### REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-40920

RAUL RODRIGUEZ,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

________________________________________________

January 15, 1997

Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Raul Rodriguez (Rodrig uez), currently confined in the Texas

D epartment of Criminal Justice, McConnell Unit, filed this hi s

third federal habeas corpus petition in the United States District

Court for the Southern District of Texas pursuant to 28 U.S.C. §

2254. The district court dismissed his petition as an abuse of the

writ. Rodriguez appeals. We affirm.

Facts and Proceedings Below

On the evening of February 24, 1981, Rodriguez and a female

companion entered the Royal Drive Inn, a bar in Corpus Christi,

Texas. Rodriguez and his companion sat down at a table. After a2

short while, Rodriguez got up and walked towards the bar’s

restroom. For reasons not fully explained at trial, Rodriguez

approached the victim, Irma Cruz (Cruz), who was playing pool at a

table near the restroom. According to testimony at his trial,

Rodriguez, in Spanish, called her a bitch and slapped her, causing

her to fall to the floor. Cruz produced a knife and stabbed

Rodriguez either in his back or on his side. Immediately

afterward, Rodriguez shot Cruz in the left side of her neck.

Rodriguez then left the bar with his companion. Cruz died of her

wound.

Rodriguez was tried for murder on March 9, 1982, in state

district court in the 148th Judi cial District in Nueces County,

Texas. The jury returned a verdict of guilty on the lesserincluded offense of voluntary manslaughter on March 12, 1982.

Punishment, also determined by the jury, was assessed at 85 years’

imprisonment and a $10,000 fine. S tate v. Rodriguez

, No. 82-CR121-E.

The Texas Court of Appe als, Thirteenth Supreme Judicial

District of Tex as (Corpus Christi), affirmed his conviction on

November 23, 1983. R odriguez v. State

, No. 13-82-114-CR. The

T exas Court of Criminal Appeals refused his petition for

discretionary review on May 9, 1984. R odriguez v. State

, P.D.R.

No. 106-84.

Rodriguez filed four separate state applications for writs of

habeas corpus on July 3, 1984, February 21, 1989, April 19, 1994,

and April 17, 1995. E x Parte Rodriguez

, No. 14,299; No. 14,299-02;

No. 14,299-03; No. 14,299-04. The applications were denied by the3

Texas Court of Criminal Appeals without written order on November

21, 1984, June 21, 1989, July 20, 199 4

, and June 28, 1995,

respectively.

Rodriguez also filed two prior federal petitions for writs of

habeas corpus

. His first federal petition, filed in 1985, was

denied on the merits in 1986. R odriguez v. Procunier

, No. C-85-56

(S.D. Tex. Feb. 13, 1986). This Court denied a certificate of

probable cause to appeal that denial. Rodriguez v. McCotter , No.

86-2118 (5th Cir. Oct. 1, 1986).

Rodriguez’s second federal petition for a writ of habeas

corpus, f i led in 1990, was denied as an abuse of the writ.

Rodriguez v. Collins

, No. C-90-315 (S.D. Tex. Dec. 16, 1991). This

Cou rt again denied a certificate of probable cause to appeal.

Rodriguez v. Collins , No. 92-7072 (5th Cir. Aug. 10, 1992), reh’g

denied , No. 92-7072 (5th Cir. Oct. 9, 1992).

Rodriguez filed this action, his third federal petition for a

writ of habeas corpus , on October 4, 1994. Proceeding pro se and

in forma pauperis

, Rodriguez ass erted claims of ineffective

assistance of trial and appellate couns el. Respondent moved to

dismiss Rodriguez’s petition for abuse of the writ under Rule 9(b)

of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.

Rodriguez filed a motion to amend his section 2254 petition and a

motion in opposition to the state’s motion to dismiss. In his

motions, Rodriguez sought to abando n certain of his ineffective

assistance of counsel claims and to add claims concerning the trial

court’s instruction on the intent element of his offense,

ineffective assistance of appellate counsel, and ineffective4

assistance of trial counsel for failing to request a special selfdefense instruction after the jury began its deliberations. The

d istrict court granted the state’s motion to dismiss Rodriguez’s

petition as an abuse of the writ. Rodriguez filed a motion for

reconsideration which the district court denied. Rodriguez filed

a timely notice of appeal. The district court granted a

certificate of probable cause in November 1995. We now affirm.

