Charles JONES, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee, 722 F.2d 159

PATRICK E. HIGGINBOTHAM, Circuit Judge: Today we strike at two uncertainties often present when a prisoner seeks to avoid dismissal of his claim made for the first time in a successive petition for writ of habeas corpus. We decide that in the prosecution of a federal habeas petition a petitioner is bound by the knowledge chargeable to his competent habeas counsel. We decide that the sole fact that the new claims were not exhausted when the earlier federal writ was prosecuted will not automatically excuse their omission.

I Charles Jones is now serving a life sentence in the Texas state prison following his conviction in 1968 of attempted burglary enhanced by two prior convictions. On direct appeal Jones did not attack his conviction for attempted burglary but attacked one of the two prior enhancing convictions, urging that the indictment in that case did not state an offense and that the state’s proof by prison records rather than by a certified copy of the judgment was insufficient. That attack was rejected. Jones v. State, 449 S.W.2d 277 (Tex.Cr.App.1970).

In the next thirteen years Jones filed six pro se applications for a writ of habeas corpus in the state courts. This, Jones’s third federal petition, asserts fifteen grounds for relief. Seven grounds are “new” and eight have been considered in previous applications. The district court dismissed Jones’s petition, pursuant to Rule 9(

b) of the rules governing habeas corpus, as an abuse of the writ, finding the eight grounds that had been considered in Jones’s prior petitions ought not be considered again, and the seven new claims would not be considered because Jones’s failure to raise them in his prior petitions was inexcusable. Jones appealed and in an unpublished opinion we remanded for an evidentiary hearing. At the ordered evidentiary hearing, only Jones testified. He explained that he learned of his new claims from fellow inmates after his second federal petition.

The district court found that Jones had the knowledge and opportunity to present the newly asserted claims in his second federal habeas petition. The district court also found significant the fact that Jones had been represented by appointed counsel in his second federal habeas application and had ample opportunity to discuss with counsel all possible^ grounds for relief. Concluding that Jones’s failure to raise the newly asserted claims in his prior petition was not excusable, the district court again dismissed the petition for writ abuse.

Jones appealed, urging that the only evidence before the district court was his testimony that he had been unaware of the new grounds for relief until after his second federal petition was denied. A panel of this court held that writ abuse had not been clearly established by the evidence before the district court, and reversed the dismissal of Jones’s petition. Jones v. Estelle, 699 F.2d 793 (5th Cir.1983). Rehearing en banc was granted. 711 F.2d 35 (5th Cir.1983). We are not persuaded that the district court abused its discretion and now affirm dismissal of Jones’s third federal habeas petition.

II New claims in a successive habeas petition must be dismissed if omitting them from a prior petition is an abuse of the writ. 28 U.S.C. foil. § 2254, Rule 9(b). As the advisory committee notes to Rule 9(

b) affirm, “[t]his subdivision is aimed at screening out the abusive petitions from this large volume, so that the more meritorious petitions can get quicker and fuller consideration.” Adopted in 1976, Rule 9(

b) largely codifies the principles enunciated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Specifically, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of- being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground....

Nothing 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. Id. at 18, 83 S.Ct. at 1078. Sanders relied on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to indicate the limits of the writ abuse doctrine.

Fay had established that, because habeas corpus is governed by equitable principles, “a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.” 372 U.S. at 438, 83 S.Ct. at 849. Though Fay involved exhaustion of state remedies, its analysis is equally applicable to successive writs. According to Fay, a petitioner loses the right to have a claim considered on a successive petition if he “understanding^ and knowingly forewent the privilege,” 372 U.S. at 439, 83 S.Ct. at 849, of raising that claim in his initial petition.

The bar “depends on the considered choice of the petitioner.” Id. But note that the inquiry is not whether the petitioner intended to give up his right to have a claim heard at all. It is whether he withheld it without legal excuse when he filed his earlier petition. The outer limits of the abuse doctrine are easily stated. A petitioner may in a successive petition assert a new claim based on facts or legal theories about which he had no knowledge when prosecuting his prior habeas petition. Haley v. Estelle, 632 F.2d 1273, 1275 (5th Cir.1980).

At the opposite end of the spectrum are cases where petitioners are aware of a ground to support a writ but deliberately withhold it and assert it in a later petition. The withheld claim is undoubtedly barred. See Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924). The more difficult cases fall between the two extremes into an area where awareness of right and purpose are matters of inference. It is not surprising that many successive habeas petitions fall into this category, for often the very fact that the petition is successive engenders suspicion of writ abuse.

