                            In The
                      Court of Appeals
        Sixth Appellate District of Texas at Texarkana

                           No. 06-15-00059-CV

FRANKIE MARIE MILLER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
                  ESTATE OF T.J. MILLER, Appellant

                                    V.

JOHN B. MULLEN, M.D., AND TITUS REGIONAL MEDICAL CENTER, Appellees

                  On Appeal from the 76th District Court
                          Titus County, Texas
                         Trial Court No. 36865

               Before Morriss, C.J., Moseley and Burgess, JJ.
                       Opinion by Justice Burgess
                                         OPINION
       After suffering complications from an epidural steroid injection, T.J. Miller (T.J.) went to

the emergency room where he was treated by Dr. John B. Mullen. Mullen believed that T.J. was

experiencing both a heart attack and internal bleeding from the injection and prescribed aspirin in

an effort to treat T.J.’s potential heart attack. After magnetic resonance imaging confirmed the

presence of a hematoma, T.J. underwent emergency surgery, which left him paralyzed. Months

later, T.J. became septic and died from multi-organ failure. Alleging that Mullen’s administration

of aspirin led to T.J.’s paralysis and death, his widow, Frankie Marie Miller (Frankie), individually

and on behalf of T.J.’s estate (collectively, Miller), sued Mullen for medical malpractice.

       Mullen filed no-evidence and traditional motions for summary judgment arguing that

Miller presented no probative evidence that Mullen acted with willful and wanton negligence in

prescribing the aspirin or that T.J.’s injuries were caused by Mullen’s negligence. The trial court

granted summary judgment in Mullen’s favor. On appeal, Miller argues that the trial court erred

in granting summary judgment because there were genuine issues of material fact on the breach

and causation issues. We find that the entry of summary judgment was proper in this case and

affirm the trial court’s judgment.

I.     Factual and Procedural Background

       A.      Another Doctor Gives T.J. a Cervical Injection

       In the course of treating seventy-six-year-old T.J. for recurrent neck and right arm pain,

Dr. Robert Sutherland prescribed a series of interlaminar cervical epidural steroid injections. On

April 1, 2011, Sutherland ordered T.J. to stop his daily aspirin regimen, which thins the blood, in

                                                 2
preparation for the injections.1 The injections required out-patient day surgery, and T.J. was

informed in writing that the risks included bleeding, numbness, paralysis, spinal fluid leak,

respiratory distress, and death, among others.                    T.J.’s first injection on April 8, 2011, was

uneventful, but complications arose after his April 22, 2011, injection.

            Following his 10:21 a.m. discharge from out-patient surgery,2 T.J. began experiencing

intense neck pain. He returned to the day surgery department of the Titus Regional Medical Center

and asked a nurse if he could speak to Sutherland. The nurse took T.J. straight to the emergency

room (E.R.), where he was met by another nurse, Stormy Hill, and Mullen, a board-certified

neurosurgeon and E.R. doctor.

            B.       Mullen Treats T.J. in the E.R. for Complications After the Injection

            Hill’s notes stated that T.J. arrived in the E.R. at 11:05 a.m. “with complaints of severe

back/neck pain starting after [the] patient had [a] pain injection.” Hill further noted, “Patient

presents very pale and clammy with complaints of severe pain in chest that radiated to back.

Patient unsootheable. Dr. Mullen at bedside.” T.J.’s E.R. records confirmed that he complained

of chest and neck pain and that he was experiencing motor difficulties in his right leg. Mullen

“knew that [T.J.] had a spinal epidural injection,” was suspicious that T.J. was having a sleep onset

myoclonic jerk in his leg, and immediately knew that the symptom could be the result of cervical

cord compression from a hematoma caused by the injection. However, Mullen explained that he

“was concerned [T.J.] was having a heart attack” because he “came in complaining of severe chest

1
    T.J’s medical history included hypertension, diabetes, and kidney disease.
2
    The discharge notes reflect that T.J. was not in any pain at the time of his discharge.
                                                              3
pain as well as neck pain. He was cold and clammy, grabbing his chest, saying he was going to

die.” Mullen immediately ordered a “cardiac chain” that included an electrocardiogram (EKG),

several other tests, and analysis of bloodwork. He testified that he believed T.J. was suffering

from two separate issues—a heart attack and a hematoma—at the same time.

