            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                           No. 89-4883



HOSEY B. JOHNSON,
                                          Petitioner-Appellant,

                                versus

EDWARD HARGETT, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,

                                          Respondent-Appellee.



         Appeal from the United States District Court
           for the Southern District of Mississippi



                       (November 17, 1992)

Before BROWN, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     Petitioner-Appellant Hosey B. Johnson filed this habeas

corpus   petition,   his   second   in    federal      district   court,

alleging (1) prosecutorial misconduct for failure to comply

with a discovery request, and (2) ineffective assistance of

his prior federal habeas counsel for failing to raise the

prosecutorial misconduct claim in Johnson's first federal

habeas petition.      The district court dismissed Johnson's

second habeas petition as an abuse of the writ.                   Johnson

timely   appealed,   claiming    that    his   prior    federal   habeas

counsel's ineffectiveness excuses the failure to raise the
    prosecutorial misconduct claim in the first federal habeas

    petition.    We disagree and, for the reasons set forth below,

    affirm the district court.

                             I.   BACKGROUND

         In 1981, a Mississippi jury convicted Johnson of armed

    robbery.    His first prosecution ended in a mistrial.    In the

    second trial, as in the first, Johnson took the stand and

    testified that he had been convicted previously of "armed

    robbery."   In truth, he had never been tried for or convicted

    of that crime; he had merely acquiesced in the revocation of

    his parole following an arrest for armed robbery.1       Evidence

    of the nature of a parole violation would have been inadmissi-

    ble under Mississippi law.2         But because Johnson's trial

    counsel had not obtained a copy of Johnson's arrest and

    conviction record (his so-called "rap sheet")--despite having

    made an express discovery request for it--counsel did not know

    that Johnson was mistaken about his prior criminal history and

    thus could not have known that such erroneous testimony was

1
 Throughout the protracted history of this case the crime alleg-
edly committed by Johnson while on parole has been variously
referred to as armed robbery, strong armed robbery, strong arm
robbery, strong-arm robbery, and robbery by assault. Our search
of Mississippi law has discovered only the crime of robbery with
a deadly weapon. See Miss. Code Ann. 97-3-79 (Supp. 1991).
Because the formal designation of this alleged crime makes no
difference to this case's resolution, however, we refer to it
throughout as simply "armed robbery."
2
 Mississippi law prohibits inquiry into the nature of a parole
violation. Johnson v. Cabana (Johnson I), 805 F.2d 579, 582 (5th
Cir. 1986) (Wisdom, J., dissenting). Thus, in this case, poten-
tially prejudicial, excludable evidence was put before the jury.
See id.

                                    2
    inadmissible. Johnson did testify truthfully that he had been

    convicted of aggravated assault, possession of marijuana, and

    contributing to the delinquency of a minor.

         After Johnson's conviction, his trial counsel obtained

    the rap sheet and discovered that Johnson had never been

    convicted of armed robbery.   Nevertheless, trial counsel did

    not argue prosecutorial misconduct, under Brady v. Maryland,3

    on direct appeal to the Mississippi Supreme Court, which

    affirmed Johnson's conviction.4

         After the Mississippi Supreme Court denied his motion for

    leave to proceed in error coram nobis, Johnson filed a pro se

    petition for writ of habeas corpus in federal court.      The

    district court appointed new counsel to represent Johnson. In

    this habeas petition Johnson alleged that his trial counsel

    had been ineffective for failing to obtain the rap sheet--but,

    as on direct appeal, never raised prosecutorial misconduct.

    After an evidentiary hearing, the district court denied this

    petition, and a divided panel of this court affirmed the

    district court's denial of relief.5   Finally, in his petition

    for rehearing, Johnson asserted that the panel opinion did not

    address the prosecutor's affirmative duty to produce his rap

    sheet--a claim never before raised, either in district court


3
 373 U.S. 83 (1963).
4
 Johnson v. State, 416 So.2d 679 (Miss. 1982), overruled on other
grounds, 487 So.2d 213, 216 (Miss. 1986).
5
 Johnson I, 805 F.2d at 579.

                                  3
    or before this court on appeal.       Nonetheless, the rehearing

    motion was denied.

          In May of 1987, Johnson filed a pro se petition with the

    Mississippi Supreme Court to vacate his conviction under

    Mississippi's Post-Conviction Collateral Relief Act raising

    the claim of prosecutorial misconduct for failure to produce

    his rap sheet. In July of 1987, the Mississippi Supreme Court

    denied Johnson's petition without opinion.

