This habeas corpus appeal involves the procedural guidelines of a Rule 9(b) dismissal. See Rule 9 of the Rules Governing Sec. 2254 Cases in the United States District Courts, 28 U.S.C.A. foll. Sec. 2254 (hereinafter "Rule 9" or "Section 2254 Rules"). Petitioner's second Section 2254 petition was dismissed as both successive and as an abuse of the writ under Rule 9(b). Finding that the district court did not abuse its discretion in dismissing this case, we affirm.

Luther Henry Allen ("Allen") was convicted of the offense of rape in the Superior Court of Elbert County and sentenced to life imprisonment. On appeal, the Georgia Court of Appeals affirmed his conviction. Allen v. State, 152 Ga.App. 481, 263 S.E.2d 259 (1979).

After exhausting his remedies in state courts as required by Sec. 2254(b),1 Allen filed his application for relief in the United States District Court for the Middle District of Georgia. A United States Magistrate found that petitioner had received a full and fair hearing on all of his claims in the state evidentiary hearing and concluded that no federal evidentiary hearing was required. He also made findings of fact and conclusions of law on each of petitioner's allegations and recommended dismissal of the petition. Allen filed timely objections to the magistrate's findings on grounds seven through eleven. See infra note 2. The district court, upon review of the transcript and record on file, found that petitioner was being constitutionally confined. It determined that there was no merit to petitioner's objections and adopted the findings, conclusions, and recommendation of the magistrate in their entirety.2

Allen perfected an appeal to this Court but failed to file an appellate brief. This appeal was administratively dismissed for want of prosecution on June 24, 1983 after Allen received notice of the pending dismissal.3

Allen commenced a new round of habeas corpus proceedings in state court, which were denied as successive on or about May 23, 1984. On December 3, 1984, Allen filed a second Section 2254 petition in the United States District Court for the Middle District of Georgia. The district court allowed Allen to proceed in forma pauperis and ordered him to amend his petition to include "every unalleged possible constitutional error or deprivation entitling petitioner to habeas relief in this court." In his amended petition, Allen raised five additional grounds for relief.4 The State filed a Rule 9(b) motion to dismiss on the grounds that Allen's petition was successive and an abuse of the writ. Acting pro se, Allen filed a response in which he admitted that he was aware of the facts in support of his two new claims but that, being unschooled in the law, he was unaware that these claims were of constitutional dimension.

On March 18, 1985, the district court dismissed Allen's second Section 2254 application. In its Order, the court held that 1) four of Allen's alleged errors did not state claims cognizable under Section 2254; 2) five claims had been decided against Allen on their merits in his first Section 2254 application proceeding; and 3) the two new issues should have been raised previously and Allen's failure to raise these two claims in the first proceeding constituted an abuse of the writ. The district court relied on the record to make its ruling and did not afford Allen an evidentiary hearing to contest the State's Rule 9(b) motion to dismiss.

Allen argues on appeal that the district court abused its discretion in granting the motion to dismiss without first affording him an evidentiary hearing. Specifically, Allen contends that he was entitled to an evidentiary hearing to determine 1) whether the allegations made in his first Section 2254 application were determined "on the merits" and 2) whether there was "excusable neglect" for his failure to raise the two new claims in his first Section 2254 application. In regard to the first point of appeal, Allen points out that the court relied on evidence outside of the pleadings in his second petition in reaching its decision. By doing so, Allen alleges that the court, in effect, treated the Rule 9(b) motion for dismissal as a motion for summary judgment but failed to give him notice of that fact as required by law. In regard to the second point of appeal, Allen contends that he failed to receive notice of the pending Rule 9(b) dismissal and that he deserved an evidentiary hearing to show that he had not abused the writ.

In the present petition, we are confronted with two categories of claims, both of which fall within the scope of Rule 9(b).5 The first category involves claims that were previously raised and decided on the merits. The second category involves claims that are being presented for the first time. In both instances, we must determine whether the district court abused its discretion in dismissing Allen's application without granting him an evidentiary hearing. See Sanders v. U.S., 373 U.S. 1, 18, 83 S. Ct. 1068, 1078-79, 10 L. Ed. 2d 148 (1963).

In regard to the successive claims, the district court took judicial notice of the allegations Allen had made in his first Section 2254 application6 and determined that these had already been decided adversely to Allen on the merits.7 Allen contends that he deserved an evidentiary hearing to determine whether the successive claims were, in fact, adversely decided "on the merits."8 In making its ruling, the district court reviewed the record on Allen's first Section 2254 application. According to Allen, by relying on "evidence" outside of the petition, the court in effect treated the State's Rule 9(b) motion to dismiss as one for summary judgment and that, under the analysis of Hill v. Linahan, 697 F.2d 1032 (11th Cir.1983), he was entitled to notice of the pending dismissal, which he never received.

