98 F. 3d 1548 - Farmer v. E.k. McDaniel

This appeal requires us to consider a novel, but narrow question: whether an amended third habeas corpus petition by a prisoner in state custody may be subject to dismissal for abuse of the writ even though prior petitions were dismissed for failure to exhaust and thus were not reviewed on the merits.1 The district court thought not, but the State of Nevada wants the opportunity to argue that Robert Jeffrey Farmer has filed a series of petitions with new, unexhausted claims to avoid (and delay for more than seven years) a review of his sentence and conviction in federal court. It has timely appealed a judgment dismissing Farmer's amended third petition pursuant to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Although Farmer submits that dismissal of his amended third petition without prejudice is not a final, appealable order, and that the state lacks standing to appeal from an order in its favor, we think otherwise. As a practical matter, dismissal of Farmer's petition put an end to this action in the district court and, despite prevailing to the extent that Farmer is required to exhaust claims that the state contends were unexhausted, Nevada did not get all that it wanted--dismissal with prejudice of claims asserted for abuse of the writ--but instead faces the prospect of further litigation on these claims in a different forum. For this reason the State has standing to appeal from that part of the order that is unfavorable to it. Having jurisdiction, we conclude that when the state alleges that the grounds for relief alleged in a second or subsequent petition are "new and different" under Rule 9(b) of the Federal Habeas Corpus Rules, abuse of the writ analysis is not foreclosed as a matter of law solely because prior petitions have not been reviewed on the merits. Rather, this should simply be an important factor that informs the district court's discretion in applying the abuse of the writ doctrine. We therefore vacate the district court's judgment and remand for it to consider whether any of the grounds alleged in the amended petition are "new and different" from those grounds alleged in Farmer's second petition and, if so, whether Farmer's failure to assert those grounds in his prior (second) petition was an abuse of the writ.

* Farmer murdered a man the night of January 18-19, 1982. On March 26, 1984, he pleaded guilty to murder in the first degree and was sentenced to death. The Nevada Supreme Court affirmed his conviction and sentence August 27, 1985, Farmer v. State of Nevada, 101 Nev. 419, 705 P.2d 149 (1985), and the United States Supreme Court denied his petition for certiorari, Farmer v. Nevada, 476 U.S. 1130, 106 S.Ct. 1999, 90 L.Ed.2d 679 (1986).

On September 16, 1986, Farmer filed a petition for a writ of habeas corpus in the state trial court and a week later, filed his first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court. The federal petition, filed with the assistance of counsel, sought a stay of execution, which the district court entered. The petition also, however, alleged different grounds for relief from those being pursued in state court, which prompted the district court to warn Farmer that his failure to assert grounds known to him in his federal petition may bar the assertion of such grounds in a future federal petition as an abuse of the writ.2 As a result, Farmer moved to dismiss the petition without prejudice. The district court so ordered February 6, 1987, to permit Farmer to exhaust state remedies. Although the court also vacated the stay of execution, it appears that no new date was set while state habeas proceedings were pending.

The Nevada Supreme Court ultimately refused to address the merits of Farmer's claims because they "have been either procedurally barred, or [ ] Farmer has failed to sustain his burden of proof or show prejudice." Farmer v. Director, Nevada Dept. of Prisons, 104 Nev. 856, 809 P.2d 603 (1988) (unpublished disposition). The United States Supreme Court denied certiorari February 27, 1989. Farmer v. Sumner, 489 U.S. 1060, 109 S.Ct. 1331, 103 L.Ed.2d 599 (1989).

Farmer filed his second federal habeas petition April 7, 1989. The district court stayed Farmer's rescheduled execution date of May 2, 1989; appointed new counsel to represent him in the federal proceedings; and again cautioned Farmer that if he "fails to include all possible grounds for relief, he may later be precluded from raising the previously omitted grounds because the omission may be considered an abuse of the writ" under Rule 9(b). On July 13, 1989, Farmer moved to dismiss his second petition without prejudice because "he has claims to raise which have not heretofore been raised in state court, and therefore could not raise in this petition due to the exhaustion of state remedies requirement." Nevada opposed dismissal on the ground that the claims Farmer wanted to exhaust in the state court either were not legitimate constitutional claims or were procedurally barred. Meanwhile, Farmer asked the court to hold the federal proceeding in abeyance rather than dismiss it, in the event the state court refused to issue a stay. However, the court again dismissed Farmer's petition without prejudice under Rose v. Lundy,3 and dissolved the stay of execution.

Farmer then started a new round of state proceedings, which ended when the Nevada Supreme Court dismissed his appeal from the dismissal of his petition for post-conviction relief. On May 11, 1993, Farmer filed his third federal habeas petition. Nevada moved to dismiss the petition with prejudice as an abuse of the writ under Rule 9(b), and also raised exhaustion and procedural default defenses. The district court denied Nevada's motion to dismiss as premature; rejected Nevada's abuse of the writ defense since Farmer's two prior federal habeas petitions "were dismissed by the court because they included unexhausted claims; they were not dismissed on the merits of those claims"; and, responding to McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), allowed Farmer six months to amend his third federal petition setting forth "all possible grounds for relief."