       At 11:07, two minutes after the cardiac chain was ordered, an EKG reflected that T.J. was

not then suffering any significant cardiac problem. To rule out the possibility that T.J. had recently

suffered a heart attack, T.J.’s blood was drawn at 11:10 a.m. and was received in the hospital’s

laboratory at 11:20 a.m. At 11:15 a.m., before T.J.’s blood work was returned, Hill gave him 325

milligrams of chewable baby aspirin on Mullen’s orders. Mullen testified that he knew that aspirin

delayed the clotting mechanism in the blood and acted as a blood thinner even in low doses, but

ordered the aspirin as “standing protocol” for a patient showing symptoms of cardiac distress. As

a part of the cardiac chain, Mullen ordered a prothrombin time and international normalized ratio

study (PT/INR) to determine the “clotting status of the patient.” A portable chest x-ray was

completed at 11:22 a.m. and showed no abnormality.

       At 11:27 a.m., Mullen ordered a magnetic resonance image (MRI) of the cervical spine.

Shortly thereafter, the analysis of T.J.’s blood work was returned from the laboratory. The PT/INR

test showed that T.J.’s blood was coagulating normally. Mullen testified that the blood work

demonstrated that T.J. was not having a heart attack.

       Although the MRI was ordered at 11:27, T.J. was in such pain that he could not sit still for

the MRI until he was further medicated. The MRI was completed at approximately 12:45 p.m.,

revealed a hematoma that was approximately one-foot long and a “probable air artifact in the

                                                  4
posterior spinal canal at the T3 and T4 level that likely represent[ed] air bubbles related to recent

injection.” Mullen diagnosed T.J. with “hematoma complicating a procedure,” concluded that T.J.

needed immediate surgical intervention to relieve the pressure on T.J.’s spinal cord to prevent

paralysis, and spoke with Dr. Bradley Duhon, a neurosurgeon at East Texas Medical Center, who

agreed to operate on T.J.

         C.       Another Doctor Performs Emergency Surgery

         Duhon performed an emergency laminectomy to depress T.J.’s spinal cord. The first

operation lasted from 4:08 p.m. until 9:00 p.m. A follow-up MRI revealed that T.J. still had an

epidural hematoma, causing Duhon to perform a second laminectomy.

         After his surgeries, T.J. lost motor function in his legs. He spent the next five days in the

hospital, was discharged to an in-patient rehabilitation facility, and underwent approximately six

months of physical rehabilitation at several in-patient rehabilitation centers. Subsequently, T.J.

suffered a tear in his rotator cuff, which required surgery in September 2012. While in a medical

facility, T.J. developed pneumonia and sepsis. He died in October 2012.

         D.       Miller Sues Mullen and Obtains Expert Report

         Miller sued Mullen for medical malpractice and obtained the expert report of Dr. James

Michael Vascik, a board-certified neurosurgeon.3 Vascik noted that post-operative hematoma is

one of the possible complications that can arise from an epidural steroid injection. According to

Vascik, Mullen’s administration of aspirin, “a known antiplatelet medication,” was “outside of

3
 Vascik’s report stated that he orders epidural steroid injections and treats patients “prior to and after those injections
are placed,” both in and out of the emergency room.
                                                            5
[the] acceptable standard of care” given T.J.’s “history of an epidural steroid injection having been

given and the history of arm weakness and pain, and the presence of an epidural hematoma.”

Vascik explained that the aspirin prevented the normal human clotting mechanism which could

have stopped the active bleeding in this case.

         Vascik went on to state, “Had the aspirin not been administered, it is reasonably medically

probable that the blood clot would not have continued to increase in size, and the operative surgeon

would not have had difficulty in controlling the bleeding.” He opined that Mullen “took extreme

risk by ordering aspirin for Mr. Miller” because there was “[n]o justification . . . for this order in

light of the normal EKG.” Vascik also stated, “It is entirely likely that had the patient not had the

epidural hematoma that led to his becoming paralyzed, he would not have injured his shoulder,

would not have had the surgery that led to his pneumonia, which then led to sepsis and his death.”4

