1 United States Court of Appeals,

Fifth Circuit.

No. 94-10302

Summary Calendar.

Johnny Logan HICKS, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellee.

Oct. 13, 1994.

Appeal from the Uni ted States District Court for the Northern

District of Texas.

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

JERRY E. SMITH, Circuit Judge:

Johnny Hicks appeals the denial of his petition for writ of

habeas corpus for procedural default in the state courts. Because

Hicks failed to raise his Batson claim on direct appeal in state

court, we affirm.

I.

In 1985, Hicks was convicted by a state jury of aggravated

robbery. In 1986, the Texas Court of Criminal Appeals affirmed the

conviction, 722 S.W.2d 257. Hicks filed petitions for writs of

habeas corpus in June 1990 and February 1992. In October 1990, the

Court of Criminal Appeals cited Hicks for abuse of the writ.

Thereafter Hicks filed a federal habeas petition asserting

that the Court of Criminal Appeals had failed to consider whether

a venireman had been improperly excused in violation of Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); it2

was dismissed for failure to exhaust state remedies in March 1993.

Hicks did not appeal but filed a third h abeas petition in state

court raising the Batson is sue; the court refused to take any

action on the application because it did not satisfy the

requirements for consideration given the October 1993 order citing

him for abuse of the writ.

In his second federal habeas petition, Hicks asserted, inter

alia, the alleged Batson violation. In its response, the state

asserted that the petition should be dismissed for failure to make

the claim in state court, at the time of the state trial or while

the state appeal was in progress in the state court of appeals and

the Court of Criminal Appeals; that Hicks was aware that a

"Bat son-type claim" might be available during the voir dire

examination; and that his failure to raise it in the state trial

or appellate courts amounted to procedural default.

The magistrate judge determined that Hicks had satisfied the

exhaustion requirement, but the magis t rate judge's report and

recommendation did not address squarely the procedural default

issue and examined, instead, the questions of whether Hicks failed

to raise the Batson claim in state appellate court and whether the

state court had an obligation to do so sua sponte. The federal

district court did not address the abuse-of-t he-writ disposition

resulting from Hick's return to state court to exhaust the Batson

claim.

Concludin g that Hicks had not raised the B atson issue on

direct appeal, the magistrate judge recommended denial of Hick's3

petition. Over Hick's objections, the district court adopted the

findings of the magistrate judge and denied the petition.

II.

A federal court may not grant a habeas petition unless the

petitioner "has exhausted the remedies available in the courts of

the state, or [ ] there is either an absence of available state

corrective process or the existence of circumstances rendering such

process ineffective to protect the rights of the prisoner." 28

U.S.C. § 2254(b) (1988). A petitioner is generally not considered

to have exhausted state remedies within the meaning of subsection

(b) if "he has the right under th e law of the State to raise, by

any available procedure, the question presented." 28 U.S.C. §

2254(c) (1988). In interpreting the exhaustion requirement, the

Supreme Court has held that a petitioner generally need not utilize

state habeas corpus or other state collateral proceed ings to

satisfy t he requirement that he exhaust the available state

remedies. B rown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 402, 97

L.Ed. 469 (1953). Where the petitioner urges an issue he failed to

raise on direct appeal, however, he must use available state

collateral procedures to satisfy the exhaustion requirement. W ade

v. Mayo, 334 U.S. 672, 677, 6 8 S.Ct. 1270, 1273, 92 L.Ed. 1647

(1948).

Hicks failed to raise the B atson claim on direct appeal in

the Court of Criminal Appeals. B at son was decided on April 30,

1986, while Hicks's case was pending in the state court of appeals,

which did not actually issue its opinion until December 31, 1986.4

Nor did petitioner raise a claim flowing from the exclusion of

black veniremen under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824,

13 L.Ed.2d 759 (1965), on direct appeal. Accordingly, he had a

duty to exhaust state habeas remedies before turning to the federal

courts.

Federal review of a habeas claim is barred by the procedural

default doctrine if the last state court to review the claim states

clearly and expressly that its judgment rests on a procedural bar.

H arris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 10 42, 103

L.Ed.2d 308 (1989). The issue before this court is whether a state

"abuse of the writ" d octrine, which precludes state collateral

consi deration of issues not raised on direct appeal, constitutes

such a procedural bar.