Pursuant to this order, Farmer filed his amended third petition for writ of habeas corpus August 15, 1994. He alleged that 10 of its 27 claims had "arguably" been exhausted, but that none had been deliberately withheld or waived. Contending that Rule 9(b) covers situations in which new claims are raised which were not raised in the first petition, and relying on the decision of the United States Supreme Court in McCleskey, Nevada moved to dismiss the petition with prejudice on the ground that the court was obliged to conduct an abuse of the writ inquiry in light of Farmer's writ history (which, in the state's view, would show that the amended third petition was filed only to vex, harass and delay, and that the new claims of error could and should have been exhausted in accordance with the court's prior orders) before it reached whatever Rose v. Lundy problems continued to lurk in the third amended petition. The state also argued that the unexhausted claims were procedurally barred, and conclusory. As before, Farmer requested dismissal without prejudice so that he could return to state court to exhaust his new and unexhausted claims. Noting that all of the state's other arguments were addressed when its first motion to dismiss was denied, the district court again dismissed pursuant to Rose v. Lundy, advising that "this will be the only opportunity to return to state court to exhaust any unexhausted grounds."4

Nevada filed a timely notice of appeal from the district court's "Order Dismissing Mixed Petition and the Judgment in a Civil Case entered June 27, 1995 as to all issues of law."5 Farmer moved to dismiss for lack of jurisdiction. We consider this motion first.

Farmer challenges our jurisdiction because the district court's disposition is not a final order, and because Nevada is not an aggrieved party inasmuch as dismissal on exhaustion grounds favors the state. He argues that the order and judgment dismissed only the amended petition, not the underlying action, and that even if the state prevailed on its abuse of the writ theory, the result would be the dismissal with prejudice of only some of the claims in the amended petition. As dismissal of some, but not all, claims in a habeas petition is not a final order, Farmer suggests, the order appealed from is not a final decision. Nevada counters that it does seek review of a final order since the district court entered a judgment dismissing the action, the state will lose its right to have this petition decided unless we consider its appeal, and the practical effect of the court's order is to grant Farmer a stay of indeterminate length. Farmer contends that regardless, Nevada lacks standing since the order it seeks to appeal granted its own motion to dismiss.

* "In a habeas corpus proceeding before a circuit or district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had." 28 U.S.C. § 2253 (emphasis added); see also Blazak v. Ricketts, 971 F.2d 1408, 1410 (9th Cir.1992) ("The settled rule in civil proceedings that we have jurisdiction over only final judgments applies to habeas proceedings."). The Supreme Court has instructed that "the finality requirement should be given a practical rather than a technical interpretation." United States v. Lee, 786 F.2d 951, 956 (9th Cir.1986) (citing Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 310-11, 13 L.Ed.2d 199 (1964)). A final order is generally one that "ends the litigation and leaves nothing more for the court to do," id. (citations omitted), such that, "[u]nless the district court's order is overturned on appeal, nothing is left for the district court but to ensure the execution of its judgment," Blazak, 971 F.2d at 1411. Similarly, "an order which effectively sends a party out of court is appealable," Lee, 786 F.2d at 956; see also Herrington v. County of Sonoma, 706 F.2d 938, 939 (9th Cir.1983) (same), and "[a] decision is final for purposes of appeal if an appeal is the only method of obtaining review," Lee, 786 F.2d at 956.

We do not agree with Farmer's argument that the district court dismissed only the petition. In terms, its order and judgment dismissed the action, and each of Farmer's three federal habeas petitions launched a new action, with a new number. Proud v. United States, 704 F.2d 1099, 1100 (9th Cir.1983) (per curiam), upon which Farmer relies, is inapposite because the district court in Proud dismissed the complaint but not the action.

Regardless, Farmer contends, an order dismissing a complaint without prejudice is not final because it contemplates a new or amended filing. However, a dismissal "without prejudice" can be just as final as one "with prejudice" if it is "intended to end the litigation in the court involved but not to act as an adjudication on the merits or to bar the filing of a similar action in another court." McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir.1992). Examples of such orders abound, including analogous dismissals for failure to exhaust administrative remedies, see United States v. Orr Water Ditch Co., 914 F.2d 1302, 1306-07 (9th Cir.1990), and for failure to exhaust the grievance procedures under a collective bargaining agreement, see Ramirez v. Fox Television Station, Inc., 998 F.2d 743, 746-47 (9th Cir.1993). Dismissal of Farmer's amended third petition for failure to exhaust effectively terminated the litigation in district court, sending the parties out of the federal system. See Quackenbush v. Allstate Insurance Co., --- U.S. ----, ----, 116 S.Ct. 1712, 1716, 135 L.Ed.2d 1 (1996) (order remanding on abstention grounds is appealable as a final order because "it puts the litigants in this case effectively out of [federal] court"). This leaves nothing for the district court to do unless and until Farmer exhausts state court remedies and files a new action in federal court.

