1 United States Court of Appeals,

Fifth Circuit.

No. 93-1132.

William Ray McGARY, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institution Division, Respondent-Appellee.

Aug. 3, 1994.

Appeal from the United States District Co urt for the Northern

District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

GOLDBERG, Circuit Judge:

William Ray McGary appeals the district court's dismissal of

his second application for federal habeas corpus relief. In this

application, McGary argued that he was unconstitutionally deprived

of approximately 30 days of good time credit. Because we agree

with the court below that McGary' s second habeas application

constitutes an abuse of the writ, we affirm the district court's

judgment.

I. Facts and Proceedings Below

In 1985, William Ray McGary was convicted of murder and

sentenced to life imprisonment. He served more than three and one

half years of this sentence before his conviction was reversed and

his case was rema nded for a new trial. S ee McGary v. State, 750

S.W.2d 782 (Tex.Crim.App.1988). McGary subsequently pleaded guilty

to one count of murder. A state district court then sentenced him

to a 25-year term of imprisonment . McGary did not appeal this2

conviction.

After exhausting availabl e state remedies, McGary filed his

first federal petition for a writ of habeas corpus on September 20,

1989. In that petition, he argued that by re-prosecuting him, the

State of Texas violated the Double Jeopardy Clause of the Fifth

Amendment to the Constitution. In a set of supplemental pleadings,

McGary attempted to raise the same good time credit claim in his

first habeas proceeding that he now asserts in his second habeas

proceeding. However, since McGary had failed to exhaust his

available state remedies on the good time credit claim, he

voluntarily withdrew the suppleme ntal pleadings on that issue in

his f irst habeas proceeding. The district court denied McGary's

applic ation for habeas relief on the double jeopardy claim with

prejudice, and we denied a motion for a certificate of probable

cause. McGary then pursued the available state remedies on his

good time credit claim to no avail.

In December of 1992, proceeding pro se and in forma pauperis,

McGary filed a second application for federal habeas corpus relief.

In this application, McGary argued that the Texas Department of

Corrections ("TDC") unconstitutionall y deprived him of good time

credit to which he was entitled. More specifically, McGary claimed

that he was entitled to receive approximately 30 days of good time

credit under the Texas Prison Management Act ("PMA"), but that he

was denied this credit by an unconstitutional, ex pos t facto1 The provisions of the Prison Management Act, as they appear

now, are codified in chapters 498 and 499 of the Texas Government

Code.

2 In fact, the contours of McGary's good time credit claim

are not sharply defined, and we are not certain that McGary's

grievance necessarily involves a violation of the federal

Constitution. Accordingly, it is not clear that McGary's

complaint entitles him to federal habeas relief. See Reed v.

Farley, --- U.S. ----, ----, 114 S.Ct. 2291, ----, --- L.Ed.2d --

-- (1994) ("A state prisoner may obtain federal habeas corpus

relief "only on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.' ")

(quoting 28 U.S.C. § 2254) (emphasis omitted). Nevertheless, for

the purposes of this opinion, we will assume that McGary's good

time credit claim entails an unconstitutional, ex post facto

application of an amendment to the PMA.

3 application of certain amendments to the PMA. 1 We have previously

held that a retroactive application of an amendment to the PMA that

denies a prisoner the opportunity to be considered for good time

credit violates the Ex Post Facto Clause of the federal

Constitution. S ee Story v. Collins, 920 F.2d 1247, 1251 (5th

Cir.1991). 2

Upon the state's motion, the district court dismissed McGary's

second habeas petition as an abuse of the writ. We granted McGary

a certificate of probable cause to consider whether a prisoner may

challenge a TDC denial of a request for good time credit in a

federal habeas proceeding when that prisoner has previously filed

an unsuccessful federal habeas application on a separate issue.

II. 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. S anders v. United States, 373 U.S. 1,4

18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); H u dson v.

Whitley, 979 F.2d 1058, 1062 (5th Cir.1992). A court abuses its

discretion when it bases its decision on an erroneous legal

conclusion or on a clearly erroneous finding of fact.

In Story v. Collins, supra, we confronted a case closely

analogous to the one we face today. In S tory, a state prisoner

claimed that the TDC unconstitutiona lly refused to consider his

application for good time credit. The state prisoner raised that

claim in a petition for a writ of habeas corpus that also included

several other bases for habeas relief. The state argued that Rule

2(d) of the Rules Governing Section 2254 Cases required the state

prisoner to raise his good time credit claim in a separate habeas

application. Rule 2(d) provides as follows:

A petition shall be limited to the assertion of a claim for

relief against the judgment or judgments of a single state

court (sitting in a county or other appropriate political

subdivision). If a petitioner desires to attack the validity

of the judgments of two or more state courts under which he is

in custody or may be subject to future custody, as the case

may be, he shall do so by separate petitions.