          In November of 1987, Johnson filed the instant habeas

    petition, his second, alleging (1) prosecutorial misconduct

    for failure to comply with the discovery request for his rap

    sheet, and (2) denial of right to counsel at a pretrial

    lineup.6    The   district   court   held   that   Johnson's   second

    petition constituted an abuse of the writ and that, because

    Johnson had been represented by counsel in his prior federal

    habeas proceeding, his new petition was barred by Rule 9(b) of

    the Rules Governing Habeas Corpus Cases for failure to bring

    a claim that could have been asserted in a prior federal

    habeas petition.7

    6
     The Magistrate Judge recommended that the district court
    dismiss Johnson's claim for denial of counsel in a pretrial
    lineup for failure to exhaust state remedies. In response
    to the Magistrate Judge's recommendation, Johnson expressly
    waived this claim.
7
 28 U.S.C. § 2254 Rule 9(b) (1988).        Rule 9(b) provides:

          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

                                     4
          On appeal of the denial of Johnson's second petition,

    this court vacated the district court's order of dismissal and

    remanded the case to the district court.8        We found that the

    district court had erred in failing to give notice to Johnson

    that it was considering dismissal under Rule 9(b) and in

    failing to give him an opportunity to respond.

          On remand, the Magistrate Judge notified Johnson that

    dismissal under Rule 9(b) was being considered.            The Magis-

    trate Judge afforded Johnson an opportunity to respond by

    providing him with Model Form #9 promulgated for use in

    section 2254 cases involving a Rule 9 issue.                The form

    directed Johnson to explain why his successive petition should

    not be dismissed under Rule 9(b).

          After considering Johnson's response to Form #9, the

    Magistrate Judge assumed without finding that Johnson's second

    habeas petition presented a new claim under Rule 9(b), but

    determined, citing Jones v. Estelle,9 that Johnson had not

    provided   a   justifiable   excuse   for   failing   to   raise   the

    prosecutorial misconduct claim earlier.          Objecting to the

    Magistrate Judge's recommendation, Johnson argued that his

    prior federal habeas counsel was ineffective for failing to

    argue the prosecutorial misconduct claim in his first federal


        in a prior petition constituted an abuse of the writ.
    8
     Johnson v. Puckett (Johnson II), 860 F.2d 436 (5th Cir.
    1988).
9
 722 F.2d 159 (5th Cir. 1983) (en banc), cert. denied sub nom.
Jones v. McKaskle, 466 U.S. 976 (1984).

                                     5
habeas petition.

     The   district    court   accepted   the    Magistrate   Judge's

recommendation, and, in its order dismissing the petition,

noted that Johnson had argued ineffective assistance of prior

federal habeas counsel in response to the Magistrate Judge's

recommendation.       The   district   court    summarily   dismissed

Johnson's argument.         Citing Johnson's admission that the

prosecutorial misconduct claim existed at the time of trial,

the district court dismissed the petition under Rule 9(b) as

an abuse of the writ because Johnson failed to explain why he

could not have raised the issue of prosecutorial misconduct in

his first federal habeas petition.           Further, the district

court, citing Judge Wisdom's dissent in Johnson I, noted, in

the alternative, that Johnson's prosecutorial misconduct claim

may have been considered and rejected in his first federal

habeas petition.

     Within the time allowed for filing a notice of appeal,

Johnson filed a motion seeking a writ of mandamus, which a

panel of this court construed as a notice of appeal.

                            II.   ANALYSIS

     In this appeal Johnson asserts that the reason his Brady

claim was not included in his first habeas petition is that

his counsel on first habeas was ineffective.           As a result,

argues Johnson, the first-time presentation of his Brady claim

in this, his second federal habeas petition, could not be an

abuse of the writ.     He bases his claim of ineffective assis-


                                   6
     tance of prior federal habeas counsel on the contention that

     a competent habeas counsel would have raised the issue of

     prosecutorial misconduct in Johnson's first federal habeas

     petition.      For purposes of this case, we assume without

     deciding that the rap sheet withheld from Johnson was in fact

     Brady material.

          After we heard this appeal, the Supreme Court held, in

     McCleskey v. Zant,10 that the standard for determining whether

     a habeas petitioner has abused the writ is the same as that

     used to decide whether a petitioner's state procedural default

     should be excused. Under McCleskey, if the government has met

     its burden of pleading abuse of the writ,11 a petitioner

     bringing a new claim in a successive or second habeas petition

     must either show (1) both "cause" for not having raised the

     claim earlier and "actual prejudice resulting from the errors

     of which he complains," or, failing that, (2) that "a consti-

     tutional violation probably has resulted in the conviction of

     one innocent of the crime."12

          We find that Johnson cannot demonstrate cause for his

     failure   to   present   his   Brady   claim   in   his   first   habeas

     petition. "In order to demonstrate cause, the petitioner must


10
     113 L.Ed.2d 517 (1991).
11
     Id. at 533.
12
 Id. at 544-45. "A court need not consider whether there is
actual prejudice to the petitioner when he fails to show cause."
Sawyer v. Whitley, 945 F.2d 812, 816 (5th Cir. 1991), affirmed
1992 U.S. LEXIS 3864.