Nor do we believe that finality of the district court's order in this case can hinge on what might have happened if the court had considered the state's motion to dismiss for abuse of the writ, dismissing some but not all of the claims, and whether that order would be final. Farmer's reliance on Bermudez v. Smith, 797 F.2d 108 (2d Cir.1986), where the district court ordered dismissal of only four of seven claims alleged in the prisoner's habeas petition and the Second Circuit held that such an order of partial dismissal wasn't final, is misplaced because here the district court dismissed Farmer's entire petition. It is dismissal of the entire petition that is the final order, not the court's ruling (one way or the other) on the abuse of the writ issue.

Farmer finally contends that even though an order dismissing a petition as a "mixed" petition is a final order for jurisdictional purposes when it is the prisoner who is appealing, see, e.g., Weaver v. Foltz, 888 F.2d 1097 (6th Cir.1989) (reversing district court order dismissing a mixed petition, and directing the court on remand to address the merits of the exhausted claims); Wise v. Fulcomer, 958 F.2d 30 (3rd Cir.1992) (vacating district court order dismissing habeas petition for failure to exhaust state remedies, and directing the court on remand to decide whether the petition constitutes an abuse of the writ); see also 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 35.1, at 1050 (2d ed. 1994) ("[A]n order denying all the claims for relief in the petition or dismissing the petition as a whole ... [is] appealable."), it is final only when the prisoner appeals from it. This cannot be. An order is either final or not final, without regard to which party asks the court of appeals to review it. Our decision in Confederated Salish v. Simonich, 29 F.3d 1398 (9th Cir.1994), on which Farmer relies, does not suggest otherwise. We held in Simonich that an order denying a motion to dismiss under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), was not a final order. Simonich thus turns on the unremarkable rule that some orders are final--such as an "order abstaining under Younger and dismissing the case"--while some are not--like a district court's order that it "will not abstain under Younger and dismiss the case." Id. at 1401.6

We therefore hold that the district court's order dismissing Farmer's amended third habeas petition for his failure to exhaust state avenues of relief is a final order.7

Notwithstanding an appealable final order, an appeal may be taken only by those who have standing. Farmer contends that Nevada lacks standing, arguing only that this case parallels Dolenc v. Love, 40 F.3d 656 (3d Cir.1994). There, the Third Circuit dismissed Pennsylvania's appeal from an order that dismissed Dolenc's fourth habeas petition on exhaustion grounds. Pennsylvania complained on appeal that a renewed abuse of the writ plea to Dolenc's anticipated fifth petition would be barred on grounds of collateral estoppel or law of the case. Noting that Pennsylvania would have standing if it were correct that the district court's ruling would operate as law of the case, the Third Circuit couldn't see why the district court would be precluded from re-examining the issue. Id. at 657-58. The posture of this case and the position of the state on this appeal are different, however. Unlike the district court in Dolenc, the district court here did not rule on the merits of the state's motion to dismiss for abuse of the writ but rather concluded that it could not reach that issue as a matter of law because it had not previously disposed of Farmer's claims on the merits. Nevada complains on appeal that this ruling prevents it from getting a ruling on the merits of the abuse of the writ issue so long as Farmer continues to file unexhausted or mixed petitions, and prevented it from arguing for a dismissal with prejudice of Farmer's amended third petition. As it will never have another opportunity to have that decision reviewed, the state is sufficiently aggrieved by the district court's adverse ruling to have standing to appeal. See, e.g., Hoover v. Switlik Parachute Co., 663 F.2d 964, 966 (9th Cir.1981) (a defendant has standing to appeal from the grant of summary judgment for a codefendant, because in granting summary judgment the district court made a subsidiary ruling adverse to the appealing defendant); LaBuhn v. Bulkmatic Transp. Co., 865 F.2d 119, 121-22 (7th Cir.1988) ("For a prevailing defendant to appeal is unusual but not impermissible. Obviously, you can't appeal from a decision that is entirely in your favor.... But you can appeal from the parts of a generally favorable order that are unfavorable to you...."); Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980).

We therefore conclude that we have jurisdiction, and now proceed to the merits.

Nevada first argues that presentation of unexhausted claims in the amended third petition constituted an abuse of the writ and that the district court erred by failing to dismiss the petition as a whole as an abuse of the writ. We reject this argument, as it misapprehends the discretion that is reposed in district courts to decide whether there has been an abuse of the writ on a case-by-case basis. See, e.g., Howard v. Lewis, 905 F.2d 1318, 1321 (9th Cir.1990) (review of decision to deny consideration of habeas petition on the merits is for abuse of discretion); Habeas Corpus Rule 9, Advisory Committee Notes, at 801 ("bar set up by subdivision (b) [of Rule 9] is not one of rigid application, but rather is within the discretion of the courts on a case-by-case basis"). The state further asks us to require the district court to find that the presentation of unexhausted claims in the amended third petition is an abuse of the writ. This we also will not do. Rather, we consider only the narrow legal question of whether the district court correctly concluded that "although the McCleskey case is intolera[nt] of subsequent petitions, it deals with subsequent petitions after the first petition has been dismissed on the merits."

