# Petition — Estelle v. Paprskar

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 885

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2462%3A1. Public record. Not legal advice.