Indeed the Supreme Court has recently counseled wariness of successive petitions. Barefoot v. Estelle, - U.S. -, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Nor is it surprising that procedural rules have flourished in this policy tensioned environment. We pause to describe their prominent features. The Supreme Court held in Sanders that abuse of the writ must be specifically pleaded by the government, 373 U.S. at 17, 83 S.Ct. at 1078, while explicitly declining to place on the petitioner the burden of pleading absence of abuse. See Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948).

Rather, “if the Government chooses ... to claim that the prisoner has abused the writ of habeas corpus, it rests with the Government to make that claim with clarity and particularity.” Id. The government meets its burden of pleading if it notes petitioner’s prior writ history, indicates the claims appearing for the first time in the successive petition, and affirms its belief that petitioner is abusing the writ in a manner proscribed by Rule 9(b).

In asserting writ abuse the government is by necessity asserting that it is aware of no newly disclosed facts or changes in the law that would justify the filing of a successive petition. Finally, despite the pleading requirements placed on the parties, abuse may be raised sua sponte by the district court. See Sockwell v. Maggio, 709 F.2d 341 (5th Cir.1983).

Once the government has met its burden of pleading writ abuse, or once the issue has been raised by the district court sua sponte, the petitioner “has the burden of answering that allegation and of proving ... by a preponderance of the evidence ... that he has not abused the writ.” Price v. Johnston, 334 U.S. at 292, 68 S.Ct. at 1063 (emphasis added). Petitioner’s opportunity to carry that burden will not include an evidentiary hearing if the district court determines as a matter of law that petitioner has no chance of justifying the successive petition. Vaughan v. Estelle, 671 F.2d 152 (5th Cir.1982); Johnson v.

Copinger, 420 F.2d 395 (4th Cir.1969). At any evidentiary hearing the district court should determine whether the failure to raise the new claims in the prior petition was excusable. These procedural rules reflect the effort to adjust the tension between the need to consider all nonfrivolous claims and the need to prevent manipulation and obstruction of judicial proceedings by successive petitions.

The objective is to preserve the proper use of the writ of habeas corpus to win review of unlawful state action, while recognizing that “[t]he advancing of grounds for habeas relief in a one-at-a-time fashion when the evidence is available which would allow all grounds to be heard and disposed of in one proceeding, is an intolerable abuse of the Great Writ.” Fulford v. Smith, 432 F.2d 1225 (5th Cir.1970). This policy implementation can be expressed in the language of traditional equity precepts. The petitioner who fails to carry his burden of proof at the 9(

b) hearing will suffer dismissal of his petition because he has failed to demonstrate the good faith required of one who seeks a remedy governed by equitable principles. As the advisory committee notes to Rule 9(

b) state, “[subdivision [9](

b) is consistent with the important and well established purpose of habeas corpus. It does not eliminate a remedy to which the petitioner is rightfully entitled.” Finally, we note that the primary responsibility for deciding whether a petitioner has abused the writ is with the district court. The principles governing . .. denial of a hearing oh a successive application are addressed to the sound discretion of the federal trial judges.

Theirs is the major responsibility for the just and sound administration' of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power—and, if the ends of justice demand, the duty—to reach the merits. Sanders, 373 U.S. at 18-19, 83 S.Ct. at 1079.

These general principles boil down to the idea that a petitioner can excuse his omission of a claim from an earlier writ if he proves he did not know of the “new” claims when the earlier writ was filed. The inquiry is easily answered when the claim has been made possible by a change in the law since the last writ or a development in facts which was not reasonably knowable before. It is more difficult when we review the efforts of a pro se petitioner to meet his burden of proving excusable neglect. That difficulty surfaces in pro se cases as a greater tolerance for prisoner compliance with these described rules.

Such solicitude is not justifiable here because Jones had competent counsel. Ill Criminal defendants daily entrust their liberty to the skill of their lawyers. The consequences of the lawyer’s decisions fall squarely upon the defendant. There is nothing untoward in this circumstance. To the contrary, the lawyer as the defendant’s representative is at the core of our adversary process. Whether to call a particular witness, object to evidence, offer additional evidence or rest, or indeed advance a particular defense at all often has immediate and grave impact upon the liberty or even the life of a defendant.

