit has held an abuse of

writ to occur when a Petitioner is aware of all the issues

and evidence, but deliberately fails to present all his

claims at the same time and attempts to present such

claims in a one-at-a-time, piece meal manner. Fulford v.

Smith, 482 F.2d 1225, 1227 (5th Cir. 1976).

Once the abuse is alleged, the burden shifts to the

Prisoner to show he has not abused the writ and the

Court may not dismiss the petition without first givings

the Petitioner the chance to meet his burden by giving

him notice and ample opportunity to amend or explain.

Johnson v. Coppinger, 450 F.2d 395 (4th Cir. 1969).

In amemorandum and order dated June 30, 1978, the

District Court instructed Petitioner to show good cause

why his petition should not be dismissed for abuse of

writ pursuant to Rule 9(b). Petitioner’s response alleged

only ineffective assistance of counsel for his failure to

raise the claims now being presented to this Court. No

other explanation or excuse was given. An examination

of Petitioner’s first federal writ (Cause No. 75-H-2146)

reveals that, in fact, Petitioner filed a pro se petition and

the District Court awarded him the relief sought. This

eliminates the possibility that counsel was responsible

for the failure of Petitioner to raise all his claims at one

A-17

time. By the very nature of the claims now raised,

Petitioner should have been or actually was aware of all

the claims now being presented. Indeed, his response to

this Court’s Order shows no attempt to deny or

adequately explain his failure to meet his burden. This

is a classic case of abuse of the writ.

For the foregoing reasons the Magistrate

RECOMMENDS that Respondent’s Motion to Dismiss

be granted, and Petitioner’s cause be dismissed.

Done at Houston, Texas, this 30th day of October,

1978.

/s/

NORMAN W. BLACK

UNITED STATES

MAGISTRATE