IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-20826

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JEFF EMERY,

Petitioner-Appellant,

VERSUS

GARY JOHNSON,

Director, Texas Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Texas

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April 15, 1998

ON PETITION FOR REHEARING

(Opinion September 10, 1997, 5th Cir. 1997, ____F.3d_____)

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:

On petition for rehearing, Emery urges us to reconsider our

determination that the claims that he did not present in his first

state habeas application are procedurally barred by Texas’s commonlaw abuse-of-the-writ doctrine. In support of his contention that

the common-law doctrine does not procedurally bar federal review of

these claims, Emery offers a single published case, Ex Parte

Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996), cert. denied, 117 S.
 

* Emery cites the following cases: Ex Parte Banks, Writ

No. 13,568-03 (Tex. Crim. App. Jan. 10, 1996); Ex Parte Gibbs,

Writ No. 23,624-02 (Tex. Crim. App. July 15, 1995); Ex Parte

Burdine, Writ No. 16,725-06 (Tex. Crim. App. Apr. 6, 1995); Ex

Parte Goodwin, Writ No. 25,290-02 (Tex. Crim. App. Jan. 27,

1995); Ex Parte Mata, Writ No. 8,937-02 (Tex. Crim. App. Jan. 27,

1995); Ex Parte Marquez, Writ No. 17,898-03 (Tex. Crim. App. Jan.

13, 1995). In all of these cases, the Texas Court of Criminal

Appeals summarily denied relief. We assume without deciding that

such summary disposition constituted a resolution of the cases

solely on the merits.

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Ct. 2517 (1997), in which the Texas Court of Criminal Appeals

(TCCA) addressed the merits of a successive habeas application, and

a number of unpublished decisions of the TCCA in which he contends

that the court addressed a habeas petitioner’s claims on the merits

even though the claims were presented for the first time in a

successive habeas application.* We conclude that these cases do

not undermine our determination that Texas’s common-law abuse-ofthe-writ doctrine constitutes a state ground adequate to bar

federal review of the claims that Emery did not present in his

first state habeas petition.

We note as an initial matter that Emery contends in his

petition for rehearing that, in evaluating the adequacy of a state

procedural rule, “the proper point in time for determining whether

a procedural rule was firmly established and regularly followed is

‘the time of [the] purported procedural default.’” (quoting Fields

v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (internal quotation

marks omitted), petition for cert. filed, 66 U.S.L.W. 3531 (U.S.

Jan. 27, 1998) (No. 97-1262)). We also note that Emery bears the

burden of proving that Texas did not apply the doctrine with

sufficient strictness and regularity during the relevant time
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period. See Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997),

cert. denied, 118 S. Ct. 1091 (1998); Martin v. Maxey, 98 F.3d 844,

847 (5th Cir. 1996). Assuming arguendo that Emery's view of the

law is correct, we conclude, for the reasons set forth below, that

Texas strictly and regularly applied its common-law abuse-of-thewrit doctrine at the time of Emery’s procedural default, that is,

at the time that he failed to include all of the claims for which

he seeks federal review in his first state habeas application.

In Fearance v. Scott, 56 F.3d 633 (5th Cir. 1995), a panel of

this court acknowledged that, in the past, Texas courts had not

applied the common-law abuse-of-the-writ doctrine with sufficient

strictness and regularity to render the doctrine an adequate ground

for barring later federal habeas review of a constitutional claim.

See id. at 642 (citing Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.

1995)). However, the panel held that, as of the TCCA’s decision in

Ex Parte Barber, 879 S.W.2d 889 (Tex. Crim. App. 1994), the commonlaw abuse-of-the-writ doctrine was applied with sufficient

strictness and regularity to render the doctrine an adequate state

ground. Fearance, 56 F.3d at 642. Fearance thus stands for the

proposition that, at least with respect to the time period between

February 23, 1994, the date that the TCCA decided Barber, until

June 18, 1995, the date that this court decided Fearance, Texas

applied its common-law abuse-of-the-writ doctrine with sufficient

strictness and regularity to render it an adequate state ground.

We are bound to accept this conclusion. See Narvaiz v. Johnson,

134 F.3d 688, 694 (5th Cir. 1998) (“It is more than
 

** Additionally, because the Gibbs opinion merely consists

of a one-page order summarily denying relief, it is unclear

whether that case even involved claims similar to the ones that

Emery seeks to have us review. “Because [Emery] has not

demonstrated that the TCCA [did] not strictly or regularly apply

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well-established that, in this circuit, one panel may not overrule

the decision, right or wrong, of a prior panel in the absence of en

banc reconsideration or superseding decision of the Supreme Court.”

(internal quotation marks and brackets omitted)).

Emery filed his first state habeas application on July 5,

1995, and the TCCA denied relief on August 1, 1995. In his

petition for rehearing, Emery cites no cases decided between the

date that this court decided Fearance and the date that he filed

his first habeas application in which the TCCA addresses the merits

of an abusive application. He cites only one such case--Ex Parte

Gibbs, Writ No. 23,624-02 (Tex. Crim. App. July 15, 1995)--decided

between the date we decided Fearance and the date that the TCCA

denied relief on his first habeas application. Even if we assume

that, up until the date that the TCCA denied relief on his first

habeas petition, Emery could have amended his application so as to

present the claims for which he now seeks federal review, thereby

avoiding a procedural default, Emery has not demonstrated that

Texas failed to apply its common-law abuse-of-the-writ doctrine

with sufficient strictness and regularity to render it an adequate

state ground as of the time of Emery’s procedural default. We have

held that “an occasional act of grace by a state court in excusing

or disregarding a state procedural rule does not render the rule

inadequate.” Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995).**
the [abuse-of-the-writ doctrine] to claims identical or similar

to his . . . claim[s], we are convinced that the rule is an

adequate state-law ground,” at least with respect to the time

period to which Emery urges us to look in evaluating the

strictness and regularity of the rule’s application. Amos, 61

F.3d at 340-41.

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As such, Emery’s presentation of a single case decided between the

date of Fearance and the date the TCCA denied relief on his first

habeas application cannot establish the inadequacy of Texas’s

common-law abuse-of-the-writ doctrine during the time period that

Emery contends is germane to the determination of whether federal

review of his claims is barred by an adequate and independent state

ground. Accordingly, we DENY Emery’s petition for rehearing.