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October 18, 1984


The opinion of the court was delivered by: Getzendanner, District Judge.


This is not the first time that Cyburt has sought habeas corpus relief from this court. Because an understanding of the prior proceedings is important to the resolution of the claims advanced in this petition, the court starts by charting the history of Cyburt's several attempts to overturn his guilty plea.

Cyburt did not directly appeal from his conviction. He first sought to challenge the validity of his guilty plea and sentence in a state post-conviction proceeding. After appointing counsel to file an amended petition, the trial court dismissed Cyburt's application for post-conviction relief without an evidentiary hearing.

Cyburt appealed the dismissal. People v. Cyburt, 50 Ill. App.3d 414, 8 Ill.Dec. 618, 365 N.E.2d 1004 (1977). On appeal he raised four issues: (1) that his guilty plea was induced by promises of immediate psychiatric care and therefore not knowingly and intelligently given; (2) that the circumstances surrounding the plea proceedings raised sufficient questions of doubt as to Cyburt's competence so as to require a competency hearing; (3) that the standard of competence required to plead guilty is higher than the standard required to stand trial; and (4) that the trial court improperly imposed sentences on multiple charges. The state appellate court reversed Cyburt's conviction and sentence for incest and affirmed dismissal of the amended post-conviction petition in all other respects.

Cyburt then filed a petition for writ of habeas corpus in federal court. In the habeas corpus petition Cyburt again claimed that his guilty plea was involuntary and that his behavior during the plea proceedings was so bizarre as to raise a bona fide doubt as to his competency, thereby requiring the trial judge to conduct an evidentiary hearing on the matter before accepting his plea. In addition to these claims, Cyburt for the first time challenged the constitutional effectiveness of his defense counsel. The district court dismissed the petition on the merits without hearing and the Seventh Circuit affirmed the order of dismissal. United States ex rel. Cyburt v. Rowe, 638 F.2d 1100 (7th Cir. 1981). Cyburt appeared pro se throughout the proceedings on his federal habeas corpus petition.

On June 17, 1982, Cyburt again filed for federal habeas corpus relief. The instant petition, liberally construed in accordance with Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), presents four claims for relief: (1) that an admission of guilt contained in a psychiatric report submitted to the trial judge deprived him of his Fifth Amendment privilege against self-incrimination under the rule announced in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); (2) that the State reneged on alleged promises made in exchange for Cyburt's negotiated guilty plea; (3) that Cyburt's sentences were not reduced after two of the charges against him were vacated; and (4) that Cyburt was barred from presenting a number of mitigating factors to the sentencing court.

Respondents contend that Cyburt's second petition should be dismissed as successive under Rule 9(b) of the Rules Governing Section 2254 Cases.*fn1 Traditional principles of res judicata do not apply to habeas corpus proceedings. Fay v. Noia, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837 (1963). But a prisoner's right to apply repeatedly to federal courts for habeas corpus relief is not without limits. "While the writ should never be denied in the proper case, judicial economy dictates restrictive limitations on reruns." United States ex rel. Townsend v. Twomey, 452 F.2d 350, 357 (7th Cir. 1972), cert. denied, 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98 (1972). The limitations on the court's discretion to entertain successive petitions for habeas corpus are presently embodied in Rule 9(b).

Rule 9(b) provides two grounds for dismissal of successive applications for federal habeas corpus relief. The first ground permits dismissal of claims raised in earlier petitions and dismissed on the merits. The second ground permits dismissal of a petition raising new and different grounds for relief if failure to assert those grounds in a prior petition is found to constitute an abuse of the writ. Abuse of the writ is an affirmative defense which the state must plead. Price v. Johnston, 334 U.S. 266, 291-92, 68 S.Ct. 1049, 1062-63, 92 L.Ed. 1356 (1948); Robinson v. Fairman, 704 F.2d 368, 370 (7th Cir. 1983). Once the state has met its burden of pleading abuse of the writ, the burden shifts to the petitioner to justify his failure to raise the claim in the earlier petition. Robinson, 704 F.2d at 370. In order to meet this burden, petitioner must be given a reasonable opportunity to respond to a request for dismissal under Rule 9(b). Id. In compliance with the procedure outlined in Price and Robinson, the court has directed Cyburt to use the Model Form for Use in 28 U.S.C. § 2254 Cases Involving a Rule 9 Issue to explain his reasons for filing a successive petition in discharge of his burden of proving he has not abused the writ. Cyburt has responded and the court must now determine whether his petition should be dismissed as successive.