On this point, Nevada contends that Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.A. foll. § 2254, covers those situations in which new claims are raised which were not raised in the first petition if the judge finds that the failure to assert those grounds in a prior petition constituted an abuse of the writ. While the state does not disagree that Farmer's amended third petition contains unexhausted claims that make it subject to dismissal under Rose v. Lundy, it argues that inquiry had to be made into whether the petition constitutes an abuse of the writ or is otherwise subject to dismissal with prejudice as a threshold matter before the district court could dismiss for lack of exhaustion. Nevada maintains that it adequately pled abuse of the writ by noting Farmer's prior writ history, which indicates that all 27 of the claims presented in Farmer's amended third petition appeared for the first time in that petition. From this, it posits that the amended third petition was filed only to vex, harass and delay the final adjudication of Farmer's state court judgment.

Farmer counters that the district court properly refused to dismiss his amended third petition because it is not a "second or successive one" within the meaning of 28 U.S.C. § 2244(b) and Rule 9(b). Instead, he submits, the defense of abuse of the writ arises only when there has been an adjudication of a previous federal petition on the merits.

* "We look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress." Alarcon v. Keller Indus., Inc., 27 F.3d 386, 389 (9th Cir.1994) (citations omitted). Rule 9(b) provides:

Successive Petitions. 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.

By its terms, Rule 9(b) appears to contemplate two possibilities for dismissal of a second or successive petition: one, if the judge finds that it does not allege new or different grounds and the prior determination was on the merits; the other, if new and different grounds are alleged and the judge finds that the petitioner's failure to assert them in a prior petition was an abuse of the writ. Only the second clause is at issue here, as there is no contention in this case that the same grounds are alleged in the amended third petition as in any prior petition, or that there has been a prior merits determination on any of those grounds that precludes reexamination in the amended third petition.

Farmer says that Rule 9(b)'s reference to "second or successive petition" incorporates the concept of a prior merits determination into both clauses. But reading the Rule in this way would render the requirement in the first clause that "the prior determination was on the merits" redundant. We have difficulty reading the second clause as if it, too, includes a requirement that the prior petition (which did not include the grounds alleged in the subsequent petition) be a "prior determination on the merits." Literally, dismissal under this prong may occur if only two things are found: (1) new and different grounds are alleged and (2) the failure to assert those grounds in a prior petition constituted an abuse of the writ. Had Congress intended to limit the bases for dismissal of "new and different" grounds other than by what constitutes an abuse of the writ, it could have done so either by making the entire Rule applicable only if "the prior determination was on the merits" or by adding the phrase "determined on the merits" after the words "prior petition." Given how it is actually written, we cannot say that Rule 9(b) itself requires the prior petition that triggers abuse of the writ analysis to be one that was resolved on the merits.

The Advisory Committee Notes to Rule 9(b) indicate that the Rule distinguishes between "same ground" and "new and different" ground petitions on this basis. Habeas Corpus Rule, Advisory Committee Notes, 28 U.S.C.A. foll. § 2254, at 798. As the Notes explain:

Subdivision (b) deals with the problem of successive habeas petitions. It provides that the judge may dismiss a second or successive petition (1) if it fails to allege new or different grounds for relief or (2) if new or different grounds for relief are alleged and the judge finds the failure of the petitioner to assert those grounds in a prior petition is inexcusable.

In Sanders v. United States, 373 U.S. 1 [83 S.Ct. 1068, 10 L.Ed.2d 148] (1963), the court, in dealing with the problem of successive applications, stated:9

Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. [Emphasis added.]

373 U.S. at 15 [83 S.Ct. at 1077]

The requirement is that the prior determination of the same ground has been on the merits. This requirement is in 28 U.S.C. § 2244(b) and has been reiterated in many cases since Sanders. ...

With reference to a successive application asserting a new ground or one not previously decided on the merits, the court in Sanders noted:

In either case, full consideration of the merits of the new application can be avoided [only] if there has been an abuse of the writ * * * and this the Government has the burden of pleading. * * *

Thus, for example, if 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 17-18 [83 S.Ct. at 1078]

Subdivision (b) has incorporated this principle and requires that the judge find petitioner's failure to have asserted the new grounds in the prior petition to be inexcusable.

. . . . .

Subdivision (b) is consistent with the important and well established purpose of habeas corpus. It does not eliminate a remedy to which the petitioner is rightfully entitled. However, in Sanders, the court pointed out:

Nothing 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]

Id. at 799-800.

