On November 16, 1978, the United States District Court for the Southern District of Texas dismissed petitioner Michael J. Paprskar's second federal habeas corpus petition as a successive petition "abuse of the writ". The district court erred in making that determination. Accordingly, we vacate the judgment below and remand to the district court for further consideration of Paprskar's petition.

This appeal marks Michael Paprskar's second appearance in this Court challenging his Texas conviction for murder or aspects of his confinement in the Texas penal system.1 In his initial Section 2254 petition, filed in December, 1975, petitioner alleged that state incarcerating authorities had unconstitutionally withheld credit for "good time" on thirty-nine months of pre-conviction detention.2 Although the district court granted Paprskar's petition, this Court ultimately reversed. Paprskar v. Estelle, 566 F.2d 1277, 1281 (5th Cir.), Cert. denied, 439 U.S. 843, 99 S. Ct. 136, 58 L. Ed. 2d 142 (1978).

Paprskar and his family retained an attorney to replace the lawyer who had represented petitioner since his arrest in 1970. Over a period of time, however, the retained counsel failed to seek post-conviction relief in the state courts. In the meantime, Paprskar proceeded pro se on his first Section 2254 petition3 and the federal district court appointed Attorney Maness, who represents Paprskar here, as counsel for petitioner in that action. Finally, in March, 1976, Paprskar's retained lawyer filed a state post-conviction action challenging petitioner's conviction. The state courts did not dispose of the matter until November, 1976. Even this belated action by the retained counsel, however, was insufficient in that, directly contrary to Paprskar's wishes, that lawyer raised no claims of the ineffective assistance of petitioner's original attorney. Thereafter, Attorney Maness filed a state post-conviction action raising the ineffective assistance allegations.4

As these attempts at relief proceeded toward exhaustion in the Texas state court system, the federal district court granted Paprskar's "good time" petition. As noted above, however, this Court reversed and the Supreme Court ultimately denied certiorari.

After frustration of his attempt for good time relief, Paprskar on April 19, 1978, filed pro se5 his second habeas corpus petition in the federal courts, the petition under consideration here. Unlike the earlier habeas corpus application, the second petition omitted any reference to conditions of Paprskar's confinement and instead challenged petitioner's conviction.6

Respondent filed a motion to dismiss the second application, asserting that it was a "successive petition" within the purview of Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C. following § 2254) and constituted an "abuse of the writ" because Paprskar "should have submitted in his initial federal habeas corpus application (the "good time" case) all of the issues" raised in the second petition.7 The district court directed Paprskar to explain the reason the contentions raised in the second petition had not been asserted in the first application.8 The case was then referred to the United States Magistrate who recommended that the district court dismiss the petition as "a classic case of abuse of the writ."9 The district court followed that recommendation.10

The district court dismissed Paprskar's second petition under the authority of the prohibition of Rule 9(b) against abuse of the writ. For that decision, respondent invites the imprimatur of this Court. We decline the invitation.

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

To determine whether given conduct constitutes abuse of the writ, however, reference to pre-Rule 9 case law is necessary. Rule 9(b) did not in any way change the standards that govern habeas corpus petitioners in the federal courts. Rather, the Rule restates principles that had previously been judicially developed.

The Supreme Court in Sanders v. United States, 373 U.S. 1, 17, 83 S. Ct. 1068, 1078, 10 L. Ed. 2d 148 (1963) announced that "full consideration of the merits (of a habeas corpus petitioner's allegations) can be avoided only if there has been an abuse of the writ . . . ." As enacted by Congress, Rule 9(b) codifies the standard of Sanders. Advisory Committee Note, Rule 9, Rules Governing Section 2254 Cases in the United States District Courts (28 U.S.C. following § 2254); H.R.Rep.No.1471, 94th Cong., 2d Sess. 5-6, Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 2478, 2482; Galtieri v. Wainwright, 582 F.2d 348, 356 & n.18 (5th Cir. 1978) (en banc); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4267 at 690-91 (1978).11 When we examine the conduct of petitioner12 in light of the equities, See Sanders, supra, 373 U.S. at 17, 83 S. Ct. at 1078, we clearly cannot conclude that this petition constitutes "needless piecemeal litigation" or that its "purpose is to vex, harass, or delay." Id. at 18, 83 S.Ct. at 1078. There was here no abuse of the writ of habeas corpus.

