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* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 91-2267
Summary Calendar
__________________
CARL WILLIAM JOHNSON,
Petitioner-Appellant,
versus
JAMES A. COLLINS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
______________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CA-H-89-2386)
______________________________________________
(January 26, 1993)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Carl William Johnson (Johnson) appeals
the district court's dismissal under Rule 9(b) of the Rules
Governing § 2254 Cases of his pro se petition for habeas relief
under 28 U.S.C. § 2254. Finding no error, we affirm.

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2
Factual and Procedural Background
In 1982, Johnson was convicted by a jury of aggravated rape in
state district court in Harris County, Texas. The court sentenced
him to sixty years' imprisonment. On November 18, 1982, the
Houston court of appeals affirmed his conviction in an unpublished
opinion. The Texas Court of Criminal Appeals denied Johnson's
petition for discretionary review on February 23, 1983.
Between 1983 and 1986, Johnson proceeded to file four
unsuccessful applications for a state writ of habeas corpus. The
first was denied without written order on the findings of the trial
court without a hearing on January 4, 1984, by the Texas Court of
Criminal Appeals. The second was denied without written order on
September 26, 1984, by the Court of Criminal Appeals. His third
and fourth applications were denied by the Court of Criminal
Appeals without written order on the findings of the trial court
without a hearing on January 30, 1985, and October 1, 1986,
respectively.
Johnson thereafter proceeded to file a federal habeas corpus
petition under 28 U.S.C. § 2254. Johnson sought relief on three
grounds: 1) that he was denied due process because the trial court
failed to instruct the jury on the definition of a deadly weapon;
(2) that he was denied due process because the trial court
encroached on the jury's province by making a finding that a deadly
weapon was used in the commission of the offense; and (3) that the
judgment was void because the jury charge allowed conviction on a
non-unanimous verdict. On December 9, 1987, the district court
denied Johnson relief. Johnson did not appeal.

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3
On July 18, 1989, Johnson filed the instant petition for
federal habeas relief. In this second federal habeas petition,
Johnson asserted five grounds of relief: (1) he was denied due
process because the indictment was fundamentally defective; (2) he
was denied due process because the court's charge allowed the jury
to convict for an offense not alleged in the indictment; (3) he was
denied due process because the trial court failed to instruct the
jury on the definition of a deadly weapon; (4) he was denied due
process because the verdict was premised on a non-unanimous
verdict; (5) he was denied effective assistance of counsel. The
district court granted him leave to proceed in forma pauperis. The
State of Texas filed a motion to dismiss the petition under Rule
9(b) of the Rules Governing Habeas Corpus Cases under § 2254. The
State contended that Johnson's fourth allegation should be
dismissed as successive because it was raised in his prior federal
habeas petition. The State also argued that Johnson's remaining
four allegations should be dismissed as an abuse of the writ
because he did not present them in his first federal habeas
petition. On November 6, 1990, the district court ordered Johnson
to respond to the state's motion to dismiss and establish that he
had not abused the writ. In the order, the district court noted
that it appeared that Johnson's first federal habeas petition
included three repeated claims, instead of only one as the State
had alleged.
After receiving an extension of time, Johnson responded to the
State's motion to dismiss on December 31, 1990. Johnson commenced
his Response by waiving his fourth ground of relief that the

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4
verdict was premised on a non-unanimous verdict. Johnson also
argued that even though his third ground that the trial court
denied him due process by failing to instruct the jury on the
definition of a deadly weapon had been previously raised in his
first federal habeas, he should be allowed to relitigate it because
the district court in his first federal petition erred in disposing
of the claim. Johnson contended that his remaining three grounds
of relief should not be dismissed even though he did not raise them
in his first federal petition because he was functionally
illiterate, had been representing himself pro se, and did not
realize that he was waiving the claims.
On March 4, 1991, the district court granted the state's Rule
9(b) motion and entered final judgment against Johnson. Johnson
timely filed a notice of appeal.
Discussion
The district court dismissed all of Johnson's claims under
Rule 9(b) as either successive or an abuse of the writ. The
decision to dismiss a habeas petition under Rule 9(b) lies within
the sound discretion of the district court and will be reversed
only for an abuse of discretion. Daniels v. Blackburn, 763 F.2d
705, 707-08 (5th Cir. 1985).
I. Successive Claims
In his first federal habeas petition, Johnson raised two of
the constitutional claims he presses here: (1) that he was denied
due process because the verdict was premised on a non-unanimous
verdict and (2) that he was denied due process because the trial
court failed to instruct the jury on the definition of a deadly

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5
weapon. In his Response to the state's motion to dismiss, Johnson
stated that he was waiving his ground that he was denied due
process because the verdict was premised on a non-unanimous
verdict. Thus, Johnson only presents one claim that he has raised
in an earlier federal habeas petition, namely, that the trial court
violated his due process rights by failing to instruct the jury on
the definition of a deadly weapon.
We find that the district court did not abuse its discretion
in dismissing this claim as successive. Rule 9(b) of the Rules
Governing § 2254 Cases similarly permits judges to refuse to
consider successive claims "if the judge finds that it fails to
allege new or different grounds for relief and the prior
determination was on the merits." If the petitioner does raise a
claim that a federal court has already considered in a previous
habeas corpus petition, "we may review the merits of the successive
claim only when `the prisoner supplements his constitutional claim
with a colorable showing of factual innocence.'" Sawyer v.
Whitley, 945 F.2d 812, 815 (5th Cir. 1991) (quoting Kuhlmann v.
Wilson, 106 S.Ct. 2616, 2627 (1986) (plurality opinion)), aff'd,
112 S.Ct. 2514 (1992).
In the instant case, Johnson's only argument against
dismissing this claim is that the ends of justice would be better
served by allowing this claim to go forward because the district
court reached the wrong disposition in his first federal habeas
case. See Sanders v. United States, 83 S.Ct. 1068 (1963). The
ends of justice can provide grounds for relitigating a habeas claim
if the petitioner makes a colorable showing of factual innocence as