         E.       Miller’s Expert Testifies

         During his deposition, Vascik opined that, “when the steroid injection was placed, an

artery/arteriole was nicked,” and clarified that his only criticism of Mullen was his administration

of the aspirin in light of the normal EKG. He stated that aspirin is avoided prior to cervical

injections due to its antiplatelet effect, that the antiplatelet effect is realized in a matter of minutes,

and that it is foreseeable that aspirin taken within a few hours after a procedure can cause a bleeding

complication. Vascik believed that the aspirin caused T.J.’s injuries because (1) the PT/INR

demonstrated that T.J.’s blood was clotting normally, which indicated that the bleeding could have

4
 In an amended report, Vascik clarified, “Although the specific blood test indicating Mr. Miller’s coagulation status,
the PTT, was within normal limits, the administration of aspirin, a known platelet blocking agent, led to the difficulty
with this surgeon’s evacuating and stopping the bleeding and in all medical probability increasing the size of this clot.”
                                                            6
stopped in the absence of the administration of aspirin, (2) T.J. developed signs of weakness that

were not persistent prior to the administration of aspirin, (3) “[T.J.] was not paralyzed before the

administration of the aspirin,” and (4) Duhon noted that he had a great deal of difficulty getting

T.J.’s blood to clot during surgery.

       Vascik could not agree that T.J. would have had the exact same outcome even without the

aspirin because “[i]t did not allow for thrombus to develop that may have stopped the bleeding

short of the development of paralysis in short of the development of the size of the clot that would

require surgery.” Vascik testified, “[I]t is my opinion that but for the inhibition of the clotting

mechanism, this aspirin, I believe it is more likely than not that he would not have been paralyzed”

and also concluded that the administration of aspirin was the proximate cause of T.J.’s death. In

an attempt to establish the causal nexus, Vascik explained that the epidural hematoma caused

spinal cord damage, which caused T.J’s legs not to function, which led to overuse of his shoulder,

which caused rotator cuff damage that required surgery, which required him to be in an in-patient

facility, which provided the environment for T.J. to develop pneumonia, which led to sepsis, multi-

organ failure, and death. In sum, Vascik stated that, “more likely than not, if he wasn’t paralyzed

and he was moving around normally, he would not have the risk of pneumonia and would not have

died when he did.”

       However, Vascik agreed that T.J.’s medical history indicated that he was at risk of having

a heart attack, that his condition in the emergency room led to a reasonable differential diagnosis

of a life-threatening heart attack, and that Mullen’s opinion that T.J. was also suffering a heart

attack was reasonable. Vascik explained, “You get an old guy that is hypertensive, diabetic, you

                                                 7
put stress on him. An epidural steroid injection usually goes very smoothly and you can go out and

have dinner afterward, but in some people it can increase your level of stress and potentially put

more stress on your heart and can lead to a heart attack.” Vascik testified that he had no doubt that

Mullen believed T.J. was having a heart attack, that aspirin therapy confers conclusive net benefits

in the acute phase of evolving myocardial infarction and should be administered routinely to

virtually all patients with evolving acute myocardial infarctions, and that a normal EKG does not

rule out myocardial infarction. Vascik also agreed that there was no evidence to suggest that

Mullen was consciously aware of but indifferent to T.J.’s risk of paralysis.

        Vascik explained that hematoma and paralysis are risks of the injections, that a hematoma

cannot be diagnosed without an MRI, and that surgery is the only option when a hematoma is

found. Because he did not know what the hematoma looked like prior to the administration of the

aspirin, Vascik did not know whether T.J. would have had the same outcome even if the aspirin

had not been administered and could not say how much damage was directly attributable to the

medication.5 Vascik further acknowledged that there are hematoma patients who suffer paralysis

as a result of the injections without ingesting aspirin and that he had never had a patient suffer

paralysis as a result of ingesting aspirin because he could control the bleeding during surgery by

“giv[ing] a ten-pack of platelets as an administrative tool.” Vascik testified that aspirin’s platelet

inhibition lasts approximately six or seven hours and that T.J. received two six-packs of platelets

during his surgery.

5
 Vascik could not cite to any medical literature that would indicate how much worse T.J.’s condition became as a
result of the aspirin.
                                                       8
       F.       The Trial Court Grants Summary Judgment

       After ample time for discovery had passed, Mullen filed no-evidence and traditional

motions for summary judgment arguing that Miller had no evidence that he breached the

emergency room standard of care or caused T.J.’s damages. After reviewing T.J.’s medical

records, and Mullen and Vascik’s depositions, the trial court granted summary judgment in

Mullen’s favor.