Although Farmer correctly argues that a habeas petitioner may not be deprived of a hearing on the merits of his first federal habeas case for "equitable" reasons not founded in statute, rule and precedent, Lonchar v. Thomas, --- U.S. ----, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996), he offers no grammatically sensible way that Rule 9(b) can be read to treat the first prong--providing for dismissal for failing to allege "new and different grounds" when the prior determination was on the merits--the same as the second prong--providing for dismissal for alleging "new and different grounds" when failing to do so in a prior petition was abusive. Nor are we persuaded that interpreting Rule 9(b) as the Advisory Committee does would impermissibly conflict with § 2244(b), as Farmer suggests. While § 2244(b) is predicated on an adjudication of the merits,10 Rule 9(b) was also enacted by Congress, after § 2244(b). 28 U.S.C. § 2244(b) (enacted in 1966); Habeas Corpus Rule 9(b) (promulgated in 1976); see also Ritchie v. Eberhart, 11 F.3d 587, 593 n. 3 (6th Cir.1993) ("The abuse of the writ doctrine is codified ... in two enactments of equal status: Rule 9(b) and 28 U.S.C. § 2244(b)."), cert. denied, 510 U.S. 1135, 114 S.Ct. 1111, 127 L.Ed.2d 422 (1994). To the extent there is a conflict, the most recently passed statute or rule prevails. See Boudette v. Barnette, 923 F.2d 754, 757 (9th Cir.1991) (holding that a federal rule of civil procedure prevails over an earlier passed but conflicting United States Code section because "[w]hen two statutes conflict the general rule is that the statute last in time prevails as the most recent expression of the legislature's will") (citation omitted); International Union, United Auto., Aerospace & Agr. Implement Workers of America, Local 737 v. Auto Glass Employees Fed. Credit Union, 72 F.3d 1243, 1247 (6th Cir.1996) (explaining that the basis for the rule that a later passed statute controls is the "settled principle of statutory construction that when Congress drafts a statute, courts presume that it does so with full knowledge of the existing law").11

As we read both its text and its history, therefore, Rule 9(b) permits the district court to dismiss a second or successive petition if new and different grounds are alleged and the judge finds the failure of the petitioner to assert those grounds in a prior petition, whether or not resolved on the merits, was abusive.

Nevada contends that Farmer has no authority for his position that abuse of the writ analysis is inapplicable unless a prior petition has been determined on the merits, and relies on Sanders, McCleskey, and Bonin v. Vasquez, 807 F.Supp. 586 (C.D.Cal.1992), to argue that Farmer's second return from state court with unexhausted claims and no exhausted claims is abusive. However, the state devotes most of its argument to inexcusable neglect, unreasonable delay, and Farmer's inability to meet Nevada's cause and prejudice standard upon return to state court. These arguments have nothing to do with whether Nevada's motion to dismiss for abuse of the writ was premature, as the district court concluded, and we therefore do not address them.12 More to the point, Farmer argues that McCleskey abuse occurs only after a federal court addresses the merits of a previous petition, and that this circuit and others, have so held. We disagree.

So far as we are aware, there is no dispositive authority one way or the other, though Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) comes quite close. As the Advisory Committee Notes to Rule 9(b) reflect,13 the Court in Sanders distinguished two principles: a successive application on a ground heard and denied on the merits in a prior application, and abuse of the writ.14 Id. at 10, 15-19, 83 S.Ct. at 1074, 1077-79. As the Court explained with respect to the successive application claimed to be an abuse of the writ:

No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra [having to do with successive applications on grounds previously heard and determined on the merits] cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading.

Id. at 17, 83 S.Ct. at 1078. Sanders's initial petition--like Farmer's--had not been denied on the merits.15 Id. at 19, 83 S.Ct. at 1079. Sanders's second application alleged a new and different ground for relief (mental incompetency), which the district court denied without a hearing on the footing that " 'there is no reason given, or apparent to this Court, why petitioner could not, and should not, have raised the issue of mental incompetency at the time of his first motion....' " Id. at 6, 83 S.Ct. at 1072. While holding that a hearing on the second application was required, id. at 20, 83 S.Ct. at 1079-80, the Court noted that "it will be open to the [government] to attempt to show that petitioner's failure to claim mental incompetency in his first motion was an abuse of the motion remedy, within the principles of Wong Doo and Price v. Johnston, disentitling him to a hearing on the merits." Id. at 21, 83 S.Ct. at 1080.16 This could not have been an available option if, as Farmer contends, abuse of the writ cannot be triggered unless there has been a prior determination on the merits.

