The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
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
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) 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
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 ...