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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
__________________________________________
No. 97-41120
_________________________________________
ROYAL LEE HORSLEY,
Petitioner-Appellee,
v.
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION

Respondant-Appellant.
__________________________________________
Appeals from the United States District Court
for the Eastern District of Texas
__________________________________________
November 22, 1999
Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
The Director of the Texas Department of Criminal Justice, Institutional Division, requests
that Royal Lee Horsley's habeas corpus petition be dismissed with prejudice for abuse of the writ.
We find that Horsley's successive habeas petition was an abuse of the writ and that the district
court thereby abused its discretion in dismissing Horsley's habeas corpus petition without
prejudice. The petition is hereby dismissed with prejudice.

I. BACKGROUND
Petitioner - Appellee Royal Lee Horsley (Horsley), was convicted on July 15, 1993 of four
counts of the felony offense of delivery of a controlled substance and sentenced to 31 years in
prison. Horsley did not directly appeal his conviction, but had two applications for a writ of
habeas corpus denied by the Texas Court of Criminal Appeals. The second was denied pursuant
to the abuse of writ doctrine of the Texas Code of Criminal Procedure Article 11.07, Section 4
(Section 4).
Horsley filed the petition at issue in this case on February 20, 1997. This petition
contained some claims which had previously been denied by the Texas Court of Criminal Appeals
and the following four new claims which Horsley had not presented to that court: (1) ineffective
assistance of counsel by relying only on the prosecutor's evidence and failing to make an
independent investigation of the case; (2) ineffective assistance of counsel by failing to object to
the petitioner's conviction on the grounds of insufficient evidence; (3) ineffective assistance of
counsel in that counsel did not have adequate time to prepare for trial; and (4) the trial court erred
by refusing to grant him in forma pauperis status on appeal.
Respondent - Appellant Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division (the Director) filed an answer arguing that Horsley had procedurally
defaulted on his unexhausted claims by failing to present them to the Texas Court of Criminal
Appeals in his first writ application. The Director waived the exhaustion requirement and argued
that the district court was barred from considering Horsley's unexhausted claims on federal
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habeas review under the federal procedural default doctrine. The Director requested that the
district court dismiss Horsley's entire petition with prejudice.
The district court dismissed, without prejudice, Horsley's entire petition for failure to
exhaust state court remedies1. The Director appeals the dismissal of Horsley's petition without
prejudice.
II. DISCUSSION
This case raises the issue whether a district court abuses its discretion by dismissing a non-
exhausted habeas corpus claim without prejudice where: (1) the failure to exhaust petitioner's
new claims in prior petitions constitutes a state procedural bar against subsequent application,
and (2) nothing suggests that the state court would apply an exception to the abuse-of-the-writ
doctrine to address petitioner's claims on the merits. This court "review[s] the district court's
factual findings for clear error, but review[s] issues of law de novo." Dyer v. Johnson, 108 F.3d
607, 609 (5th Cir. 1997) (citation omitted). Moreover, courts are expected "to exercise
discretion in each case to decide whether the administration of justice would be better served by
insisting on exhaustion or by reaching the merits of the petition forthwith." Granberry v. Greer,
481 U.S. 129, 131 (1987). Thus, this court will review the district court's dismissal of Horsley's
petition without prejudice for abuse of discretion.
We find that the district court did abuse its discretion. We hereby dismiss Horsley's
successive petition with prejudice because that petition was an abuse of the writ. The abuse of
1 The dismissal occurred over multiple proceedings. First the district court adopted the
Report and Recommendation of a magistrate judge, dismissing Horsley's petition without
prejudice. In subsequent proceedings, the district court adopted the magistrate judge's
recommendation that the Director's motion to alter the judgment be denied.
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the writ doctrine of Section 4 prohibits consideration of a subsequent application for a writ of
habeas corpus unless the application contains specific facts establishing that (1) the current claims
have not or could not have been presented in the previous application, or (2) by a preponderance
of the evidence, but for a violation of the United States Constitution, no rational juror could have
found the applicant guilty beyond a rational doubt.
However, it is clear that Horsley's petition is an abuse of the writ and nothing suggests
that the Texas Court of Criminal Claims would consider Horsley's petition on the merits. That
court has already denied Horsley's second petition for abuse of the writ and there is no reason to
think his third writ will be treated any differently. Horsley failed to argue cause for his failure to
present his new claims within his original petition and makes no showing of actual innocence. The
district court cites no factual basis or previous Texas Court of Criminal Appeals decisions through
which Horsley could argue that his successive petition is not barred. Thus, there is no evidence of
the kind of "unusual and compelling circumstances" absolving petitioner of blame for the delay in
bringing his successive claims. See Ex Parte Barber, 879 S.W.2d 889 (Tex.Crim.App.1994)
(finding such unusual circumstances where the Court of Criminal Appeals had authority to
consider the original writ but elected to consider the direct appeal first). Indeed, Horsley's failure
to argue cause or innocence would doom his third petition given that the abuse-of-the-writ
doctrine is applied strictly and consistently. See Barber at 891 (announcing that the abuse-of-the-
writ doctrine will be strictly applied).
When seen in the light of the discussion thus far, the district court's explanation of why it
dismissed Horsley's claims without prejudice is not firmly based in fact or law. The district court
held that the administration of justice would be better served if Horsley were allowed to present
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his unexhausted claims to the Texas Court of Criminal appeals and argue that an exception to the
abuse-or-the-writ doctrine is applicable. In reaching this conclusion the district court held that:
(1) a district court "should not speculate as to whether the Court of Criminal Appeals will hold
that an exception is applicable," but should give the state court the chance to apply state law, and
(2) holding otherwise is contrary to the "federal mandate that all grounds of relief should be
exhausted before being considered by federal courts and likewise contrary to the state mandate
that prisoners should be provided an opportunity to present an exception to the abuse of the writ
doctrine."
In an attempt to find support for this holding, the district court noted that it had discretion
to decide "whether the administration of justice would be better served by insisting on exhaustion
or by reaching the merits of the petition forthwith." Granberry, 481 U.S. at 131. However, the
district court failed to note that comity and judicial economy make it appropriate to insist on
complete exhaustion where "unresolved questions of fact or of state law might have an important
bearing . . . ." Granberry, 481 U.S. at 134. For the reasons we have already discussed, there are
no unresolved questions of fact or state law in Horsley's case. It is clear that the writ was abused
and that the state court would accordingly refuse to consider Horsley's petition. Thus, there is no
reason to insist on complete exhaustion.
The district court's reasoning is also contrary to the law of this Circuit. A claim may be
procedurally barred even though that claim has not been reviewed by the state court. Horsley's
claim is precluded because he failed to exhaust his state court remedies and the state court to
which he would be required to present his unexhausted claims would now find those claims to be
procedurally barred. In Emery v. Johnson, 139 F.3d 191, 194-96 (5th Cir. 1997), we reviewed a
5