II.    Standard of Review

       We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). “When a party moves for summary judgment on both no-evidence

and traditional grounds, the appellate court should ordinarily address the no-evidence grounds

first.” Burleson v. Lawson, No. 11-14-00004-CV, 2016 WL 687213, at *2 (Tex. App.—Eastland

Feb. 18, 2016, no pet.) (mem. op.) (citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248

(Tex. 2013)).

       “To prevail on a no-evidence motion for summary judgment, the movant must first allege

that there is no evidence of one or more specified elements of a claim or defense on which the non-

movant would have the burden of proof at trial.” Crocker v. Babcock, 448 S.W.3d 159, 163 (Tex.

App.—Texarkana 2014, pet. denied). “A no-evidence summary judgment is essentially a pretrial

directed verdict.” Virginia Oak Venture, LLC v. Fought, 448 S.W.3d 179, 185 (Tex. App.—

Texarkana 2014, no pet.). “Therefore, we apply the same legal sufficiency standard in reviewing

a no-evidence summary judgment as we apply in reviewing a directed verdict.” Id. (citing Wal-

Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)). “We must determine whether

                                                9
the plaintiff produced any evidence of probative force to raise a fact issue on the material questions

presented.” Id. During our analysis, “we review the evidence in the light most favorable to the

non-movant, credit evidence favorable to that party if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.” Sage v. Howard, 465 S.W.3d 398, 402

(Tex. App.—El Paso 2015, no pet.) (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)).

       “The plaintiff will defeat a defendant’s no-evidence summary judgment motion if [the]

plaintiff presented more than a scintilla of probative evidence on each element of its claim.”

Fought, 448 S.W.3d at 185 (citing King Ranch, 118 S.W.3d at 751; Rhine v. Priority One Ins. Co.,

411 S.W.3d 651, 657 (Tex. App.—Texarkana 2013, no pet.)). “More than a scintilla of evidence

exists when the evidence rises to a level that would enable reasonable and fair-minded people to

differ in their conclusions.” Crocker, 448 S.W.3d at 163 (citing Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla of evidence exists when the

evidence is ‘so weak as to do no more than create a mere surmise or suspicion of a fact.’” Id.

(quoting King Ranch, Inc., 118 S.W.3d at 751).

III.   Analysis

       In a medical negligence cause of action, the plaintiff must prove “(1) a duty by the

physician to act according to a certain standard, (2) breach of the applicable standard of care, (3) an

injury, and (4) a sufficient causal connection between the breach of the standard and the injury.”

Benish v. Grottie, 281 S.W.3d 184, 191 (Tex. App.—Fort Worth 2009, pet. denied) (citing Duff v.

                                                  10
Yelin, 751 S.W.2d 175, 176 (Tex. 1988)). Proof of the standard of care in this case is governed by

Section 74.153 of the Texas Civil Practice and Remedies Code, which provides,

         In a suit involving a health care liability claim against a physician or health care
         provider for injury to or death of a patient arising out of the provision of emergency
         medical care in a hospital emergency department or obstetrical unit or in a surgical
         suite immediately following the evaluation or treatment of a patient in a hospital
         emergency department, the claimant bringing the suit may prove that the treatment
         or lack of treatment by the physician or health care provider departed from accepted
         standards of medical care or health care only if the claimant shows by a
         preponderance of the evidence that the physician or health care provider, with
         wilful and wanton negligence, deviated from the degree of care and skill that is
         reasonably expected of an ordinarily prudent physician or health care provider in
         the same or similar circumstances.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.153 (West Supp. 2015).

         A.       There Was No Evidence of the Subjective Element of Wilful and Wanton
                  Neglect

         “[T]he standard of proof imposed by section 74.153 requires proof . . . that the physician

or health care provider’s mental state or intent at the time of any deviation from the medical

standard of care was wilful and wanton.”6 Benish, 281 S.W.3d at 191. This wilful and wanton

standard is synonymous with gross negligence.7 Turner v. Franklin, 325 S.W.3d 771, 781 (Tex.

