Samuel Christopher Hawkins v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent

We remanded this case to the district court in a written opinion filed on the evening of December 10, 1988, 862 F.2d 482. The district court, on remand, filed on December 12, 1988 its order vacating the stay of execution, denying Hawkins’ requested habeas relief, and refusing a certificate of probable cause. Hawkins’ counsel now asks this court to stay his execution and to issue a certificate of probable cause.

On remand, the district court concluded that each of Hawkins’ claims are foreclosed for the reason that they have either been previously fairly decided or should have been asserted in an earlier petition for a writ of habeas corpus. After deciding a threshold issue, we will turn to each of the claims, seriatim.

I

1.

The state had argued that this court lacks jurisdiction because Cliff Harrison, the lawyer signing the petition, lacked authority to represent Hawkins. That argument has been withdrawn, and Harrison has stated that he held a power-of-attorney evidencing his authority to represent Hawkins.

2.

Hawkins makes two arguments relating to his competence. He first argues that the state denied him due process by subjecting him to trial without determining his competence. Hawkins’ counsel also asserts that Hawkins is presently incompetent. Hawkins’ argument rests on the assertion that Hawkins was not competent to request the Texas Court of Criminal Appeals to dispense with a competency hearing. We are pointed to no evidence suggesting that Hawkins was in fact incompetent at that time. The only evidence of record points in the opposite direction. Within months of withdrawal by the Texas Court of Criminal Appeals of its initial opinion, Hawkins was examined in a federal hospital in Springfield and found to be competent to represent himself in a hearing in federal court. This argument is without merit.

The state sentencing judge, at its hearing on November 3, 1988 explicitly found that Hawkins was competent. He observed his demeanor and noted, as do we, that his statement made at the time of sentencing was lucid and demonstrated a full appreciation of his present circumstance. We, of course, accept this finding of fact because fairly supported by the record. 28 U.S.C. § 2254(d). The claim of present incompetency is without merit.

II

Our procedure for the handling of death penalty cases requires that a petition to stay the enforcement of a state court judgment state whether or not the same plaintiff has previously sought relief arising out of the same matter from the same or from any other federal court. These rules explicitly state, and therefore put the habeas petitioner on notice, that a second or successive habeas petition may be dismissed if it fails to allege new or different grounds for relief or if the failure to assert those grounds in a prior petition constitutes an abuse of the writ. The rules further provide that, in any event, the district court should expedite consideration of any second or successive petition.

The Supreme Court has vacated the grant of a stay for abuse of the writ where the “application for a stay of execution and a new petition for habeas corpus relief [were] filed with no explanation as to why the claims were not raised earlier or why they were not all raised in one petition.” Woodard v. Hutchins, 464 U.S. 377, 377-78, 104 S.Ct. 752, 753, 78 L.Ed.2d 541 (1984). This indicates that, in cases involving a stay of execution, the district court is not required to comply with the usual procedures of notice and opportunity to respond. A habeas petitioner is thus expected to submit a “Rule 9(b) response” at the time he files a second or successive federal habeas petition. If, thereafter, an eviden-tiary hearing is required, such hearing can be expedited. See, e.g., Brogdon v. Butler, 824 F.2d 338, 340 (5th Cir.1987).

In reviewing the grant of a stay by the district court which is appealed by the state on grounds of writ abuse, the court must consider petitioner’s “likelihood of avoiding the state’s charge of writ abuse.” Selvage v. Lynaugh, 842 F.2d 89 (5th Cir.1988), stay granted, — U.S.-, 108 S.Ct. 1283, 99 L.Ed.2d 494 (1988). We consider this issue as necessary in connection with particular claims raised by Hawkins.

We now turn to those particular claims. First, Hawkins’ attack on the vol-untariness of his confession has been earlier decided by state and federal courts, and we are pointed to no reason to reach a different result. This claim is without merit.

As we pointed out in our order of December 10, Hawkins’ “Franklin-Penry” attacks are foreclosed by the state’s proper invocation of its contemporaneous objection rule. Selvage v. Lynaugh, 823 F.2d 845 (5th Cir.1987). See also Adams v. State, 577 S.W.2d 717, 729 (Tex.Ct.Crim.App.) (en banc 1979) (considering a Franklin-Penry claim made long before those cases reached the Supreme Court).

The only remaining issue then is whether Hawkins’ present claims that his trial counsel was ineffective in not preserving his Franklin-Penry arguments are foreclosed because they should have been made in his earlier federal habeas petition.

We first consider the writ abuse problem described above. We are persuaded that responsible jurists may differ over the issue of whether Hawkins’ present claim of ineffective assistance of counsel is barred by the doctrine for writ abuse. Had Hawkins been represented by counsel at all times during the collateral attack, the state’s argument would seem compelling. Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc). On the other hand, if Hawkins had at all times proceeded pro se in his collateral attack, Hawkins’ argument that he should not be barred is strong. Passman v. Blackburn, 797 F.2d 1335 (5th Cir.1986). Here Hawkins expressly waived counsel. We have not decided whether the Jones or the Passman rule controls such circumstance. We, therefore, are not persuaded that the district court’s denial of a stay and certificate of probable cause ought to be affirmed on the basis of writ abuse.

But, of course, the matter does not end here. Whether Hawkins is entitled to a stay and a certificate of probable cause rests upon the likelihood of his success upon his Franklin-Penry claims. For somewhat different reasons, each of us is persuaded that Hawkins’ application for stay and certificate of probable cause on this issue must be denied.