                                       7
     show that the failure to raise the claim in his first petition

     was due to some objective external factor such as interference

     by officials."13    In the context of claims that have been

     defaulted in state court because of a violation of procedural

     rules--defaults to which the identical "cause and prejudice"

     test applies--the Supreme Court has held that "counsel's

     ineffectiveness    will   constitute   cause   only   if   it   is   an

     independent constitutional violation."14        Thus, ineffective

     assistance of counsel will constitute cause only when counsel

     is constitutionally required under the Sixth Amendment.              But

     because there is no constitutional right to counsel in federal

     habeas,15 under McCleskey, no error by counsel in an habeas

     proceeding can constitute cause.16 In summary, therefore, even

     if Johnson's first federal habeas counsel were found to have

     been ineffective, that cannot be cause, under McCleskey, for


13
 Sawyer, 945 F.2d at 816, quoting Murray v. Carrier, 477 U.S.
478, 488 (1986).
14
 Coleman v. Thompson, 115 L.Ed.2d 640, 672 (1991); see also
Murray, 477 U.S. at 488 ("So long as defendant is represented by
counsel whose performance is not constitutionally ineffective
under the standard established in Strickland v. Washington, [466
U.S. 668 (1984)], we discern no inequity in requiring him to bear
the risk of attorney error that results in procedural default.").
15
 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("[T]he right
to appointed counsel extends to the first appeal of right, and no
further."). See also Wright v. West, 1992 U.S. LEXIS 3689, at 22
("[C]onstitution guarantees no right to counsel on habeas.");
Saahir v. Collins, 956 F.2d 115, 118 (5th Cir. 1992) (inmate's
pro se status not an external factor preventing claim in prior
habeas petitions).
16
 Accord Harris v. Vasquez, 949 F.2d 1497, 1514 (9th Cir. 1990)
(claiming ineffectiveness of federal habeas counsel).

                                     8
     Johnson's failure to raise the Brady claim in the first round

     of federal habeas.

          Having failed to establish cause for his default, Johnson

     may nevertheless have his Brady claim considered in this

     second federal habeas petition if he can show that "a consti-

     tutional violation probably has caused the conviction of one

     innocent of the crime."17         The Supreme Court has made clear

     that the term "actual innocence" means factual, as opposed to

     legal, innocence--"legal" innocence, of course, would arise

     whenever    a    constitutional    violation   by   itself   requires

     reversal, whereas "actual" innocence, as the Court stated in

     McCleskey, means that the person did not commit the crime.18

          McCleskey's discussion of the narrow actual innocence

     exception derives from the plurality's discussion of actual

     innocence   in    Kuhlmann   v.    Wilson.19   Kuhlmann,     in   turn,

     describes actual innocence as meaning that there is a fair

     probability that, in light of all the evidence, a reasonable

     trier could not find all the elements necessary to convict the




17
     McCleskey, 113 L.Ed.2d at 545.
18
 See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (petitioner
must show colorable claim of factual innocence even though
evidence of guilt may have been unlawfully admitted); McCleskey,
113 L.Ed.2d at 550 (petitioner cannot demonstrate alleged Massiah
violation caused conviction of innocent person); Dugger v. Adams,
489 U.S. 401, 412, n. 6 (1989) (actual innocence requires more
than showing of constitutional error, even when verdict would
have been different absent error).
19
     477 U.S. 436 (1986).

                                         9
     defendant   of   that   particular   crime.20   Thus,   under   this

     standard, Johnson would actually be innocent of the crime for

     which he was charged and convicted--armed robbery as defined

     under Mississippi law--if the jury could not have reasonably

     found that he was armed when he committed the robbery.21

          Here, we cannot find that a reasonable jury could not

     have found that Johnson committed armed robbery, even had

     Johnson's erroneous testimony about his prior armed robbery

     conviction been excluded.     Johnson testified that he received


20
 Kuhlmann, 477 U.S. at 455, n. 17, cited in Sawyer, 1992 U.S.
LEXIS at 13, n. 5.
21
 The concept of "innocence of the crime" means that the consti-
tutional violation resulted in the conviction of one who was
innocent of the particular crime for which he or she was charged
and convicted--not that the petitioner was not present at the
scene of the offense. Kuhlmann's key language is largely a quote
from Judge Friendly's article advocating an actual innocence
requirement in habeas:

        A prisoner does not make a colorable showing of innocence
        "by showing that he might not, or even would not, have been
        convicted in the absence of evidence claimed to have been
        unconstitutionally obtained." Rather, the prisoner must
        "show a fair probability that, in light of all the evidence,
        including that alleged to have been illegally admitted (with
        due regard to any unreliability of it) and evidence tenably
        claimed to have been wrongly excluded or to have become
        available only after the trial, the trier of the facts would
        have entertained a reasonable doubt of his guilt." Thus,
        the question whether the prisoner can make the requisite
        showing must be determined by reference to all probative
        evidence of guilt or innocence.