App.—Dallas 2010, pets. denied); see Dunlap v. Young, 187 S.W.3d 828, 836 (Tex. App.—

6
 “The Texas Supreme Court has explained repeatedly that it is a tortfeasor’s intent or mental state that distinguishes
between negligence, gross negligence, knowing acts or omissions, wilful negligence, and intentional conduct.”
Bernish, 281 S.W.3d at 191 (citing Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164 (Tex. 2005); Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004)).
7
 In this Court and in the trial court, both parties represented that Turner is correct in its discussion of the willful and
wanton standard. For purposes of analyzing this summary judgment, we assume the Turner definition of the willful
and wanton standard, as urged by both parties.
                                                           11
Texarkana 2006, no pet.) (citing Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32, 50 n.25

(Tex. App.—Houston [1st Dist.] 1993, writ denied)).

       “Gross negligence, in turn, is comprised of two elements—one objective and one

subjective.” Turner, 325 S.W.3d at 781; see Burleson, 2016 WL 687213, at *7. “Circumstantial

evidence is sufficient to prove either element of gross negligence.” Turner, 325 S.W.3d at 781.

“For the objective element, ‘the act or omission must depart from the ordinary standard of care to

such an extent that it creates an extreme degree of risk of harming others.’” Burleson, 2016 WL

687213, at *7 (quoting Turner, 325 S.W.3d at 781). “To meet this element, Dr. [Mullen]’s conduct

must involve the ‘likelihood of serious injury’ to [T.J.].” Id. “For the subjective element, [Mullen]

must have ‘actual, subjective awareness of the risk involved and choose to proceed in conscious

indifference to the rights, safety, or welfare of others.’” Id. (quoting Columbia Med. Ctr. of Las

Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008)). “[T]he plaintiff must show that the

defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care.”

Turner, 325 S.W.3d at 782.

       Although “issues of intent are usually best left to the trier of fact to resolve,” “there is

nothing about the willful and wanton negligence standard in Section 74.153 that categorically

precludes it from resolution by summary judgment.” Id. at 782–83. Here, Miller had the burden

to produce more than a scintilla of evidence that Mullen met both the objective and subjective

elements of gross negligence to defeat his summary judgment, but only the subjective element is

challenged. Id.

                                                 12
            “Evidence of ‘some care’ will not disprove gross negligence as a matter of law,” but “intent

to harm is not required to prove a defendant acted with willful and wanton negligence.” Id. at 784.

Instead, “[c]ourts must look for ‘evidence of the defendant’s subjective mental state rather than

the defendant’s exercise of care,’” Id. (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (Tex.

1994)), to determine if “the defendant was subjectively aware of the risk involved and chose to

proceed in conscious indifference of the rights, welfare, and safety of others,” Id. (citing Hogue,

271 S.W.3d at 248).

            Miller argues that Mullen’s administration of the aspirin after the normal EKG presented

an extreme risk of serious injury to T.J. She further argues that Mullen’s testimony established

that he was aware of the risk because he believed that T.J. could be experiencing a hematoma,

knew that paralysis could result, and knew that aspirin was an antiplatelet medication, which could

prevent the natural clotting mechanism of T.J.’s blood.

            Mullen argues that, while he was aware of the risk and chose to proceed, there was no

evidence that the administration of the aspirin was due to his conscious indifference to T.J.’s

welfare or safety. We agree.

            Mullen believed that T.J. was suffering from a heart attack, and Vascik agreed that

Mullen’s opinion was reasonable. While Vascik faulted Mullen for administering the aspirin after

the EKG results, he also stated that a normal EKG does not rule out heart attack, but only

establishes that the patient is not currently suffering a heart attack.8 Although Vascik’s testimony

8
    Vascik testified,

            Once you have a normal EKG, . . . [t]here are times where you won’t see ST elevation, you pretty
            much have ruled out a lot of people as having heart attacks, so then you should hold off on the
                                                          13
presented a fact question on the objective component of willful and wanton negligence, Mullen’s

testimony spoke directly to his subjective mental state at the time that the aspirin was administered.