Respondents urge dismissal of Cyburt's petition on the ground that the claims asserted are merely a reiteration of those considered and dismissed on the merits in the prior habeas proceeding. Cyburt argues that three of the grounds presented in the second petition are new and different from those presented in the first. He concedes, however, that the claim alleged in ground four of the petition involves some of the issues addressed in the initial petition. The court examines this claim first.

In ground four Cyburt alleges he was denied a hearing on the question of fitness as well as other opportunities to present mitigating circumstances to the trial court. As is evident from the discussion of the history of Cyburt's prior sojourn through the federal courts, the earlier proceedings conclusively determined both the constitutionality of accepting Cyburt's guilty plea without first conducting a hearing on his competency and the voluntariness of the plea. Because the earlier proceedings adjudicated these claims on the merits, Rule 9(b) gives this court discretion to dismiss ground four as successive. Exercise of such discretion to dismiss is restrained only by the "ends of justice" exception. Under this exception, the court will review anew a ground rejected on the merits in a prior application for habeas relief only if petitioner shows that redetermination of the earlier decided grounds would serve the ends of justice. Johnson v. Wainwright, 702 F.2d 909, 911 (11th Cir. 1983); Townsend, 452 F.2d at 355. Cyburt has not met that burden here.

Cyburt cites a lack of counsel as reason for permitting him to relitigate the question of his fitness at the plea proceedings. But more than a mere absence of professional legal representation is needed to justify relitigation of claims already decided adversely to a prisoner who files multiple applications for federal habeas corpus relief. See Johnson, 702 F.2d at 912. The record of Cyburt's first case indicates that both the trial and appellate court gave Cyburt's claims full and fair consideration. Cyburt does not here present any additional facts or otherwise materially challenge the legal basis underlying the dismissal of his claims on the first try. Nor does he allege any particular prejudice resulting from his lack of professional legal assistance. In these circumstances, the ends of justice do not require this court to consider again Cyburt's renewed challenge to his competency to enter a plea of guilty and to the voluntariness of his plea agreement. See Sanders v. United States, 373 U.S. 1, 16-17, 83 S.Ct. 1068, 1077-1078, 10 L.Ed.2d 148 (1963). Accordingly, the claims Cyburt advances in ground four of the petition are dismissed under Rule 9(b) as repetitive.*fn2

The three remaining grounds for relief alleged in the petition were not presented in Cyburt's first application for federal habeas corpus relief. Under Rule 9(b), the court can avoid full consideration of the merits of these new grounds only if it finds that petitioner's failure to raise them in the earlier petition constitutes an "abuse of the writ." The proper standard for defining "abuse of the writ" is an open question in this circuit. Robinson, 704 F.2d at 370 n. 5.

Definition of abuse of the writ must start with the legislative history of Rule 9(b). As originally promulgated by the Supreme Court, Rule 9(b) authorized dismissal of any new ground in a successive habeas corpus petition if failure to assert it in the first petition is "not excusable." But Congress rejected the language submitted to it and replaced the not excusable standard with the abuse of the writ standard. The reasons for this change, as expressed by the House Judiciary Committee, was that "the `not excusable' language [of the proposed Rule] created a new and undefined standard that gave a judge too broad a discretion to dismiss a second or successive petition." H.R.Rep. No. 1471, 94th Cong., 2d Sess. 5-6, reprinted in 1976 U.S. Code Cong. & Ad.News 2478, 2482. In modifying Rule 9(b) before final enactment, Congress expressly ...

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