91 L.Ed.2d at 381 n. 17 (internal citations omitted; emphasis in
original), citing Judge Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,
160 (1970). This seems to us to be akin to the standard in
Jackson v. Virginia, 443 U.S. 307 (1979), under which a person
cannot be guilty of a crime if a reasonable jury would entertain
a reasonable doubt about any element of the crime.

                                     10
the stolen    automatic    teller    cards   from   a   friend.   This

statement conflicts, however, with the victim's identification

of Johnson and testimony that Johnson approached and robbed

him of his wallet at gunpoint.             Thus, even in the total

absence of Johnson's erroneous testimony of a prior conviction

for armed robbery, the eyewitness testimony of Johnson's use

of a gun is more than sufficient to enable a reasonable jury

to return a guilty verdict of armed robbery.

                          III.    CONCLUSION

     We find that the district court correctly determined that

Rule 9(b) bars consideration of Johnson's claim of prosecuto-

rial misconduct raised for the first time in this, his second,

federal habeas petition because that claim could have been

raised previously.    Ineffective assistance of first habeas

counsel cannot be "cause" for Johnson's failure to assert

prosecutorial misconduct in his first habeas petition as there

is no constitutional right to counsel in habeas.            Neither do

we find that Johnson has a claim of actual innocence, which,

if established, would allow us to address the merits of

Johnson's new claim of prosecutorial misconduct.           Even absent

the erroneous evidence of Johnson's prior conviction for armed

robbery, a reasonable jury could have based a verdict of armed

robbery under Mississippi law on the victim's testimony that

Johnson was armed when he committed the robbery.           If true, the

acts ascribed to the state prosecutor--deliberate use of false

inculpatory   testimony    from     this   undereducated    defendant,


                                    11
represented by appointed counsel whose ignorance of the error

of   his   client's    inculpatory       testimony    resulted   from   the

prosecutor's purposeful withholding of discoverable evidence--

would probably constitute good cause for reversal.               Neverthe-

less, for Johnson to raise that issue for the first time in

his second habeas corpus petition is an abuse of the writ

under the circumstances of this case. Therefore, the judgment

of the district court denying Johnson's petition is

AFFIRMED.



JOHN R. BROWN, Circuit Judge, dissenting.



      Despite the exhaustive opinion of Judge Wiener, I cannot

believe that under the guidance of the Supreme Court the law

has gotten    to     the   point   where    federal    courts    in   habeas

proceedings can be denied the opportunity to hear and decide

whether    three    distinct,      now    unquestioned,   constitutional

errors resulted in a sentence for life.

      The frustrations of Tantalus pale in comparison to the

exasperation Hosey Johnson must have felt as, time and again,

his Sisyphean pleas fell on unhearing (or at least unlisten-

ing) ears, a result of the shortcomings of those charged with

seeing to it that Johnson received fairness under our system

of justice.        As his odyssey through the state and federal

courts unfolds below, a picture emerges of step after inept

step, fostered by hypertechnicalities, producing a series of


                                     12
hollow "days in court," devoid of real substance, never

considering     the   merits   of   Johnson's     facially   meritorious

claims.

     The central undisputed fact is that twice--first in a

mistrial and then in a full trial--Johnson was permitted to

prejudice himself by his own self-condemning but mistaken

testimony solely because his trial counsel twice did not

bother to follow through on his own discovery request and

because   the    prosecutor    twice    sat   mute   during    Johnson's

mistaken testimony, knowing full well that he (the prosecutor)

had withheld discoverable information the delivery of which

would have prevented Johnson's own self-destructive testimony.

That such an injustice was allowed to happen in the first

place is bad enough; that repeated efforts to have such

improprieties     repudiated    and    expunged    through    direct   and

collateral appeals only to be frustrated procedurally--most

recently as an "abuse of the writ"--cries out for correction.

     Johnson erroneously testified during his trial that he

had been convicted of strong armed robbery. The misconduct of

the prosecutor in failing to deliver Johnson's rap sheet to

trial counsel might well have affected the jury's verdict on

the guilt-innocence issue, and, even more likely, could have

affected the jury's decision to assess life imprisonment.

     I would REVERSE the judgment of the district court

dismissing Johnson's second habeas petition, and REMAND this

case for such action as the court would then direct.

     I, therefore, dissent.
14