        Because Mullen was awaiting other results that would indicate whether T.J. had recently

suffered a heart attack, he decided to administer the aspirin which was a part of the standard heart

attack prevention protocol. Thus, Mullen’s testimony establishes that he gave T.J. aspirin in spite

of the risk of doing so in light of the differential diagnosis because T.J. was “clutching his chest

and stating he had chest pain and neck pain. He was sweaty and diaphoretic. His skin was clammy

and pale. These are all symptoms of potential heart attack.” In speaking to the subjective

component, Vascik testified that there was no evidence to suggest that Mullen was indifferent to

T.J.’s risk of paralysis.

        Therefore, even when viewing the evidence in the light most favorable to Miller, we find

that Miller failed to bring forth more than a scintilla of probative evidence showing that Mullen

was consciously indifferent to T.J.’s safety or welfare when making his decision to administer

aspirin. See Christus Health S.E. Tex. v. Licatino, 352 S.W.3d 556, 563 (Tex. App.—Beaumont

2011, no pet.). Accordingly, the trial court’s summary judgment was proper.

        A.       There Was No Evidence that T.J.’s Injuries Were Caused by Aspirin

        We further find that there was no evidence that T.J.’s injuries were caused by Mullen’s

administration of aspirin. “To establish causation in a medical malpractice case, the plaintiff is

required to show evidence of a ‘reasonable medical probability’ or ‘reasonable probability’ that

        aspirin and look at and develop your other differential diagnosis. . . . Knowing that the EKG was
        normal in a patient you are concerned with a heart attack doesn’t absolutely clear that he had a heart
        attack, but it gives you enough freedom to wait and work on your second diagnosis.
                                                         14
his injuries were proximately caused by the negligence of one or more defendants.” Sage v.

Howard, 465 S.W.3d 398, 403 (Tex. App.—El Paso 2015, no pet.) (citing Park Place Hosp. v.

Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995)). “Proximate cause consists of both cause in fact

and foreseeability.” Givens v. M&S Imaging Partners, L.P., 200 S.W.3d 735, 738 (Tex. App.—

Texarkana 2006, no pet.); see Rodriguez–Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013).

         “Cause in fact is established when an act or omission was a substantial factor in bringing

about the harm, and, without it, the harm would not have occurred.” Id.; see Milo, 909 S.W.2d at

511. “Cause in fact is not established where a defendant’s negligence does no more than furnish

a condition which makes the injuries possible.” Givens, 200 S.W.3d at 738. “In other words, such

conduct of a defendant is considered to be too attenuated from the resulting injuries to the plaintiff

to be a substantial factor in bringing about the harm.”9 Id.

         Vascik could not agree that T.J. would have had the same outcome had the aspirin not been

given because T.J.’s blood was clotting normally prior to the administration of the aspirin, which

meant that it was “also likely that he would have stopped bleeding on his own at some point.”

Vascik testified that the aspirin inhibited the clotting mechanism, which could have exacerbated

the size of the hematoma and led to Duhon’s difficulty in controlling the bleed. Vascik concluded,

“[B]ut for . . . this aspirin, . . . it is more likely than not that [T.J.] would not have been paralyzed.”

Vascik based his opinion on “the knowledge that within 15 or 20 or 30 minutes after the

administration of the aspirin is when [T.J.] started having the weakness in the legs,” which lead

9
 On appeal, Miller does not specifically argue that there was evidence that the administration of aspirin caused T.J.’s
death. The appellate brief focuses on the “prolonged bleeding” and “paralysis.”
                                                          15
Vascik to believe “that the bleeding either became more active or reached a critical mass and

compressed the spinal cord.”

       At first blush, it appears that this testimony was sufficient to raise a fact issue on causation.

Yet, “proof that a patient lost some chance of avoiding a medical condition . . . is not enough.” Id.

at 861. Further, a “20/20 hindsight analysis which does not provide . . . any evidence of causation”

is insufficient. See Moreno v. M.V., 169 S.W.3d 416, 422 (Tex. App.—El Paso 2005, no pet.).

       Vascik testified that the hematoma was caused by Sutherland’s injection and that

permanent damage from hematoma can result within ten minutes. The following transcript from

Vascik’s deposition established that his opinions were based on speculation and possibility:

              Q       But we really don’t know, do we, sir? I mean the fact of the matter
       was he was bleeding for some two hours before he presented to the emergency
       department. He had ten out of ten pain. . . . There is no question he was going to
       have to be transferred to a higher level facility.

               A       I agree.