By contrast, the cases that Farmer calls to our attention have to do with subsequent petitions that involved challenges based on the "same ground," or "successive," part of Sanders.17 These cases naturally cite, and rely on, the rules applicable to "same ground" successive petitions, including the requirement that there be a prior determination on the merits of the same ground against the petitioner. Sanders, 373 U.S. at 15, 83 S.Ct. at 1077. None limits the "new and different," or abusive part of Sanders to an earlier merits resolution; indeed, one case upon which Farmer relies, Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir.1989), suggests that a petitioner can abuse the writ even though there has been no prior determination on the merits of a federal petition. Hamilton's first federal habeas petition was dismissed on the merits, but we reversed and ordered the petition dismissed without prejudice for failure to exhaust. Hamilton then brought a second federal habeas petition that alleged a new claim for relief. The district court rejected the state's alternative contentions that the petition should be dismissed as successive or abusive, and instead decided the merits of Hamilton's new claim against him without examining the state court record. Id. at 1470. We held that there was no same ground or successive petition problem, because Hamilton's first petition was dismissed without prejudice for failure to exhaust, and therefore "no federal court has yet addressed the merits of [Hamilton's] claim." Id. at 1473. But we also recognized that the absence of a prior merits determination wasn't dispositive of the state's alternative "abusive petition" argument, holding instead that the record did not support a finding that an abuse had in fact occurred:

A federal court need not consider habeas claims previously unlitigated in federal court if it determines that the petitioner (1) made a conscious decision deliberately to withhold them from a prior petition, (2) is pursuing needless piecemeal litigation, or (3) has raised the claims only to vex, harass, or delay. Where there is no affirmative indication in the record that the petitioner made a conscious decision deliberately to withhold his claim, proceed by piecemeal litigation, to vex or harass or annoy the court or the state, a second petition raising a new claim is not an abuse of the writ.

The state has presented no evidence that any of the factors outlined in Sanders are present. Moreover, there is nothing in the history of this case to indicate that Hamilton deliberately withheld his claim in the hope of being granted two hearings instead of one.

Id. (citations omitted).

Farmer also argues that the state must allege that there was a prior proceeding on the merits as part of its burden to invoke the abuse of the writ doctrine, citing Watkins v. Champion, 39 F.3d 273 (10th Cir.1994). It is not clear to us where this comes from, as Watkins simply says that, in accordance with McCleskey, the government bears the burden of pleading abuse of the writ, id. at 275, which the government satisfies if it "notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ." McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470.

More critically, Farmer contends that McCleskey itself incorporates the necessity of a prior proceeding on the merits of a previous federal petition based on the emphasis that the Court gives to the burdens of " 'reexamination of a conviction' following a first round of federal habeas litigation," as he puts it, and to "endless repetition of inquiry into facts and law," as the Court notes in quoting Bator, "Finality in Criminal Law and Federal Habeas Corpus for State Prisoners", 76 Harv.L.Rev. 441, 452-453 (1963). McCleskey, 499 U.S. at 491-92, 111 S.Ct. at 1468-69.18 From these concerns Farmer infers that the policies prohibiting repetitive examination of a state conviction do not apply when there has been no initial examination of the merits of the case by the federal court.

We do not read McCleskey as speaking to the point one way or the other. While there had been a prior determination on the merits in McCleskey's case, that wasn't a factor in the Court's decision about what standard should govern in abuse of the writ cases. But the Court's explanation for why it was appropriate to meld the standards for procedural default and abuse of the writ, and its focus on the petitioner's conduct, undermines the premise of Farmer's argument:

The prohibition against adjudication in federal habeas corpus of claims defaulted in state court is similar in purpose and design to the abuse-of-the-writ doctrine, which in general prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding. The terms "abuse of the writ" and "inexcusable neglect," on the one hand, and "procedural default," on the other, imply a background norm of procedural regularity binding on the petitioner. This explains the presumption against habeas adjudication both of claims defaulted in state court and of claims defaulted in the first round of federal habeas. A federal habeas court's power to excuse these types of defaulted claims derives from the court's equitable discretion.... For these reasons, both the abuse-of-the-writ doctrine and our procedural default jurisprudence concentrate on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time.

Id. at 490, 111 S.Ct. at 1468 (citations omitted).

So does the Court's formulation of the question in abuse of the writ cases:

Abuse-of-the-writ doctrine examines petitioner's conduct. The question 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. The requirement of cause in the abuse-of-the-writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.

Id. at 498, 111 S.Ct. at 1472 (citations omitted). We thus do not agree with Farmer that McCleskey itself indicates that abuse can only occur as a matter of law after a federal court has addressed the merits of a previous petition.

We hold that a district court is not precluded as a matter of law from considering whether a petitioner has abused the writ by alleging in a subsequent federal habeas petition new and different grounds from those alleged in a prior federal habeas petition, whether or not that prior petition was determined on the merits. However, we emphasize how narrow this holding is. It does not mean that Farmer will never have any of his grounds heard on the merits in federal court. Claims that were presented in his initial and second federal habeas petitions but were not determined on the merits because they were unexhausted, are clearly outside Rule 9(b). Nevada acknowledges that all of Farmer's exhausted claims presented in the amended third petition should be heard, no doubt recognizing that a "single" federal petition filed after Rose v. Lundy exhaustion cannot be an abuse of the writ, as it is the very reason for dismissing the petition for failure to exhaust in the first place. Farmer's claims may not in any event be "new and different," or abusive. In short, what we hold, and all that we hold, is that the district court was not precluded as matter of law from considering whether Farmer's conduct in failing to allege grounds in prior petitions that he alleged the third time around (if he did) was abusive solely on account of the fact that his prior petitions were not reviewed on the merits.