Observing that Rule 2(d) limits the assertion of claims for relief

raised in a hab eas petition to "the judgment or judgments of a

single state court", the state argued that the prisoner's good time

credit claim attacked a ruling of the TDC while the prisoner's

other bases for habeas relief attacked the decision of another

court. The state thus concluded that the prisoner was required to

raise his good time credit claim in a separate habeas petition. We

rejected the state's con tention and explained that, for the

purposes of Rule 2(d), "[t]he TDC is not a state court, and the5

application of good conduct time is not a judgment." S to ry, 920

F.2d at 1251. We recognized that the prisoner's good time credit

claim "attacks the conditions of his restraint under his judgment

of conviction." Id. We therefore held that the prisoner was not

required to bring his good time credit claim in a separate habeas

petition.

In Story, we did not explicitly hold that a state prisoner who

is confined o n a single judgment of conviction and who has a

challenge to a denial of good time credit is usually required to

bring his or her existing good time credit claim in the same habeas

petition as any other claim that he or she has against his or her

conviction. Today, we so hold. Because McGary's good time credit

claim attacks the conditions of his restraint under the judgment of

conviction for murder, and because he plainly knew of that claim

when he filed his first federal habeas petition, McGary was

required to raise his good time credit claim in his first petition

for habeas relief.

We reach this conclusion because Rule 9(b) of the Rules

Governing Section 2254 Cases provides that a judge may dismiss a

second or sub sequent petition for habeas relief if the petition

fails to allege new or different grounds for relief, or—when a new

ground for relief is alleged—if the failure to raise that ground in

a prior petition constitutes abuse of the writ. Rule 9(b), Rules

Governing Section 2254 Cases; D rew v. Collins, 5 F.3 d 93, 95-96

(5th Cir.1993). Raising a new or different ground for habeas

relief in a second or subsequent habeas petition constitutes abuse3 We have rejected the contention that the cause and

prejudice standard does not apply to pro se habeas petitioners.

See Saahir v. Collins, 956 F.2d 115, 118 (5th Cir.1992)

(" McCleskey

draws no distinction between pro se petitioners and

those represented by counsel.").

6 of the writ unless the petitioner can show both "cause" and

"prejudice"—in other words, both a legitimate excuse for failing to

include the new claim in a previous federal petition and actual

harm from the error claimed. M cCleskey v. Zant, 499 U.S. 467, 111

S.Ct. 1454, 113 L.Ed.2d 5 17 (1991); D rew, 5 F.3d at 96. 3 "The

requirement of cause in the abuse of the writ context is based on

the principle that [the] petitioner must conduct a reasonable and

diligent investigation aimed at including all relevant claims and

grounds for relief in the first federal habeas petition."

McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472 . To demonstrate

cause, the petitioner must show that some "external impedi ment,

whether it be government int erference or the reasonable

unavailability of the factual bas is for the claim, must have

prevented [th e] petitioner from raising the claim.... [T]he

question is whether [the] petitioner possessed, o r by reasonable

means could have obtained, a sufficient basis to allege a claim in

the first petition and pursue the matter through the habeas

process." I d. If a petitioner cannot establish cause, a district

c ourt will find that the prisoner has abused the writ. However,

the McCleskey

Court suggested that "if [a] petitioner cannot show

cause, th e failure to raise the claim in an earlier petition may

nonetheless be excused i f he or she can show that a fundamental

miscarriage of justice would result from a failure to entertain the7

claim." I d. 499 U.S. at 494-95, 111 S.Ct. at 1470. We have

explained that a " "funda mental miscarriage' implies that a

constitutional violation probably caused the conviction of an

innocent person." J ones v. Whitley, 938 F.2d 536, 541 (5th Cir.),

cert. denied,

--- U.S. ----, 112 S.Ct. 8, 115 L.Ed.2d 1093 (1991);

see also Sawyer v . Whitley,

--- U.S. ----, 112 S.Ct. 2514, 120

L.Ed.2d 269 (1992) (explaining that the fundamental miscarriage of

justice exception to the abuse of the writ doctrine ensures that

federal constitutional errors do not result in the incarceration of

innocent persons.).

