1Cullum titled his pleading "CONSTITUTIONAL WRIT OF HABEAS

CORPUS PURSUANT TO ART. 1, SEC. 9, CL. 2." While the lower court

did not expressly state that it would treat the pleading as a §

2255 motion, it implied as much by noting that Cullum's pleading

was not his first § 2255 motion. 

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United States Court of Appeals,

Fifth Circuit.

No. 93-8832

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Larry Joseph CULLUM, Defendant-Appellant.

March 20, 1995.

Appeal from the United States District Court for the Western

District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Pursuant to 28 U.S.C. § 2255 (1988), federal inmate Larry

Joseph Cullum filed a pro se motion in district court to vacate,

set aside, or correct his sentence.1 The district court dismissed

Cullum's motion as an abuse of the proceedings under Rule 9(b) of

the Rules Governing § 2255 Proceedings, 28 U.S.C. foll. § 2255

(1994). Because Cullum was not given adequate notice of, or an

opportunity to respond to, the district court's plan to dismiss his

motion under Rule 9(b), we reverse.

I

Larry Cullum was convicted in federal court of conspiracy to

distribute methamphetamine, seven counts of manufacturing
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phenylacetone, and two counts of filing false tax returns. In a

previous § 2255 motion, Cullum claimed that his grand jury

testimony entitled him to immunity, and that the Attorney General

had improperly classified methamphetamine as a Class II controlled

substance. The district court denied his motion on the merits, and

this Court affirmed the denial.

In his current § 2255 motion, Cullum alleges that he was

"twice put in jeopardy for the same set of facts," in violation of

his Fifth Amendment rights, because he had been subject to civil

forfeiture proceedings as a result of the same drug activities that

form the basis of his criminal conviction. Upon the Government's

urging, the district court dismissed his motion as abusive under

Rule 9(b). Cullum filed an appeal, and a motion in district court

to proceed in forma pauperis on appeal. The district court denied

his motion to proceed in forma pauperis, but this Court ordered

that it be granted. In our order, we asked the Government to brief

on appeal (1) whether Cullum had been given adequate notice of, and

an opportunity to respond to, the Rule 9(b) issue; and (2) whether

the error, if any, was harmless. Cullum's habeas motion is now

before this Court on appeal.

II

"The decision whether to dismiss a motion for abuse of the

section 2255 proceedings is committed to the sound discretion of

the district court." United States v. Flores, 981 F.2d 231, 234

(5th Cir.1993). Rule 9(b) of the Rules Governing § 2255 Cases

states:
 

2While Matthews involved § 2254 rather than § 2255, "the

same rules should govern abuse of both remedies." See Flores,

981 F.2d at 234-35. 

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(b) Successive motions. A second or successive motion 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 movant to assert those

grounds in a prior motion constituted an abuse of the

procedure governed by these rules.

28 U.S.C. foll. § 2255.

In McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113

L.Ed.2d 517 (1991), the Supreme Court held that once the government

raises the question of abuse of the writ under Rule 9(b) of 28

U.S.C. § 2254 (1988), "[t]he burden to disprove abuse then becomes

petitioner's." Id. at 499 U.S. at 494, 111 S.Ct. at 1470.

"McCleskey 's formulation of the abuse of the writ doctrine also

governs abuse of the proceedings under section 2255". Flores, 981

F.2d at 234; see also United States v. Tubwell, 37 F.3d 175, 178

(5th Cir.1994) (applying McCleskey to § 2255 motions). To aid

Cullum in satisfying his burden under McCleskey, the district court

should have given him notice that (1) his motion was being

considered for dismissal, (2) dismissal was automatic if he failed

to respond, giving grounds for reconsideration of a repetitive

motion or showing why he did not raise new claims in a previous

motion, and (3) his response should contain facts, not opinions.

See Matthews v. Butler, 833 F.2d 1165, 1170 (5th Cir.1987),

overruled on other grounds by McCleskey v. Zant, 499 U.S. 467, 111

S.Ct. 1454, 113 L.Ed.2d 517 (1991).2 In addition to giving a

petitioner adequate notice that it is considering the petition for
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dismissal, the district court also must allow the petitioner at

least ten days to respond. See Bates v. Whitley, 19 F.3d 1066,

1067 (5th Cir.1994).

The Government concedes in its brief on appeal that the

district court afforded Cullum neither notice nor an opportunity to

respond before dismissing his petition under Rule 9(b). The

court's failure to do so was an abuse of its discretion. See Urdy

v. McCotter, 773 F.2d 652, 656-57 (5th Cir.1985) (holding that

district court abused its discretion in failing to provide

petitioner with notice and opportunity to respond).

We have held such an error to be harmless where there are no

facts that the petitioner could allege to prevent his claim from

being dismissed under Rule 9(b). See, e.g., Byrne v. Butler, 847

F.2d 1135, 1138 (5th Cir.1988); Johnson v. McCotter, 803 F.2d 830,

833 (5th Cir.1986). The petitioner in Johnson filed a response to

the state's 9(b) motion even though he did not receive notice.

Johnson, 803 F.2d at 833. In Byrne, we found that the petitioner

was aware of both the factual and legal bases of his new claims at

the time he had filed his original habeas petition. Byrne, 847

F.2d at 1138-40. From the record before us, we are not convinced

that Cullum would be similarly unable to allege facts sufficient to

prevent his claim from being dismissed under 9(b).

III

For the foregoing reasons, we REVERSE the district court's

dismissal of Cullum's federal habeas motion and REMAND to that

court for further proceedings consistent with this opinion.
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