The Sanders Court spoke of a circumstance in which abuse of the writ is present. "(I)f a prisoner Deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application . . . he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground." 373 U.S. at 18, 83 S. Ct. at 1078 (emphasis added). However, from Sanders' incorporation of the standards of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) and Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837, See 373 U.S. at 18, 83 S. Ct. at 1078 (1963), it is clear that such conduct will be an abuse of the writ only if due to "inexcusable neglect," Townsend, supra, 372 U.S. at 317, 83 S. Ct. at 759, or because of " 'an intentional relinquishment or abandonment of a known right or privilege,' " Fay, supra, 372 U.S. at 439, 83 S. Ct. at 849, Quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). See 28 U.S.C. § 2244(b); Turnbow v. Beto, 464 F.2d 527, 528 (5th Cir. 1972); Galtieri, supra, 582 F.2d at 368 (Goldberg, J., dissenting).

The Sanders Court recognized that "(n)othing 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." 373 U.S. at 18, 83 S. Ct. at 1078 (emphasis added). The Sanders ruling was based on the principle "that 'habeas corpus has traditionally been regarded as governed by equitable principles.' United States ex rel. Smith v. Baldi, 344 U.S. 561, 573, 73 S. Ct. 391, 397, 97 L. Ed. 549 (dissenting opinion). Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Sanders, supra, 373 U.S. at 17, 83 S. Ct. at 1078.

In the present case there was neither inexcusable neglect nor deliberate withholding of a ground for relief. See Turnbow v. Beto, supra. At the time the district court considered Paprskar's "good time" case, the allegations raised in his second federal petition, See note 6, Supra, had not yet been finally acted on by the courts of Texas and therefore remained unexhausted. The "good time" case, however, was ready to proceed toward resolution. As stated in our en banc decision in Galtieri, supra, 582 F.2d at 351, "(t)he rule in this circuit is that a federal district court generally must dismiss, without prejudice, a state prisoner's petition for a writ of habeas corpus that contains a mixture of exhausted and unexhausted claims." Given that rule, we certainly can fault neither the district court for proceeding with the "good time" litigation nor Mr. Maness for not derailing resolution of claims concerning the conditions of petitioner's confinement until exhaustion in the state courts of challenges wholly unrelated to the facts and law involved in the "good time" case. The simple fact is that the "good time" case was ripe for adjudication and the claims challenging the underlying conviction were not. "The 'abuse of the Writ' doctrine is of rare and extraordinary application." Simpson v. Wainwright, 488 F.2d 494, 495 (5th Cir. 1973). Clearly, it is inapplicable where, as here, there was "some justifiable reason" for failure to raise the contentions in the first petition. Price v. Johnston, 334 U.S. 266, 291, 68 S. Ct. 1049, 1062, 92 L. Ed. 1356 (1948). Respondent cites no case, nor has a search revealed any, that indicates that abuse of the writ exists in the circumstances involved here.

Respondent argues that the forceful reiteration in Galtieri of the goal of "one federal proceeding embracing all claims," 582 F.2d at 357, requires us to find an abuse of the writ here. The argument, however, is inapposite.

First, as noted above, Rule 9(b) did not change the judicial interpretation of the abuse of the writ standard and no cases evidence that abuse of the writ occurred here. Even Galtieri 's forceful statement of the goal of one habeas trip to the federal courts, of itself, would not require a finding of abuse here. Second, even if we were to view the Galtieri language as justifying a dismissal of Paprskar's second petition, we must recognize that at the time petitioner filed his second Section 2254 petition, Galtieri had not yet been decided by this Court en banc. Indeed, the magistrate's recommendation of dismissal, accepted by the district court, that stated that Paprskar's actions constituted a "classic abuse of the writ" preceded by a few days the announcement of Galtieri. Last, although Galtieri recognizes the role of Rule 9(b) in achieving "the goal," the Galtieri court explicitly recognized that a petitioner could avoid Rule 9(b) dismissal of a second petition if the second petition asserts claims that were unexhausted at the time the first petition was brought. 582 F.2d at 358-59.