final order by a federal district court denying a habeas petition in a capital murder case. We held
that the claims at issue were procedurally barred because if the petitioner tried to exhaust them in
state court they would be barred by the abuse-of-the-writ doctrine of Article 11.071 of the Texas
Code of Criminal Procedure. Id. See also Nobles v. Johnson, 127 F.3d 409, 423 (5th Circuit
1997) (in accord). We further noted that Section 4, the provision at issue here, adopts the same
rule for non-capital felony cases2. Emery, 139 F.3d at 195 n.3. Thus, speculating as to whether
the Texas court will consider a petition procedurally barred is not contrary to the federal mandate
in favor of exhaustion. Moreover, a claim is exhausted if "it is clear that [petitioner's] claims are
now procedurally barred under [state] law." Gray v. Netherland, 518 U.S. 152, 161 (1991). See
also Coleman v. Thompson, 501 U.S. 722, 735 (1991); Nobles, 127 F.3d at 420.
Thus it was an abuse of discretion to dismiss Horsley's petition without prejudice when his
successive writ would be barred by the Texas court under the abuse-of-the-writ doctrine.
Accordingly, we dismiss Horsley's successive petition with prejudice.
III. CONCLUSION
For the reasons discussed above, the district court is REVERSED and Horsley's
successive habeas corpus petition is dismissed with prejudice.
2 Horsley argues that these cases are not on point because they address the abuse of the
writ doctrine as it applies to capital cases whereas his case is non-capital. He notes that capital
cases provide additional procedures such as sua sponte appointment of counsel to investigate the
possibility of collateral review. He makes no explicit argument as to why this distinction makes a
difference. Presumably, his point is that a Texas court would consider whether the absence of
these procedures helps excuse his failure to bring all of his claims in one writ. However, this
argument fails given that (1) Horsley has still failed to make any cause or innocence argument that
would involve an exception to the abuse-of-the-writ doctrine; (2) capital and non-capital cases are
subject to the same abuse of the writ standard, see Emery at 195 n.3.; and (3) Horsley can point
to no case which even suggests that the capital/non-capital distinction will make a difference.
6