So long as the lawyer was competent, the representative character of the relationship between a lawyer and his client will tolerate no other result. In this sense we have consistently held defendants to the decisions of their lawyers. See Jones v. Barnes, - U.S. -, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). We have carved out certain rights as so basic or “personal” that we do not accept the agency role of the lawyer. We have protected those rights by procedures calculated to insure that any waiver be made by the defendant personally rather than by his lawyer.

These rights in the main appear where the defendant relinquishes the protections of the adversary system and his lawyer’s role in that system. For example, we have declined to rest on statements of the lawyer in assuring that a plea of guilty be voluntary. That reluctance finds example in the requirement that a judge address the defendant personally at certain critical times such as in deciding whether to accept a plea of guilty or in insuring that an indigent defendant understand his right to a direct appeal without expense. See Martin v. Texas, 694 F.2d 423, 425 n. 2 (5th Cir.1982).

Such circumstances aside, the rights of a criminal defendant are generally insured in the first instance by the constitutionally secured right to a competent lawyer. We have not found a constitutional right to counsel in collateral attacks on a conviction nor found that the “right” to collaterally attack a conviction is such that the omission of a particular claim or theory waives a safeguard so fundamental as to require a personal decision to waive measured by Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Moreover, we find no indication that Congress in enacting Rule 9(

b) meant to limit its scope to bar only those claims that had been deliberately and knowingly withheld by the petitioner himself, making no allowance for the agency role of the petitioner’s competent counsel. To the contrary, Congress made plain its intent to stem the flood of successive petitions which overtax the judicial system and imperil the full and fair consideration of meritorious writ petitions filed by first-time applicants. Only in very rare cases will it appear that a petitioner represented by counsel made a personal determination to withhold a habe-as claim. If 9(

b) were read to bar only these petitioners, the congressional purpose would be stymied. In choosing between two plausible readings of a statute, we will adopt that which more faithfully effectuates the legislative intent while infringing on no recognized individual right. Having recognized the representative role of counsel when their participation is constitutionally secured, it would be anomalous indeed to deny that role for competent counsel when their participation is not so required as in habeas proceedings. Moreover, much of our habeas jurisprudence is bottomed on the representative role of counsel.

In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court confronted the failure of counsel to advance a legal theory in the face of a contemporaneous objection requirement of the state. The Engle court explained: We have long recognized, however, that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.

Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality so counsel against labeling alleged awareness of the objection as cause for a procedural default. Id. at 134, 102 S.Ct. at 1574-75. Given this elemental role of counsel in our adversary system, we think it inevitable that the inquiry into excuse for omitting a- claim from an earlier writ will differ depending upon whether petitioner was represented by counsel in the earlier writ prosecution.

Representation by competent counsel has an immediate impact upon the quality of proof necessary to prove an excuse for omitting a prior claim. With counsel the inquiry is not solely the awareness of a petitioner, a laypan, but must include that of his competent counsel. When a petitioner was represented by competent counsel in a fully prosecuted writ he cannot by testimony of personal ignorance justify the omission of claims when awareness of those claims is chargeable to his competent counsel.

Counsel competence in habeas proceedings is not a constitutional inquiry, since a state has no constitutional duty to provide counsel in collateral proceedings. Instead the question is whether such incompetence excuses the failure to include the new claim in the old petition. Even a successive petition seeking to litigate a claim a second time can be considered to prevent an injustice. Equally, incompetence of habeas counsel when it explains an omission or flawed submission can excuse what otherwise would amount to an abuse of the writ.

It does not follow that incompetence of counsel is necessarily established by omission of a claim. The test of competent counsel, as we have repeatedly held, is “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” The determination of whether a counsel rendered reasonably effective assistance turns in each case on the totality of facts in the entire record.

Thus, we must consider a counsel’s performance in light of “the number, nature, and seriousness of the charges ... the strength of the prosecution’s ease and the strength and complexity of the defendant’s possible defenses.” Gray v. Lucas, 677 F.2d 1086, 1092 (5th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983) (citations omitted). See also Lumpkin v. Ricketts, 551 F.2d 680 (5th Cir.), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). The standard for measuring competence of counsel, while developed in the context of constitutional right, is a familiar one.