Discussion

“A district court’s decision to dismiss a second or subsequent

federal habeas petition for abuse of the writ lies within its sound

discretion. We will reverse such a dismissal only if we find an

abuse of that discretion.” M cGary v. Scott

, 27 F.3d 181, 183 (5th

Cir. 1994) (citing Sanders v. United States

, 83 S.Ct. 1068, 1078-79

(1963)). A district court abuses its discretion when it dismisses

a petition on an erroneous legal conclusion or cl early erroneous

finding of fact. Id.

Rule 9(b) provides that a judge may dismiss a second or

successive habeas petition “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 .” Rule 9(b), Rules Governing Section 2254 Cases, 28

U.S.C. foll. § 2254 (emphasis added). In M cCleskey v . Zant , the

Supreme Court determined that raising a new or different claim in

a subsequent habeas pe tition constitutes an abuse of the writ

unless the petitioner can demonstrate both “cause” for his failure1 A district court judge may, of course, raise the issue s ua

sponte

. See Williams v. Whitley , 994 F.2d 226, 231 (5th Cir.),

cert. denied

, 114 S.Ct. 608 (1993); Woods

, 933 F.2d at 3 23 n.3;

Schouest v. Smith

, 914 F.2d 713, 715 (5th Cir. 1990), modified

, Schouest v. Whitley , 927 F.2d 205 (5th Cir. 1991).

5 to assert the claim in an earlier petition and “prejudice” if the

court fails t o consider the new claim. 111 S.Ct. 1454, 1470

(1991); Saahir v. Collins , 956 F.2d 115 (5th Cir. 1992); Woods v.

Whitley

, 933 F.2d 321, 323 (5th Cir. 1991). The cause standard

requires a habeas petitioner to show that “‘some objective factor

external to the defense’” prevented the petitioner from raising the

claim. M cCleskey

, 111 S.Ct. at 1470 (quoting Murray v. Carrier

,

106 S.Ct. 2639, 2645 (1986)). Examples of external impediments

include active government interference or the reasonable

unavailability of the factual or legal basis for the claim. I d. at

1472. If a petitioner fails to demonstrate cause, the court need

not consider whether there is actual prejudice. Saahir , 956 F.2d

at 118.

The government bears the burd en of pleading abuse of the

writ. 1 McCleskey

, 111 S.Ct. at 1470; Woods

, 933 F.2d at 323. The

government satisfies this b u rden “if, with clarity and

particularity, it notes petitioner’s prior writ history, identifies

the claims that appear for the first time, and alleges that

petitioner has abused the writ.” M cCleskey

, 111 S.Ct. at 1470.

The burden to disprove abuse then shifts to the petitioner. Id.

Finally, even if the petitioner cannot demonstrate cause, he

may ultimately prevail if he can demonstrate that a “fundamental

miscarriage of justice” would result from failure to entertain the2 In U rdy v. McCotter

, 773 F.2d 652, 656 (5th Cir. 1985), this

Court held that “the petitioner must be given specific notice that

the court is cons idering dismissal and given at least 10 days in

whi ch to explain the failure to raise the new grounds in a prior

petition.” Notice serves to inform the petitioner (1) that

dismissal is being considered; (2) that dismissal will be automatic

should he fail to respond; and (3) that his response should present

facts rather than mere opinion or conclusion. J ohnson v. McCotter

, 803 F.2d 830, 832 (5th Cir. 1986).

Although it appears the district court failed to comply with

Rule 9(b)’s notice requirement, Rodriguez does not raise this issue

on appeal. We will ordinarily not address issues not raised and

briefed by appellants. See R.A.M. Al-Ra’id v. Ingle , 69 F.3d 28,

31 (5th Cir. 1995). In any event, this Court has frequently held

that failure to comply with Rule 9(b)’s notice requirements is

subject to harmless error analysis. W illiams v. Whitley

, 994 F.2d

226, 230 n.2 (5th Cir.), cert. denied

, 510 U.S. 1014 (1993); Byrne

v. Butler

, 847 F.2d 1135, 1138-40 (5th Cir. 1988); Johnson

, 803

F.2d 830. Rodriguez filed a timely motion in opposition to the

state’s Rule 9(b) motion to dismiss, and there is nothing to

indicate that he did not in his opposition raise all available

reasons why there should not be a dismissal under Rule 9(b). Even

if the issue of lack of formal Rule 9(b) notice had been raised on appeal, we would conclude that such omission was harmless error.