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1 These claims are that he was denied due process because the
indictment was fundamentally defective, that he was denied due
process because the charge allowed the jury to convict on an
offense not alleged in the indictment, and that he was denied
effective assistance of counsel.
6
required by Kuhlmann. See Kuhlmann v. Wilson, 106 S.Ct. 2616, 2627
(1986) (plurality opinion). Johnson, however, does not raise any
question as to his guilt or innocence, but simply attacks the
sufficiency of the jury charge. We also note that there are no new
factual or legal grounds urged beyond those already addressed by
the district court in Johnson's first habeas petition. If Johnson
felt that the district court handling his first federal habeas
petition erred, his remedy was to appeal, which he failed to do.
He did not have the option of waiting and presenting the same
claims to a different federal district judge. We find no error in
the district court's dismissal of this claim under Rule 9(b).
II. Abuse of the Writ
Johnson's remaining three claims1 were not raised in his first
federal habeas petition, and so Johnson is subject to the abuse of
the writ doctrine. Rule 9(b) clarifies that if new and different
grounds are alleged in a second or successive petition, the judge
may dismiss the petition if he "finds that the failure of the
petitioner to assert those grounds in a prior petition constituted
an abuse of the writ." In McCleskey v. Zant, the Supreme Court
confirmed "that a petitioner can abuse the writ by raising a claim
in a subsequent petition that he could have raised in his first,
regardless of whether the failure to raise it earlier stemmed from
a deliberate choice." 111 S.Ct. 1454, 1468 (1991). However, the

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Supreme Court also held in McCleskey that it will excuse an abuse
of the writ and consider a new claim if the petitioner can show
"cause" and "actual prejudice" for not raising the claim in the
first petition. Id. at 1470.
In order to demonstrate cause, the petitioner must show that
the failure to raise the claim in his first petition was due to
"'some objective external impediment preventing counsel from
constructing or raising a claim.'" McCleskey, 111 S.Ct. at 1472
(quoting Murray v. Carrier, 106 S.Ct. 2639, 2648 (1986)).
Sufficient external impediments include interference by government
officials and the reasonable unavailability of the factual basis
for the claim. Id. The relevant inquiry is "whether petitioner
possessed, or by reasonable means could have obtained, a sufficient
basis to allege a claim in the first petition and pursue the matter
through the habeas process." McCleskey, 111 S.Ct. at 1472. We
note that the three new grounds that Johnson presents in his second
federal habeas petition were all raised in at least one of his four
state habeas petitions. All of Johnson's state habeas petitions
were filed before his first federal habeas petition. Because these
claims had all been raised in state court before the time that
Johnson filed his first federal habeas petition, he clearly had a
sufficient basis to allege these claims in the first federal
petition and pursue the matter through the federal habeas process.
As Johnson lacks cause for failing to raise these three claims in
his first federal habeas petition, we need not consider whether he
has suffered actual prejudice.
However, even if a petitioner cannot show cause, the failure

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2 On January 30, 1992, Johnson filed with this Court a "Motion
to abate to exhaust state court remedies," requesting that this
Court abate the appeal for ninety days because he had discovered
some new claims that had not been exhausted in state court.
There is little, if anything, to recommend such a procedure.
Johnson has not given any indication as to what these claims are.
He apparently requests abatement of this appeal in order to
protect these claims from being subject to dismissal in the
future as an abuse of the writ. We note that even if we abated
this appeal, these claims would still be subject to the abuse of
the writ doctrine if he raised them in a third federal habeas
petition because Johnson has already filed one federal habeas
petition. We deny Johnson's motion.
8
to raise the claim may nonetheless be excused if he can show that
"a fundamental miscarriage of justice would result from a failure
to entertain the claim." McCleskey, 111 S.Ct. at 1470. A
fundamental miscarriage of justice implies that the "constitutional
violation has probably resulted in the conviction of one who is
actually innocent," see Murray v. Carrier, 106 S.Ct. 2639, 2649
(1986), and has been harmonized with the Kuhlmann `colorable
showing of factual innocence' requirement. See Sawyer, 945 F.2d at
816. Johnson does not argue that he is actually innocent, but
instead raises only legal errors. Moreover, nothing in the state
or federal record suggests that the claimed errors resulted in the
conviction of an innocent person. Accordingly, the actual
innocence exception does not apply, and because Johnson has not
demonstrated cause and prejudice, the district court properly
dismissed these three claims under Rule 9(b) as an abuse of the
writ.
Conclusion
Finding that the district court properly dismissed Johnson's
habeas petition under Rule 9(b), we affirm.2
AFFIRMED

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