We are persuaded that this standard vindicates the competing values of facilitating judicial review of meritorious claims and finality of criminal convictions in habe-as cases. Moreover, drawing upon the relatively well developed principles of counsel competence brings greater predictability and stability to this jurisprudence. In sum, we see no principled reason for not applying to habeas counsel the same measure of their competence that we apply when the Constitution requires the lawyer’s work. IV Jones has not urged that Rule 9(

b) is here inapplicable because he had not exhausted his state court remedies as to the two claims he now pursues. Given that not facing this question would add to an already uncertain jurisprudence where certainty is at a premium and the cases are great in number, and would only trigger a writ attacking the effectiveness of Jones’s present counsel, our duty of superintendence requires that we sua sponte address this issue. We conclude that the sole fact that the new claims were unexhausted when the earlier federal writ was prosecuted will not excuse their omission. In Paprskar v.

Estelle, 612 F.2d 1003 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980) we applied Galtieri v. Wainwright, 582 F.2d 348 (5th Cir.1978), in finding a petitioner excused from abuse when his omitted claims had not been exhausted in the state court at the time he was prosecuting his earlier federal petition. We do not read Paprskar as engrafting on the equitable concepts of writ abuse a fixed rule that 9(

b) applies only to omitted exhausted claims. There is no suggestion that Paprskar was chargeable with knowledge of his omitted claims at the time of his first writ. Indeed the refusal to find writ abuse in Paprskar is largely explained by the equitable tug of his fruitlessly urging counsel to raise an ineffective assistance of counsel argument. But more to the point, neither Paprskar nor Galtieri faced the question of a petitioner who is chargeable with abuse and whose only excuse is a failure to have exhausted the omitted claims, a failure equally unexplainable.

We do not ascribe to those cases a consequence antithetical to our consistent interdiction of piecemeal petitions. Underlying Galtieri and Paprskar was a greater willingness to tolerate unexhausted claims than the Supreme Court in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), later made plain was allowable. Galtieri allowed appellate disposition of mixed petitions and Paprskar dwelled upon the absence of connection between the exhausted and non-exhausted claims.

Lundy made plain that assertion of the unexhausted claims necessitates dismissal of the mixed petition and that dismissal of a mixed petition does not create a hurdle of writ abuse on petitioner’s return. Whatever doubt of that result there was when Galtieri and Paprskar were decided was ended by Lundy. The Lundy court’s call for the dismissal of mixed petitions would have little meaning if it could be avoided by withholding unexhausted claims, or deleting them by an amended petition.

Justice O’Connor’s plurality opinion noted that its rule of dismissal, calculated to accommodate concerns for federalism and finality of conviction with access for state prisoners to the federal courts, required the doctrine of writ abuse for its enforcement. If a petitioner is aware of claims not included in his federal petition his persistence in prosecuting his federal writ while holding back his unexhausted claims dis-serves our strong policy against piecemeal-ing claims. Critically, nothing requires that we permit such multiple petitions.

A petitioner who has both exhausted and unexhausted claims faces no ultimate barrier to the federal prosecution of all his claims. He can obtain dismissal of his federal writ, completely exhaust his claims, and, if unsuccessful, return to federal court. Recognition of an automatic excuse from writ abuse for unexhausted claims would perforce be bottomed on recognition of a prisoner’s right to persist in prosecution of his exhausted claims while holding back the unexhausted claims. We do not recognize such an unqualified “right” to slice one’s claims and present them in successive filings.

Nor can Sanders fairly be read to limit writ abuse to successive writs filed with a vexatious purpose. Sanders’ prohibition of vexatious petitions is disjunctive to its prohibition of unnecessary piecemealing. Regardless of the petitioner’s subjective purpose, the dilution of the Great Writ worked by the addition of a petition which. by definition need never have been filed is vexatious. This is true unless we confine the doctrine of writ abuse to those petitioners whose subjective purpose is only to goad the system and not to obtain release. Such a system would be a luxury and not a necessity.

Critically, it is not affordable because the price is the genuine efficacy of the Great Writ. We hold only that a petitioner who has persisted in the prosecution of a federal writ while aware of additional but then unexhausted claims faces the hurdle of disproving abuse when in a successive petition he presents the omitted claims.

While a petitioner may have an excuse for the omission, such as newly found facts or changes in the law, that the omitted claim was' not then exhausted is alone not enough To hold otherwise would be to hold that a-petitioner may present his claims one by one to federal court by exhausting them one by one m the courts of the state. V In his second federal habeas application Jones was represented by appointed counsel whose competence he has not questioned.