6 new or successive habeas claim. Id. This class of cases is

exceedingly narrow, resulting from “extraordinary instances when a

constitutional violation probably has caused the conviction of one

innocent of the crime.” I d. “[T]he term ‘actual innocence’ means

factual

, as opposed to legal

, innocence—— ‘legal’ innocence, of

course, would arise whenever a constitutional violation by itself

requires reversal, whereas ‘actual’ innocence, as the Court stated

in McCleskey

, means that the person did not commit the crime.”

Johnson v. Hargett , 978 F.2d 855, 859-60 (5th Cir. 1992)(emphasis

in original), cert. denied , 113 S.Ct. 1652 (1993).

From the outset, we note that the government met its burden of

pleading abuse of the writ in its motion to dismiss filed with the

district court. 2 Accordingly, Rodriguez bore the burden of

establishing cause and prejudice for his f ailure to raise his7

claims in one of his prior federal habeas petitions.

Rodriguez’s only assertion of cause concerns his first issue

o n appeal, a contention that the trial court used an

unconstitutional, “equivocal” instruction on the element of intent.

Rodriguez argues that the legal basis for this claim was

unavailable prior to the Texas Court of Criminal Appeals decision

in Cook v. State

, 884 S.W.2d 485 (Tex. Crim. App. 1994),

constituting “cause” for his failure to assert the claim in a prior

petition.

Rodriguez acknowledges that he did not raise this claim in his

petition filed with the district court. He did, however, seek to

amend his petition to add this claim of erroneous jury instruction

in his motion to amend filed in response to the state’s motion to

dismiss for abuse of the writ. The district court’s order granting

the state’s motion to dismiss did not address Rodriguez’s amended

claims specifically. Rodriguez’s motion for reconsideration was

also denied without addressing his Cook claim. For the reasons set

forth below, we find that nei ther the date of the Texas Court of

Criminal Appeals’ decision in Cook nor, for that matter, the status

of Texas law at the time of his earlier petitions provide the

requisite “cause” to excuse his failure to assert a cognizable

federal claim in his prior federal habeas actions.

In Cook

, the appellant was charged with intention al murder

pursuant to Texas Penal Code § 19.02(a)(1) and was convicted by a

jury of the lesser-included offense of voluntary manslaughter. 884

S.W.2d at 485. At trial, defense counsel objected to the jury

charge on the grounds that the “charge [did] not limit the3 Paragraph three of the jury charge provided:

“A person acts intentionally, or with intent, with

respect t o the nature of his conduct or to a result of

his conduct when it is his conscious objective or desire

to engage in the conduct or cause the result.

A p erson acts knowingly, or with knowledge, with

respect to the nature of his conduct or to the

circumstances surrounding his conduct when he is aware of

the nature of his conduct or that the circumstances

exist. A person acts knowingly, or with knowledge, with

respect to a result of his conduct when he is aware that

his conduct is reasonably certain to cause the result.”

Paragraph four of the jury charge provided:

“Now, if you find f rom the evidence beyond a

reasonable doubt that on or about the 24th day of

February, 1981, in Nueces County, Texas, the Defendant,

Raul Rodriguez, did intentionally or knowingly cause the

death of an individual, Irma Cruz, by shooting her with

a firearm, as set forth in the indictment, then you will

8 definition of both culpable mental states to the result of the

offense only.” I d. at 486. The trial court overruled the

o bjection, charging the jury with the definitions of

“intentionally” and “knowingly” set forth in Texas Penal Code §

6.03. Id. The Court of Criminal Appeals reversed, holding that,

because “[i]ntentional murder under § 19.02(a)(1) is a ‘result of

conduct’ offense, . . . the trial judge erred in not limiting the

culpable mental states to the result of appellant’s conduct.” I d.

at 491. Accordingly, the case was remanded to determine the actual

harm, if any, suffered by the appellant. Id. at 492.

As in Cook

, Rodriguez was indicted for intentional murder and

was convicted on the le sser-included offense of voluntary

manslaughter. The jury was also given a charge on the definitions

of “intentionally” and “knowingly” that tra cked the language of

Texas Penal Code § 6.03. 3find the Defendant guilty of Murder.