Rather, the possibilities are as Sanders first articulated, Rule 9(b) sets out, the Advisory Committee Notes reflect, and as the Court restated in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992):

Unless a habeas petitioner shows cause and prejudice, a court may not reach the merits of: (a) successive claims which raise grounds identical to grounds heard and decided on the merits in a previous petition; (b) new claims, not previously raised which constitute an abuse of the writ; or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims. These cases are premised on our concerns for the finality of state judgments of conviction, and the significant costs of federal habeas review.

Id. at 338, 112 S.Ct. at 2518 (internal quotation and citations omitted).

Accordingly, we reverse because Rule 9(b) and McCleskey do not foreclose entertaining the state's motion to dismiss for abuse of the writ solely because Farmer's prior petition had not been determined on the merits, as the district court concluded. We therefore vacate its order dismissing Farmer's amended third petition, and remand for it to consider the state's motion to dismiss for abuse of the writ. However, we express no opinion on whether the grounds alleged in Farmer's amended third petition are "new and different," or if they are, whether there has been any abuse of the writ. That is entirely for the district court to decide, in its discretion.19

REVERSED; VACATED AND REMANDED.

SCHROEDER, Circuit Judge, concurring in part and dissenting in part:

I concur in the holding that we have jurisdiction to consider the appeal, but I respectfully dissent from the majority's remand to the district court to consider possible abuse of the writ. The majority holds that inclusion of unexhausted claims in petitioner's third amended petition may constitute abuse, even though Farmer has never had a determination on the merits of any of his habeas claims. In my view, the district court has skillfully negotiated the hairpin turns in prevailing habeas corpus jurisprudence over the past decade in order to bring Farmer to the point where he can bring all of his claims to resolution in one petition. I would affirm the district court's order denying Nevada's motion to dismiss for abuse of the writ, for two reasons.

First, even assuming the majority is correct in holding that there can be an abuse of the writ pursuant to Rule 9(b) of the Federal Habeas Corpus Rules when there has never been a prior adjudication on the merits, this particular case is not one in which such a finding of abuse could be made. There is no doubt Farmer's first two petitions containing unexhausted claims were properly dismissed under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Pursuant to this court's then-controlling decision in Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir.1988), the filing of a later petition in order to raise claims that had not been exhausted at the time a first federal petition was adjudicated could not, as a matter of law, have constituted an abuse of the writ because there had been no deliberate withholding of claims. Thus, after the dismissal of the second petition in this case, Farmer could have proceeded to have only his exhausted claims decided in a new petition without forfeiting unexhausted claims.

By the time Farmer filed his third petition, that law had changed. The Supreme Court had held in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) that a petitioner who filed a second § 2254 petition raising a new claim not decided in his earlier petition had abused the writ. The petitioner would not be permitted to obtain a hearing on the merits of the new claim unless he established "cause and prejudice." The district court therefore correctly recognized that under McCleskey, once Farmer obtained a hearing on the merits of any of his claims, he could no longer easily return to federal court on a new petition raising claims that were not exhausted when the earlier petition was filed. This is why the district court gave Farmer six months to file a new federal petition raising all claims.

When that third amended petition still contained unexhausted claims that would require dismissal pursuant to Rose v. Lundy, the district court wisely, in my view, decided the proper course was to dismiss without prejudice and place strict time limits on the filing of a state court petition in order to allow the state courts to determine whether the unexhausted claims were valid, invalid or, as Nevada had insisted, procedurally barred.

Both the filing of the third amended complaint and the district court's dismissal of it without prejudice were done in accordance with prevailing law in order to satisfy the requirements of Rose v. Lundy and McCleskey v. Zant. There is no basis in this record to support the state's assertion that the third amended complaint was filed only to vex, harass, and delay. Indeed, the Supreme Court in Sanders v. United States, 373 U.S. 1, 22-23, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963) encouraged the district courts to refrain from deciding petitions on the merits until all possible claims were before them. That is exactly what the district court did in this case. The remand is unnecessary.

Second, the district court in my view correctly held as a matter of law that there could not be an abuse of the writ under Rule 9(b) when there has never been an adjudication of any prior claim on the merits. In reversing, the majority correctly recognizes that Rule 9(b) was promulgated to reflect principles enunciated in Sanders v. United States, supra, but then gets Sanders wrong.

The majority's analysis depends on the premise that Sanders itself involved a case where a previous habeas petition had not been decided on the merits. See majority op., pp. 1557-58. I do not believe that premise is accurate.