In the pr esent case, the state correctly observed in its

motion to dismiss that McGary attempted to raise his good time

credit claim in his first applica tion for habeas relief, but

voluntarily withdrew that claim from consi d eration before the

district court entered judgment in that case. The state thus

adequately satisfied its burden of pleading abuse of the writ. To

avoid a finding that his second petition constituted an abuse of

the writ, McGar y was then required to show both cause for his

failure to raise his good time credit c laim in his first habeas

proceeding an d prejudice resulting therefrom. However, "[a]

failure to raise a claim in the first petition may not be excused

for cause if the claim was reasonably available at that time."

Selvage v. Collins, 975 F.2d 131, 133 (5th Cir.1992) (on petition

for rehearing), cert. denied,

--- U.S. ----, 113 S.Ct. 2445, 124

L.Ed.2d 663 (1993). McGary has not—indeed, he cannot—show that he

did not know of his good time credit claim when he filed his first8

application for habeas relief. McGary plainly knew of the facts

and legal theories that forme d the basis of his good time credit

claim when he filed his first federal habeas petition. He briefly

attempted to interject the issue in h is first habeas proceeding,

but later voluntarily dropped it. McGary's good time credit claim

was thus reasonably available to him when he filed his first

federal habeas petition. McGary's evanescent memory does not

excuse his failure to assert th e good time credit issue in his

initial habeas petition.

McGary asserts that his failure to have exhausted the

available state remedies on his good time credit claim when he

filed his first habeas petition constitutes cause for failing to

include that claim that petition. We have repeatedly rejected this

argument. More than a decade ago, we wrote that "the sole fact

that the new claims were unexhausted when the earlier federal writ

was prosecuted will not excuse their omission." J ones v. Estelle,

722 F.2d 159, 168 (5th Cir.1983) (en banc), cert. denied, 466 U.S.

976, 104 S.Ct. 2356, 80 L.Ed. 2d 829 (1984); s ee also Rudolph v.

Blackburn, 750 F.2d 302, 305 (5th Cir.1984) (quoting same). McGary

cannot be allowed to rely on his failure to exhaust state remedies

on his good time credit claim to justify his failu re to include

that claim in his first habeas application. We do not accept his

proposition that, in this case, two wrongs make a right.

McGary also argues that the abuse of the writ doctrine

applies only to deliberate decisions not to include all of one's

claims in a single habeas petition. He is mistaken. "Abuse of the9

writ is not confined to instances of deliberate abandonment."

McCleskey, 499 U.S. at 489, 111 S.Ct. at 1467. At one point,

McGary suggests that the prohibition against second or subsequent

habeas petitions that raise new or different claims applies only to

second or subsequent petitions that proclaim a petitioner's

innocence. We find no basis for such a reading of the abuse of the

writ doctrine. Indeed, case law points in the opposite direction.

See Herrera v. Collins, --- U.S. ----, 113 S.Ct. 853, 122 L.Ed.2d

203 (1993); S awyer v. Whitley,

--- U.S. ----, 112 S.Ct. 2514, 120

L.Ed.2d 269 (1992).

Finally, we do not find that a fundamental miscarriage of

justice would result from a failure to entertain McGary's good time

credit claim. As noted above, the "fundamental miscarriage of

justice" standard has only been applied to allow prisoners who

cla im actual innocence to file second or subsequent habeas

petitions that would otherwise be considered abusive. Nothing in

the record even intimates that McGary is innocent. Hence, our

refusal to address McGary's good time credit claim will not result

in a fundamental miscarriage of justice.

McGary cannot show that he had cause for his failure to raise

his good time credit claim in his first habeas petition.

Accordingly, we need not address whether McGary can show that he

was prejudiced by his failure to raise the good time credit issue

in his first federal habeas petition. The district court correctly

dismissed McGary's second habeas petition as an abuse of the writ.

The law requires federal habeas petitioners to assert in their10

first habeas applicatio n all claims known of, all claims that

should have been known of, and all claims that had been known of.

By failing to voluntarily dismiss his first habeas petition after

he realized that he had not exhausted the available state remedies

for his good time credit claim (or by failing to ask for a stay of

his first ha beas proceeding), McGary effectively waived his

opportunity to raise that issue in a second habeas application.

Second or sub sequent petitions for federal habeas relief are

justified on the ground that prisoners should not be deprived of a

federal right if the failure to assert that right in a prior habeas

petition was not due to anything they could have done. This rule

demonstrates that we do not base the determination of potentially

abusive habeas petitions on the number of petitions that preceded

it. We base such determinations on what was reasonably available

when the previous petitions were filed. Nevertheless, this is not

a case in which the prisoner's failure to assert his federal right

in an earlier habeas application can be excused. McGary could

have, and should have, raised his double jeopardy claim and his

claim for loss of good time credit in a single petition for habeas

relief.

III. Conclusion

The judgment of the district court is AFFIRMED.