Unless you so find beyond a reasonable doubt, or if

you have a reasonable doubt as to whether Defendant is

guilty of Murder, then you will acquit him of Murder and

next consider whether he is guilty of the lesser included

offense of Voluntary Manslaughter.” (Emphasis added).

4 The state correctly points out that even under Texas law, the

“erroneous” j ury instruction would be subject to harmess error

analysis. See Cook , 884 S.W.2d at 491-92.

5 Thus, appellant’s reply brief states: “[B]efore the Cook

case, case law was not well settled.”

6 The state opposed Rodriguez’s most recent state h abeas claim,

his four th, on precisely the ground that he failed to object to

this aspect of the charge. Presumably this was the ground on which

the Court of Crminal Appeals denied his claim. S ee Ex Parte

Rodriguez (Memorandum and Order), No. 82-CR-0121E(4) (District

Court, 148th Judicial District, Nueces County, Texas May 9, 1995)

(stati ng, in recommending to the Court of Criminal Appeals that

habeas relief be denied, that “the assertions contained in the

State’s answer are correct”). S ee, e.g., Lott v. Hargett

, 80 F.3d

161, 164 (5th Cir. 1996).

9 The state concedes that the definitional portion of the jury

charge (paragraph three of th e charge) used in Rodriguez’s trial

w ould probably constitute error under Texas law. 4 Rodriguez did

not object to this aspect of the char ge. Both Rodriguez and the

state agree, however, that at the time of trial the law regarding

the validity of the definitional in structions was unsettled. 5

Accordingly, Rodriguez had the oblig ation to object, as did the

defendant in Cook

, to the instructions in order to preserve his

cla im. 6 A f ederal court, addressing whether a successive federal

habeas petition is an abuse of the writ, must determine what

federal constitutiona l claims were reasonably available to the

petitioner at the time of his prior federal habeas petitions. It

is only when such a claim “was so novel that it lacked a reasonable

basis in existing law” that the failure to assert the claim in an7 The issue debated in C ook was not whether under Texas law

murde r or voluntary manslaughter had as a necessary element that

the accused have intended to kill the victim, it being clear that

such intent had long been a required element. The issue was rather

whether including in the definitional portion of the charge a

definition of intent that extended to intent to engage in the

underlying conduct ( e.g. pulling the trigger on a pistol), as well

as and alternatively to intent to effect the ultimate criminal

result ( e.g. death of the victim), could be reversible error, where

the charge was properly objected to on this basis and prejudice

could be shown, notwithstanding that the application portion of the

charge told the jury that in order to convict it must find that the

defendant intentionally caused the death of the decedent.

10 earlier petit ion is excused for cause. J ames v. Cain

, 50 F.3d

1327, 1331 (5th Cir.), cert. denied , 116 S.Ct. 310 (1995). Even

had Rodriguez not con ceded the unsettled nature of the law

regarding the instructions at issue, he could not have established

the requisite novelty. The C ook opinion itself cited several Texas

cases——decided prior to Rodriguez’s earlier petitions——that

addressed result-oriented offenses, see Lugo-Lugo v. State , 650

S.W.2d 72, 86-87 (Tex. Crim. App. 1983), and the issue presented in

Cook, see Kelly v. State

, 748 S.W.2d 236 (Tex. Crim. App. 1988);

Alvarado v. State , 704 S.W.2d 36 (Tex. Crim. App. 1985); Beggs v.

State

, 597 S.W.2d 375 (Tex. Crim. App. 1980). 7 There has been no

change in federal constitutional law applicable to the jury charge

at issue and we are not bound to recognize an error of

constitutional dimension simply because Texas has chosen to abandon

a particular form of jury charge. Accordingly, we are unpersuaded

that Rodriguez was prevented from asserting his claim in his prior

federal habeas petitions.

Because Rodriguez cannot establi sh cause for his failure to

assert the claim in his prior federal habeas petitions, he must8 The prejudice analysis for allegedly defective jury

instructions examines “whether the ailing instruction by itself so

infected the entire trial that the resulting conv iction violates

due process, not me rely whether the instruction is undesirable,

erroneous, or even universally condemned.” Kinnamon v. Scott , 33

F.3d 462, 465 (5th Cir.) (quoting Henderson v. Kibbe

, 97 S.Ct.