Jones does not claim that since his second habeas petition new law changed the legal significance of facts he earlier knew, Nor does he claim that he has recently learned facts about his conviction which were not previously known to him and which he could not have learned through the exercise of diligence.

He testified at the evidentiary hearing before the district court that he did not learn of the legal basis for his new claims until after his second federal Petition- But with counsel whose competence he does not question that proof ls not enou»^ because Jones is chargeable with that awareness that a competent law-^er woldd bave possessed. VI Jones has advanced no tenable excuse for omitting the «w claims from his second federal habeas petition. The district court’s conclusion that Jones had not carried his burden of showing that he did not abuse the writ was not an abuse of discretion. AFFIRMED.

APPENDIX Jones’s writ history can best be seen when graphically depicted. Date and Court Counsel Disposition 1/7/71; state convicting - pro se denied; application to Ct. Crim. court App. denied 10/6/71 3/24/72; U.S. Dist. Ct. pro se ' denied; cert, of probable cause CA72-H-82 denied by 5th Cir. 7/31/72 (72-8027) 7/16/73; state convict- pro se denied; application to Ct. Crim. ing court App. denied 9/7/73 7/17/74; state convict- pro se • denied; application to Ct. Crim. ing court App. denied 9/18/74 Date and Court Counsel Disposition denied; aff’d per curiam by 5th Cir. 8/25/77 (77-1290) 12/17/76; U.S. Dist. Ct.

CA74-H-1554 Mike DeGeurm, federal public defender service appointed 5/5/75 denied; application to Ct. Crim. App. denied 3/29/78 3/14/78; state convicting court pro se denied; application to Ct. Crim. App. denied 7/19/78 6/27/78; state convicting court pro se denied, and petitioner cited for writ abuse; application to Ct. Crim. App. denied and petitioner cited for writ abuse by that court 4/25/79 4/2/79; state convicting court pro se 4/10/80; U.S. Dist. Ct.

CA79-H-1385 originally pro se; coun-counsel appointed 10/20/81 dismissed for abuse of the writ; judgment vacated by 5th Cir. 7/30/81; evidentiary hearing held 10/26/81; petition dismissed for abuse of the writ 12/9/81; judgment reversed by panel of 5th Cir. 3/11/83; panel opinion vacated and rehearing en banc ordered 7/12/83 . Jones’s earlier federal applications were denied on March 24, 1972 and on December 17, 1976. The seven new grounds alleged by Jones are as follows:

(1) Defective indictment in state cause number B-2881 in that it alleges burglary of a house at night with intent to commit theft;

(2) Life imprisonment for three non-violent felonies constitutes cruel and unusual punishment;

(3) Jury charge in state cause no. 3084 varied from indictment; i.e., once the court defined “theft,” it used the term “theft” in the rest of the charges instead of restating the definition each time;

(4) Discrimination in grand jury selection in state cause no. B-2881;

(5) Conviction void where judgment recited prior felony convictions;

(6) Indictment in state cause no. B-2881 fails to state what property Jones intended to steal; and

(7) Indictment in state cause no. 3084, which alleged burglarious entry of a car by “force, threats, and fraud,” was defective where petitioner used only force. The brief filed with the district court by Jones’s attorney in the present case stated that (2) is decided adversely to Jones by Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); that there is insufficient evidence to go forward on (4); that (5) is waived; and that the indictments were sufficient as to the infirmities alleged in (6) and (7). Thus, of the new grounds, Jones is now asserting only (1) and (3).

Jones did not complain to the district court after remand of its refusal to reconsider the eight grounds ruled upon in the first two petitions and does not here. . Although Sanders arose under 28 U.S.C. § 2255, which provides relief tojoersons unlawfully sentenced by a federal coiirt, its analysis is equally applicable to § 2254, which provides relief to persons unlawfully sentenced by a state court. .

Because our decision today turns on the knowledge attributable to Jones’s prior habeas counsel, we need not here decide whether the knowledge of a pro se petitioner is judged by an actual knowledge standard or by a constructive knowledge—such as a reasonable man— standard. . Rule 9(

b) originally provided that a successive petition advancing new claims should be dismissed if the failure to raise these claims in the original petition was “not excusable.” By amendment, this “not excusable” language was superseded by the current “abuse of the writ” language because Congress feared that the “not excusable” standard was “new and undefined,” and “gave a judge too broad a discretion to dismiss a second or successive petition.” House Report No. 94-1471, reprinted in 1976 U.S.Code Cong. & Ad.News 2478, 2480.