The circumstances involved here are not those of Jones v. Wainwright, 608 F.2d 180 (5th Cir. 1979), in which this Court had an opportunity to determine whether the possibility of a second habeas corpus petition alleging claims unexhausted at the time the first petition was brought would require that the first petition be dismissed Without prejudice.13 There, a dismissal would not "bar the federal courthouse door" to any of the claims of the petitioner. See Galtieri, supra, 582 F.2d at 355. Conversely, in the present case, if the district court decision is allowed to stand, Paprskar will be forever foreclosed from a federal forum in which to assert constitutional challenges to his conviction. Equity does not compel indeed it cannot tolerate such a result.

Although we vacate the order of the district court, we cannot at this juncture mandate that the court reach the merits of Paprskar's petition. In its motion to dismiss the petition, respondent alleged prejudice resulting from petitioner's delay in bringing the second petition. See note 7, Supra. Rule 9(a) offers a laches defense to delayed petitions. In Galtieri, the Court specifically contemplated Rule 9(a) as the appropriate tool to help prevent unnecessary successive petitions asserting claims previously unexhausted. 582 F.2d at 358-59; See id. at 374 & n.12 (Goldberg, J., dissenting). The district court on remand should consider respondent's Rule 9(a) defense. We note, however, that " '(d)elay alone is no bar to federal habeas relief . . . .' " United States ex rel. Barksdale v. Blackburn, 610 F.2d 253, 260 (5th Cir. 1980) (Quoting Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970)). In order to prevail on a laches claim respondent must make a particularized showing of prejudice. See Jackson v. Estelle, 570 F.2d 546, 547 (5th Cir. 1978).

VACATED and REMANDED.

COLEMAN, Chief Judge, concurring.

I agree that In the present state of habeas corpus law the judgment of the District Court must be vacated and remanded. Nevertheless, I must make a few comments on this case.

On January 20, 1970, ten years ago, Paprskar and a companion killed three people because Paprskar thought he had been sold "bad heroin". One of those killed was a four year old child. The father of the child had just been killed when the malefactors unexpectedly discovered the presence of the child, in an automobile parked at the scene. They discussed the matter and agreed that the child "had to be killed", which was done forthwith. A more deliberate, cold-blooded murder of an inoffensive child who hardly could have comprehended the danger he was in, or why he was in it, would be hard to imagine.

For the murder of the child, Paprskar was convicted and assessed the death penalty. This, however, was reversed because certain items seized as the result of a warrantless search had not been suppressed, Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App., 1972). Paprskar was never again tried for the murder of the child. Instead, represented by retained counsel, he was allowed to plead guilty to the indictments which charged the murder of the other two individuals and received concurrent sentences of twenty years. As a matter of ultimate fact, Paprskar was sentenced to twenty years for three murders.

He has been in prison for ten years. After unsuccessfully filing several other petitions for habeas corpus he again seeks to invoke the Constitution, on grounds never before suggested, to void his pleas of guilty and to avoid an unusually mild sentence.

Of course, the Constitution is supreme and must be obeyed. I do not quarrel with that. I do find it to be painfully incongruous that he who defies all civilized notions of due process in the summary theft of a human life is allowed, years after the event and years after his conviction has become final, to raise all kinds of constitutional claims which, if they existed, could have been raised at trial or, at least, soon thereafter.

The fault, of course, is not with the Great Writ. It lies in the manner in which it is allowed belatedly to be invoked. While Congress has commendably made some effort to limit jurisdiction for the entertainment of these eleventh hour attacks on state court convictions it is readily apparent to one regularly dealing with the subject that those efforts have not met with much success.

Very few belated applications for habeas corpus claim that the petitioner is innocent. The fundamental purpose of the Writ has been distorted. The confidence of the general public in the ability of state courts to bring criminals to justice has been eroded. The deterrent effect of law prohibiting criminal conduct has been seriously damaged. The decisions say that the Writ may not be used as a second appeal, but from experience the outlaws know better. Instead of being a bulwark of freedom for the citizen it has been allowed to become a last, and too often a sure, refuge for those who have respected neither the law nor the Constitution.

I would not limit the Writ, if I could, but I most assuredly would limit its application in situations such as we encounter in this case.

As I do here, I must follow the law as it exists. I do not understand, however, that I am not allowed to mention serious defects in the law.

In this case it is a fact that Paprskar did plead guilty in two cases. On remand, I would like to direct the attention of the District Court (if that is necessary) to the following language in Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973):"(A) guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in (the trilogy)."