In Hill v. Linahan, a Section 2254 petitioner appealed from the decision of the district court dismissing his application under Rule 9(a) on grounds of delay.9 In response to petitioner's application, the state had filed an answer to which there was attached a brief as well as five documentary exhibits. In recommending dismissal of the petition, the magistrate's report explicitly relied on two of the state's exhibits. Adopting the reasoning of the Fifth Circuit in McDonnell v. Estelle, 666 F.2d 246 (5th Cir.1982),10 we held that the district court's reliance on evidence outside of the pleadings transformed the motion for dismissal into one for a summary judgment under Rules 12(b) and 56 of the Federal Rules of Civil Procedure.11 Under Rule 56(c), the party opposing the motion is entitled to ten days notice on the theory that the element of finality in a judgment on the merits would motivate the opposing party to rebut the motion with every factual and legal argument available to him. See Hill, 697 F.2d at 1034 and cases cited.

Allen would have us find that the district court's review of his first petition and the allegations made therein transformed the State's Rule 9(b) motion to dismiss into one for summary judgment, thereby triggering the ten day notice requirement of Rule 56(c), Fed.R.Civ.P. and its application under Hill. This we refuse to do. First, we hold that the district court could take judicial notice of prior Section 2254 applications filed by Allen. Second, Allen knew the contents of his first petition since he had filed it, and he was doing a disservice to the court if he failed to bring the first petition to the court's attention. On these facts, there was no need for the court to give Allen a ten day summary judgment notice.

Finally, Allen alleged no facts in his second petition that would have compelled the court to reevaluate Allen's previously asserted claims. Implicit in the court's ruling was the determination that the "ends of justice" would not have been served by such an inquiry. See Bass v. Wainwright, 675 F.2d 1204, 1207 (11th Cir.1982) (discussing considerations in determining whether a new inquiry into previously asserted claims is required). We hold that the district court did not abuse its discretion in dismissing Allen's petition on the ground that five of his allegations had been previously determined and dismissed on their merits.

The district court also found that Allen's failure to present his two new claims, that is, the omission of facts from the trial transcript12 and the alleged conspiracy among the authorities to tamper with the evidence, constituted an abuse of the writ under Rule 9(b). As to these claims, the government had the burden of pleading abuse of the writ. Sanders, 373 U.S. at 10-11, 83 S.Ct. at 1074-75; Price v. Johnston, 334 U.S. 266, 292, 68 S. Ct. 1049, 1063, 92 L. Ed. 1356 (1948). The burden then shifted to the petitioner to show that he had not abused the writ. Price, 334 U.S. at 292-93, 68 S.Ct. at 1063-64. And the petitioner had to give a good excuse for not having raised his claims previously. See Sanders, 373 U.S. at 18, 83 S.Ct. at 1078-79; 28 U.S.C. Sec. 2244(b) supra note 7 (phrasing the test in terms of deliberate withholding of possible grounds for relief); cf. Smith v. Yeager, 393 U.S. 122, 126, 89 S. Ct. 277, 279-80, 21 L. Ed. 2d 246 (1968); Townsend v. Sain, 372 U.S. 293, 317, 83 S. Ct. 745, 759, 9 L. Ed. 2d 770 (1963) (phrasing the test in terms of excusable neglect). An evidentiary hearing was not necessarily required if the record afforded an adequate basis to make a ruling. Price, 334 U.S. at 292-93, 68 S.Ct. at 1063-64.

In response to the State's motion to dismiss, Allen filed a document entitled, "Petitioner's Response In Opposition To A Rule 9(b) Dismissal." In this response, Allen admitted that he was aware of the factual basis of his two new claims but did not realize that they were of constitutional dimension.13 Based on this response, the district court found that,

It does not require legal advice to appreciate the fact that an intentional distortion of a trial transcript, or the deliberate tampering with the evidence, if proven, amount to constitutional claims. Petitioner, having admitted that he was aware of these claims when he filed his first federal habeas action, should have asserted them at that time. Petitioner has failed to establish that these claims were omitted under circumstances amounting to excusable neglect and the court must conclude they were deliberately withheld.14

Allen argues again, that he was not provided with the requisite notice of a pending Rule 9(b) dismissal as recommended by the advisory committee note to Rule 9. We do not see what purpose such notice would have served in this instance. Allen's admissions in his response to the motion to dismiss provided the court sufficient grounds on which to make a ruling. Moreover, we believe that the district court gave Allen the benefit of the doubt in treating two of his contentions as claims on "new or different grounds." The factual basis of Allen's new claims are closely intertwined with his previously asserted claims and we find that this has a bearing on whether Allen may avail himself of an exception to the abuse of the writ doctrine.15

We can not find that the ends of justice required the district court to make further inquiry into Allen's previously asserted claims. Nor do we find that the district court abused its discretion in finding that Allen had abused the writ by withholding his two new allegations in the first proceeding. The district court's refusal to afford Allen an evidentiary hearing on his second Section 2254 petition was within its discretion.

AFFIRMED.