This change in terminology did not effect a significant change in the governing standard we use, for our cases define abuse of the writ in terms of whether a petitioner’s unawareness of facts or failure to understand the legal significance of known facts is “excusable” or “justifiable.” See, e.g., Sockwell v. Maggio, 709 F.2d at 344. . But the Supreme Court in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) charges a prisoner with a duty to anticipate changes at the pain of forfeiture under a state contemporaneous objection rule.

We do not here define the scope of a petitioner’s need to anticipate changes in the law or decide whether the Engle duty extends to a habeas petitioner attempting to explain omitted claims. See also note 3, supra. . In Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924), for example, petitioner asserted two claims but pursued only one. Writ abuse was held to bar the other claim when it was asserted in a successive petition. . We recognize that a cramped reading of Rule 9(b)’s antecedents in Supreme Court caselaw could support a claim that 9(

b) applies only to knowing waivers by the petitioner himself. Rule 9(b), as we have stated, codifies the principles of Sanders, which in turn grounds its explication of waiver and abuse in Fay v. Noia. Fay defined waiver in terms of an understanding and knowing decision by an individual to forego a claim, and because it made no mention of the representative role of counsel, it could be read to exclude such an agency relationship, thereby expanding the Johnson v. Zerbst doctrine. By the time Rule 9(

b) was enacted, however, Fay’s reach had been substantially limited by Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) —a precursor of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)— which' recognized the agency authority of an attorney to waive certain substantive rights of a criminal defendant at trial. Thus, when Congress was considering Rule 9(b), Sanders and Fay were not then being read by the Supreme Court in a manner which would always require personal waiver by a petitioner.

But even if Congress read Sanders and Fay to limit the representative role of counsel, it does not follow that this limitation was engrafted into Rule 9(b). Sanders was the milestone case in which the Supreme Court explicitly enunciated a writ abuse doctrine. In this sense, Rule 9(b), the writ abuse statute, plainly codifies Sanders. However, we have never held that every hint or implication which may reasonably be perceived in Sanders is likewise embodied in Rule 9(b).

Here, where one such possible ramification of Sanders would severely undercut the efficacy of Rule 9(b), logic impels us to hold that this ramification of Sanders cannot control our reading of the rule Congress has enacted. . This case does not present the question of whether a lawyer’s omission of a claim from an earlier writ petition may be excused by a later change in law which could have reasonably been anticipated. Relatedly, note the suggestion of Justice Blackmun that a state could require a petitioner to assert all claims in a single petition.

Escape from a failure to do so would be measured by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Rose v. Lundy, 455 U.S. 509, 525 n. 2, 102 S.Ct. 1198, 1207 n. 2, 71 L.Ed.2d 379 (1982) (Blackmun, J., concurring in the judgment). . The standard for gauging effectiveness of counsel is now before the Supreme Court. Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982), cert. granted, - U.S. -, 103 S.Ct. 2451, 77 L,Ed.2d 1332 (1983); United States v. Cronic, 675 F.2d 1126 (10th Cir.1982), cert. granted, - U.S. -, 103 S.Ct. 1182, 75 L.Ed.2d 430 (1983). .

The plurality opinion was joined by Chief Justice Burger and Justices Powell and Relinquish Justice Brennan filed a dissent joined by Justice Marshall and in part by Justice White. However, Brennan and Marshall joined

part Ill(

b) of Justice O’Connor’s opinion which required dismissal of mixed petitions. Justice Stevens filed a separate dissent and Justice Blackmun a concurring opinion. . See Jones v. Hess, 681 F.2d 688, 695-96 (10th Cir.1982); Boles v. Foltz, 559 F.Supp. 1302, 1305 n. 5 (E.D.Mich.1983); Cartera v. Mitchell, 553 F.Supp. 866, 871 (E.D.Va.1982); Fugett v. Marshall, 541 F.Supp. 293, 294-95 (S.D.Ohio 1982). But see Powell v. Spalding, 679 F.2d 163, 165-66 n. 2 (9th Cir.1982); United States ex rel. Rivera v. Franzen, 564 F.Supp. 723, 725-26 (N.D.Ill.1983); Roland v. Mintzen, 554 F.Supp. 881, 886 (E.D.Mich.1983); Martin v. White, 538 F.Supp. 326, 327-28 (W.D.Mo.1982).