1730, 1737 (1977) (citation and internal quotation marks omitted),

cert. denied , 115 S.Ct. 660 (1994)).

11 proceed, if at all, through the fundamental-miscarriage-of-justice

exception. S ee Ward v. Cain

, 53 F.3d 106, 108 (5th Cir. 1995).

Rodriguez maintains his innocence and contends that, as a result of

the erroneous jury instruction, failure to address his Cook claim

would result in a “miscarriage of justice.” As noted above,

Rodriguez bears a heavy burden under the fundamental-miscarriageof-justice doctrine. Rather than simply establishing “prejudice,” 8

he must demonstrate that the al leged “constitutional violation

probably has caused the conviction of one innocent of the crime.”

McCleskey , 111 S.Ct. at 1470.

After a thorough review of the record we are satisfied that it

is not probable that the asserted deficiencies in the jury charge

resulted in the conviction of an innocent man. Rodriguez has not

demonstrated that it is more likely than not that no reasonable

juror would have convicted him had the charge not contained the

language of which he complains. S ee Schulp v. Delo

, 115 S.Ct. 851,

867 (1995). First, there is not even the reasonable likelihood

that the jury instructions were applied in a constitutionally

i mpermissible manner, much less resulted in the conviction of an

innocent defendant. S ee Kinnamon

, 33 F.3d at 465. On two prior

occasions we have found the language used in the appl ication9 See supra note 2.

10 Addressing the intent element set forth in the jury

instructions, the prosecutor told the jury during his closing

argument:

“It says that our law provides that a person commits the

offense of murder if he intentionally or knowingly causes the death of another person, and I submit to you that’s

what you’ve got in this case. When he shot that woman in

the neck from a distance of six feet, eight feet, or

halfway across the bar, he knew what the result was going

to be of shooting her.

. . . He intentionally caused the

result. He intentionally caused another person to die

. . . . There’s voluntary manslaughter, and that’s a

lesser offense, and it says basically that it’s just like

murder except he caused the death under the influence of

sudden passion arising from adequate cause.”

11 And, there is nothing to indicate that at trial counsel for

either side interpreted the charge as requiring the jury to find

anything less than that Rodriguez intended to kill the victim in

order to convict him of voluntary manslaughter.

12 paragraph (paragraph four) of Rodriguez’s jury instruction 9

eliminates any perceived ambiguity in the definitional paragraph.

See id. at 465 -66; B uxton v. Collins

, 925 F.2d 816, 824-25 (5th

Cir.), cert. denied

, 111 S.Ct. 1095 (1991). Second, the

prosecutor’s closing argument makes clear that the intent element

of the murder offense referred to the result of the offense (death

of the victim) rather than the act of discharging a fir earm. 1 0

Third, the jury was properly instructed not only on the law as it

concerns intentional murder and voluntary mansl aughter, but was

also given instructions on the additional lesser-included offenses

of involuntary manslaughter (reckless homicide), criminally

negli gent homicide, and unlawfully carrying a handgun. The jury

was also instructed on self defense. 11 Finally, Rodriguez presents

no new facts that demonstrate his innocence—— only new legal12 To the extent that Rodriguez asserts a claim of ineffective

assistance of trial or appellate counsel based on Cook

, we note

only that such a claim is internally inconsistent with his claim

that he had cause f or his failure to assert the claim in a prior

federal habeas petition. As we have determined that the grounds

Rodriguez chooses to assert in this petitio n were reasonably

available to him at the time of his two prior federal petitions, we

likewise reject his argument that his claims concerning counsel

were not reasonably available until the Texas Criminal Court of

Appeals delivered its Cook decision.

13 Neither party has raised the possible relevance of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and,

as it appears to us that its provisions could not possibly require

any result here other than denial of relief to Rodriguez, we give

no further consideration to the AEDPA.

13 “arguments” derived from a case that, arguably for the first time,

shed new, clarifying light on yet another possible avenue for him

to collaterally challenge his state conviction. 12

Conclusion

Rodriguez has failed to demonstrate cause for his failure to

raise in his prior, federal habeas petitions any of his presently

asserted claims and has likewise fai led to demonstrate that his

present cl aims reflect the presence of any constitutional error

which probably resulted in the conviction of one who is actually

innocent. We accordingly affirm the district court’s dismissal of

this, his third federal habeas petition. 13

AFFIRMED