The Texas abuse-of-the-writ doctrine precludes Texas courts

from granting habeas writs where the petitioner has failed, without

cause, to address the same issue on direct appeal or in a previous

petition. Set forth in E x parte Dora

, 548 S.W.2d 392, 393-94

(Tex.Crim.App.1977), the doctrine allows the court, after finding

t hat petitioner has abused the writ, to refuse to accept or file

the habeas petition absent a showing of cause that the contention

could not have been raised in the prior proceeding.

Hicks was cited for abuse of the writ by the Court of Criminal

Appeals on October 31, 1990. The court stated: "It is obvious

applicant is continuing to raise issues which have been presented

and rejec ted or should have been presented on appeal and in his

prior applications." E x parte Hicks, No. 5,988-08, at 2.5

Accordingly, the court held that "applicant's contentions have been

waived and abandoned by his a buse of the writ of habeas corpus."

I d. (citing E

x parte Bilton, 602 S.W.2d 534 (Tex.Crim.App.1980);

Dora ). The court extended the finding of abuse of the writ to

"any fu ture applications seeking to challenge the instant

conviction or any prior convictions used to enhance the punishment

assessed," absent a showing of good cause. Id.

On March 23, 1993, Hicks finally filed a state habeas petition

asserting his Batson claim. Pursuant to the Court of Criminal

Appeals's prior finding of abuse of the writ, the state court took

n o action on the petition and thereby rested on an adequat e and

independent state law ground, the Texas abuse of the writ doctrine.

The Texas abuse of the writ doctrine, as stated by the courts

and as applied to Hicks, bars review of both issues that were not

raised on direct appeal and issues that were not raised in prior

state habeas petitions. This court and other circuits have held

the first type of procedural bar to be an adequate and independent

state ground for purposes of finding procedural default. S ee,

e.g., Wilcher v. Hargett, 978 F.2 d 872 (5th Cir.1992), c ert.

denied,

--- U.S. ----, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993); B ooker

v. Wainwright, 764 F.2d 1371 (11th Cir.1985).

In Wilcher, we addressed the issue of how regularly a state

rule must be foll owed for it to constitute a procedural bar. We

reversed the district court's dismissal of a habeas petition on the

ground that the Mississippi courts had not regularly and strictly

asserted a procedural bar to claims not raised on direct appeal.1 See, e.g., Ex parte Choice, 828 S.W.2d 5

(Tex.Crim.App.1992); Ex parte Emmons, 660 S.W.2d 106

(Tex.Crim.App.1983); Ex parte Stuart, 653 S.W.2d 13

(Tex.Crim.App.1983); Ex parte Bilton, 602 S.W.2d 534

(Tex.Crim.App.1980); Dora.

6 The Texas courts have a history of regular application of the abuse

of the writ doctrine, 1 excepting only cases where t he issue in

questio n "could not reasonably have been raised in previous

applications, and presents important questions of law which should

be resolved." Choice, 828 S.W.2d at 5 n. 1.

A federal c ourt can review a procedurally defaulted habeas

claim if the pe titioner can demonstrate both cause for his

noncomplia nce and actual prejudice resulting therefrom. U nited

S tates v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1 594, 71

L.Ed.2d 816 (1982). To excuse his procedural default relating to

the Batson claim, Hicks "must shoulder the burden of showing, not

merely that the errors at his trial created a possibility of

pre judice, but that they worked to his a ctual and substantial

disadvantage, infecting his entire trial wi t h error of

constitutional dimensions." Id.

Hicks has made no showing of prej udice and has not

demonstrated a substantive basis for a Batson claim. Five black

veniremen were excluded at trial. Hicks did not object to the

exclusion of four of them, challenging only that of the fifth,

Williams.

A claim under Batson cannot be asserted on appeal where the

defendant did not object at trial, as Hicks did not with regard to

the first four. See, e.g., Wilkerson v. Collins, 950 F.2d 1054,7

1063 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3035, 125

L.Ed.2d 722 (1992). The fifth, Williams, was successfully

challenged for cause by the prosecution because of absenteeism.

Will iams was nowhere to be found when the jury was called

into the courtroom to be sworn in. Nor was he present at 9:00 a.m.

the next day. At 9:25 a.m., the judge proceeded without Williams.

At about 11:00 a.m., Williams appeared in court pursuant to an

attachment that had been issued the day before, when he was first

discovered missing. The state objected to Williams on the basis

that he had missed the court's instructions and the state's initial

voir dire, and the objection was sustained by the court. B atson is

inapplicable to an exclusion for cause in a case such as th is,

where a venireman's erratic behavior and absences h a ve

inconvenience d the court and where the reasons for the exclusion

appear on the face of the record.

AFFIRMED.