IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE FIFTH CIRCUIT



                                         No. 94-10796 and
                                          No. 94-10797



UNITED STATES OF AMERICA,

                                                                                    Plaintiff-Appellee,


                                                versus


HENRY ESPINOZA and RAYMOND ESPINOZA,

                                                                              Defendants-Appellants.




                          Appeals from the United States District Court
                               for the Northern District of Texas


                                           April 25, 1996

Before JONES, STEWART, and PARKER, Circuit Judges.

CARL E. STEWART, Circuit Judge:

                                          BACKGROUND

       In a consolidated appeal, Henry Espinoza and Raymond Espinoza appeal the district court’s

dismissal of their second 28 U.S.C. § 2255 motions. Henry pleaded guilty to interfering with

commerce by robbery and was sentenced to 20 years imprisonment and 3 years supervised release.

Raymond pleaded guilty to conspiracy and interfering with commerce by robbery and was sentenced

to 25 years imprisonment and 3 years supervised release. Neither petitioner appealed.

       Both petitioners claim that they wished to appeal, but that their lawyers failed to perfect their

appeals. The petitioners filed all subsequent pleadings pro se until this court appointed counsel.

       The Espinozas filed separate motions to vacate, set aside, or correct their sentences pursuant
to 28 U.S.C. § 2255. In their motions they alleged that (1) the sentencing court incorrectly imposed

the statutory maximum sentence instead of the guidelines sentence and (2) the court erred by denying

a 2-point reduction for acceptance of responsibility. Raymond also alleged that a prior driving-while-

intoxicated conviction should not have been included in his criminal history calculation. On April 7,

1993, the district court denied both motions because (1) the issues raised were not of constitutional

magnitude and the Espinoza’s failed to show cause for failing to raise these issues in the district court

or on direct appeal and (2) their claims lacked merit. On April 16, 1993, the Espinoza’s filed motions

to dismiss their § 2255 motions without prejudice, which were denied as moot. They did not appeal

the district court order on their first § 2255 motion.

Henry

        On March 30, 1994, Henry filed the present § 2255 motion. Among other allegations, he

claimed ineffective assistance of counsel. The district court dismissed the motion for “abuse of the

writ” because Henry failed to show cause for not asserting these grounds in his first § 2255 motion,

for failing to appeal, and because Henry’s claims lacked merit. Henry appealed this order.

Raymond

        On May 23, 1994, Raymond filed his § 2255 motion, alleging (1) the imposition of supervised

release resulted in an illegal sentence in excess of the statutory maximum sentence, (2) ineffective

assistance of counsel, and (3) his guilty plea was not knowing and voluntary. The district court’s

dismissal of Raymond’s motion was based on grounds essentially the same as articulated in Henry’s

case: “abuse of the writ” for failing to assert these grounds in his first § 2255 motion, for failing to

appeal, and for lack of merit. Raymond appealed this order.

                                             DISCUSSION

        We review the denial of a successive § 2255 motion for abuse of discretion. United States

v. Flores, 

, 234 (5th Cir. 1993).

        Neither Henry nor Raymond Espinoza raised the ineffective assistance of counsel claim in

their initial § 2255 motions. The district court found that their failure to raise all claims in those first


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writs amounted to “abuse of the writ.” The Supreme Court has held that in the habeas context,

raising claims in a second petition that “could and should have been raised in the first petition,”

constitutes abuse of the writ. McCleskey v. Zant, 

, 488-89 (1991). However, we will

excuse a habeas corpus petitioner’s failure to raise a ground for relief in his initial petition if he shows:

(1) cause for his failure to raise the claim, as well as prejudice from the errors which form the basis

of the complaint or (2) that the court’s refusal to hear the claim would result in a fundamental

miscarriage of justice. 

        The trial court found that neither Henry nor Raymond Espinoza demonstrated adequate cause

for his failure to raise the ineffective assistance claims in his first § 2255 motion. As cause, the

Espinozas claim that they had been locked down subsequent to filing their first motions, preventing

them from dismissing or amending their petitions before the trial court ruled on them. However, the

only reason given for failing to allege the issue in the initial filing was that they were acting pro se.

This court has held that, for abuse of the writ purposes, the fact that a petitioner is pro se does not

amount to “cause” under McCleskey. Saahir v. Collins, 

, 118 (5th Cir. 1992). Further,

neither petitioner has shown that failure to consider his subsequent motion would result in a

fundamental miscarriage of justice - that is, that the alleged constitutional violation probably caused

the conviction of an innocent man. 

        For the foregoing reasons we affirm the judgment of the district court that the petitioners’

writs were successive and abusive. Finding no abuse of discretion, we need not consider the issue

of ineffective assistance of counsel.




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