Sanders involved a second petition. In his first petition, Sanders alleged that the indictment was invalid, that he was denied effective assistance of counsel, and that his guilty plea was involuntary. Sanders, 373 U.S. at 5, 83 S.Ct. at 1071. Sanders made insufficient factual allegations in support of his claims. Id., 83 S.Ct. at 1072. The district court, however, did not simply deny the petition because of the absence of supporting factual allegations; it also held that the court records affirmatively refuted Sanders' three claims for relief. Id. That was an adjudication on the merits. See id. at 16, 83 S.Ct. at 1077, explaining that in order for there to be a ruling on the merits for abuse purposes, the court must either refute the allegations from its own records or hold a hearing. The Court said that an "adjudication on the merits" in a prior application means that "if factual issues were raised in the prior application," then either the application was "denied on the basis that the files and records conclusively resolved these issues," or "an evidentiary hearing was held." Id.

The concept of abuse of the writ is a subset of the larger realm of res judicata claim preclusion. While prior habeas determinations have less preclusive effect than ordinary judgments, they do have some preclusive effect. See id. at 8-11, 83 S.Ct. at 1073-75 (citing and discussing Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924); Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948)). It is hornbook law that a prior judgment does not have preclusive effect unless it is a decision on the merits. See Restatement (Second) of Judgements §§ 13 & 20 (1982); Kremer v. Chemical Const. Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889 n. 6, 72 L.Ed.2d 262 (1982). The Supreme Court underscored this point recently in Felker v. Turpin, --- U.S. ----, ----, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996), where it stated that "restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice 'abuse of the writ.' " The majority decision is thus contrary to basic claim preclusion principles.

The majority's reliance on Hamilton v. Vasquez, 882 F.2d 1469 (9th Cir.1989), and Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), is not convincing. In Hamilton we did not, as the majority opinion states, "recognize[ ] that the absence of a prior merits determination wasn't dispositive of the state's alternative 'abusive petition' argument." Majority op. p. 1558. Instead, we decided the abuse of the writ argument on the merits because neither party raised the question whether there can be an abuse absent a prior adjudication on the merits. 882 F.2d at 1473. We did not deal with the issue presented here. The language quoted from Sawyer, on page 1560 of the majority's opinion, is not persuasive because Sawyer concerned the "miscarriage of justice" exception to the bar against consideration of successive claims, and not whether a successive claim may constitute an abuse of the writ. Sawyer, 505 U.S. at 339-40, 112 S.Ct. at 2518-19.

Apart from Sanders, neither the majority opinion nor the state cites any case in which it is even suggested that Rule 9(b) authorizes finding an abuse when there has been no prior decision on the merits. The principles enunciated in Sanders were drawn from an extensive discussion of prior cases, all of which considered an earlier decision on the merits to be a prerequisite to consideration of any government claim of abuse in a successive petition. In Wong Doo v. United States, 265 U.S. 239, 239-40, 44 S.Ct. 524, 525, 68 L.Ed. 999 (1924), the petitioner raised two grounds for relief in his first federal habeas petition, but withheld any proof on the second ground and lost on the merits. Later, he filed a second petition, relying exclusively on the second ground alleged in the first petition. Id. at 240, 44 S.Ct. at 525. The Supreme Court observed that petitioner had not offered any "reason for not presenting the proof at the outset," and held that "[t]o reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus." Id. at 241, 44 S.Ct. at 525.

Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), also involved a prior adjudication on the merits. In Price, the petitioner raised a new claim for relief in his fourth successive federal habeas petition. Id. at 286, 288-89, 68 S.Ct. at 1060, 1061-62. The Supreme Court remanded for a determination of whether the petitioner abused the writ by failing to raise this new claim in his earlier petitions, two of which had been denied on the merits. Id. at 290-94, 68 S.Ct. at 1062-1064.

In addition to Wong Doo and Price, the opinion in Sanders drew heavily from Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924), which also concerned successive federal habeas petitions. See Sanders, 373 U.S. at 8-9, 83 S.Ct. at 1073-74. Sanders noted that in Salinger, "[t]he petitioner's successive applications were properly denied because he sought to retry a claim previously fully considered and decided against him." Id. at 9, 83 S.Ct. at 1074. The Salinger Court observed that

[t]he action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it.

265 U.S. at 231-32, 44 S.Ct. at 522 (quoting Ex parte Cuddy, 40 F. 62, 66 (1889)). Clearly, Salinger, like Wong Doo and Price, required a prior habeas adjudication on the merits.

Our overall concern should be with making habeas corpus procedures more efficient, orderly and understandable. The Supreme Court and Congress have insisted that all habeas claims be consolidated insofar as practicable and that they be promptly resolved. The latter goal can never be achieved in this case. That is beyond our control. What is within our control is to let the district court proceed to adjudicate a consolidated petition. The majority refuses to do this and instead issues an open invitation to respondents in habeas cases to file more motions and to all parties to file more appeals. Let's stop making more work for the courts and doing less justice for litigants in habeas cases.

Because there is no factual basis to suggest the third amended complaint was filed for vexatious purposes, and for the independent reason that, as a matter of law, I believe the district court correctly recognized there can be no abuse under Rule 9(b) unless there has been a prior adjudication on the merits, I respectfully dissent from the order remanding for a determination of whether there has been an abuse of the writ.