1 United States Court of Appeals,

Fifth Circuit.

No. 93-1276

Summary Calendar.

Richard L. LOWE, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellee.

Dec. 2, 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:

Richard Lowe appeals the denial of his petition for writ of

habeas corpus for procedural default in the state courts. Because

Lowe failed to raise his ineffectiveness of counsel and

plea-voluntariness cl aims on direct appeal and in his first five

habeas corpus petitions in state court, we affirm.

I.

In 1986, Lowe pled guilty in state district court to injury to

a child, inde cency with a child, and aggravated sexual assault.

The state trial judge did not give Lowe permission to appeal as

required by T EX .C ODE C RIM .P ROC .A NN . art. 26.13(3) (Vernon 1989).

Foreclosed from direct appeal, Lowe challenged his conviction

through a surfeit of state habeas corpus petitions. After the

fourth of these petitions , the state trial court determined that

Lowe had abused the habeas process, and the Texas Court of Criminal2

Appeals denied Lowe's application without written order.

Undeterred, Lowe filed a fifth habeas petition in state court.

Relying upon the earlier finding that Lowe had abused the writ, the

trial court did not reach the merits of his application. It did,

however, explicitly determine that Lowe's complaints were all

either repetitious or of a character such that they should have

been raised in earlier petitions. In a written opinion, the trial

court determined that Lowe had abused the habeas process for the

second time. The Court of Criminal Appeals affirmed, holding that

Lowe's complaints had been "waived and abandoned by his abuse of

the writ of habeas corpus."

In his sixth state habeas petition, in 1990, Lowe finally got

around to making the claims he is asserting in the instant federal

habeas petition, alleging ineffective assistance of counsel and the

involuntariness of his guilty plea. After reviewing the petition,

the Court of Criminal Appeals issued an unpublished opinion

expressly citing Lowe for abuse of the writ:

A proper respect for the concept of justice which the

office of the Great Writ is to protect, re quires that

applications be filed in earnest and that all contentions of

merit be presented and ruled upon as expeditiously as

possible.... If an applicant has grounds which would justify

the granting of habeas corpus relief, he should present them

for determination with dispatch, rather than doling them out

one-by-one in repeated attempts to obtain relief....

It is obvious [Lowe] is continuing to raise issues which

have been presented and rejected or should have been presented

on appeal and in his prior applications. We find [Lowe's]

contentions have been waived and abandoned by his abuse of the

writ of habeas corpus.

Ex Parte Lowe, Writ No. 18,225-06, Order (May 9, 1990) (citations

omi tted). The court also extended the prohibition to future3

applications challenging the present conviction, absent a showing

of good cause. Id.

The federal magistrate judge, relying upon the fo r egoing

order, determined that Lowe's procedural default in the state

courts precluded federal review absent a showing of cause and

prejudice, which Lowe had not made. The district court adopted the

recommendation of the magistrate judge in its final order.

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 ri ght under the 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 proceedings to

satisfy the requirement that he exhau st 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 is sue he failed to raise on

direct appeal, however, he must use available state colla teral

p rocedures to satisfy the exhaustion requirement. W ade v. Ma yo,4

334 U.S. 672, 677, 68 S.Ct. 1270, 1273, 92 L.Ed. 1647 (1948). Lowe

did not pursue a 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.

Harris v. Reed, 489 U.S. 255, 261 , 109 S.Ct. 1038, 1042, 103

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

"abuse of the writ" doctrine, explicitly relied upon by the state

courts, 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

that petitioner has a bused 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.

The Texas abuse-of-the-w rit doctrine, as set out by the

courts and as applied to Lowe, bars review of issues that were not

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

state habeas petitions. Supreme Court precedent supports the

conclusion that this type of a state proced ural rule can be an

adequate and independent state ground foreclosing fed eral habeas

corpus review.

In Murch v. Mottram, 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 1945

(1972), the Court reviewed a federal district court's denial of a

habeas petition on the ground that the Supreme Court of Maine had

held petitioner's claims to be waived by his failure to raise them

in a prior post-conviction proceeding. Quoting from its teachings

in Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078-

79, 10 L.Ed.2d 148 (1963), the Court stated that "[n]othing 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." 409

U.S. at 45, 93 S.Ct. at 73. The Court concluded that "[t]here can

be no doubt that States may likew ise provide, as Maine has done,

that a prisoner seeking post-conviction relief must assert all

known constitutional claims in a single proceeding." I d. This

court and other circuits also have held state procedural bars to be

adequate and independent state grounds for purpos es of finding

procedural default. See, e.g., Wilcher v. Hargett, 978 F.2d 872,

878 (5th Cir.1992), cert. denied,

--- U.S. ----, 114 S.Ct. 96, 126

L.Ed.2d 63 (1993); B ooker v. Wainwright, 764 F.2d 1371, 1379 (11th

Cir.1985).

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

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

reversed the district court's dis missal of a habeas petition

because the Mississippi courts had not regularly and strictly

asserted a procedural bar to claims not raised on direct appeal.

The Texas courts have a history of regular application of the abuse1 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 of the writ doctrine, 1 excepting only cases in w h ich the issue in

question "could not reaso nably have been raised in previous

applications, and presents important questions of law which should

be resolved." C hoice, 828 S.W.2d at 5 n. 1. This standard

prevents an arbitrary disregard for the bar by a Texas court and

entitles the abuse-of-the-writ doctrine to respect as an

independent and adequate state ground.

A federal court can review a proce durally defaulted habeas

claim if the petitioner can demonstrate b oth cause for his

noncompliance and act ual prejudice resulting therefrom. U nited

States v. Fra dy, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71

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

the ineffectiveness of counsel and plea-voluntariness claims, Lowe

"must shoulder the burden of showing, not merely that the errors at

his trial created a possibility of prejudice, but that they worked

to his actual and sub stantial disadvantage, infecting his entire

trial with error of constitutional dimensions." I d. at 170, 102

S.Ct. at 1596. We need not reach the question of prejudice, as we

agree with the magistrate judge and the district court that Lowe

has made no showing of cause for his failure to assert the relevant

claims in his earlier state habeas corpus petitions.

AFFIRMED.