              Q       And there are patients that have this exact same complication
       without aspirin onboard that end up paralyzed, true?

               A       Absolutely.

               Q      So there is no way to sit here in hindsight and say but for that aspirin,
       Mr. Miller would not have this result because it can and does occur even without
       aspirin, doesn’t it ?

               A      You are not asking a generality. You are asking about him. And in
       this case he was not paralyzed before the administration of the aspirin. We don’t
       have an MRI scan before the administration of aspirin. You are asking me to make
       an assumption that I can’t make.

             Q       Right. And that’s my point, is that you can’t make that assumption.
       You can’t say one way or the other whether or not Mr. Miller would have been

                                                  16
        paralyzed but for the aspirin because there are patients that suffer the same
        complication as a result of epidural steroid injection without aspirin onboard.

                ....

               A      But your specific question to me asked me to agree with you that he
        would have had the same complication without aspirin and I disagree. I don’t know
        that.

                Q       Fair enough. You don’t know that. So I guess that’s really the
        answer, is that we don’t know -- would you agree, we don’t know one way or the
        other whether or not Mr. Miller would have had the same outcome regardless of
        the aspirin?

                A       Fair enough.

                Q      In other words, we can’t say within a reasonable medical probability
        that the same sequela wouldn’t have occurred even without the aspirin, true?

                ....

                A       Correct.

              Q       Can you cite or direct me to any literature that tells me how much
        worse Mr. Miller’s condition became as a result of the aspirin?

                A       Of course not.

Vascik also testified that he had never had a patient suffer a paralysis as a result of ingesting aspirin

because he could control the bleeding during surgery by, as Duhon did in this case, “giv[ing] a

ten-pack of platelets as an administrative tool.”

        “The plaintiff must establish a causal connection beyond the point of conjecture; proof of

mere possibilities will not support the submission of an issue to the jury.” Thomas v. Farris, 175

S.W.3d 896, 899 (Tex. App.—Texarkana 2005, pet. denied). “While expert medical testimony

concerning the possible causes of the condition in question is admissible to assist the trier of fact

                                                    17
in evaluating other evidence in the case, a possible cause only becomes probable when, in the

absence of other reasonable causal explanations, it becomes more likely than not that the injury

was a result of its action.” Id. “Even if an expert uses the phrase “reasonable probability,” the

evidence is not sufficient when the substance of the expert testimony raised only mere possibilities,

speculation, and surmise.” Id. at 900; see Hogue, 271 S.W.3d at 247.

        Here, we find that Vascik’s testimony established that the administration of the aspirin was

a possible cause of T.J.’s injuries, but fell short of raising a fact issue as to whether the aspirin was

a probable cause of his paralysis or death. Accordingly, the trial court properly granted the no-

evidence motion for summary judgment on the issue of causation.

IV.     Conclusion

        We affirm the trial court’s judgment.

                                                Ralph K. Burgess
                                                Justice

Date Submitted:         February 23, 2016
Date Decided:           June 24, 2016

                                                   18


797 F.2d 1335
Glenn S. PASSMAN, Petitioner-Appellant,v.Frank BLACKBURN, Warden, Louisiana State Penitentiary, etal., Respondents- Appellees.
No. 85-3249.
United States Court of Appeals,Fifth Circuit.
Aug. 22, 1986.Rehearing Denied Sept. 23, 1986.

Glenn S. Passman pro se.
Henry Hoppe, III, Slidell, La.  (Court-appointed), for petitioner-appellant.
Tom W. Thornhill, Asst. Dist. Atty., Abbott Reeves, Slidell, La., for respondents-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REAVLEY, RANDALL and DAVIS, Circuit Judges.
RANDALL, Circuit Judge:

1
Glenn S. Passman, an incarcerated state prisoner, appeals from the dismissal of his petition for a writ of habeas corpus, 28 U.S.C. Secs. 2241, 2254.  For the reasons that follow, we affirm the judgment of the district court.

I.

2
Passman was convicted by a jury in Louisiana in 1976 of armed robbery, and was sentenced to serve ninety-nine years without benefit of parole, probation, or suspension of sentence.  The Louisiana Supreme Court affirmed the conviction.   State v. Passman, 345 So.2d 874 (La.1977).  After seeking post-conviction relief in state court, Passman, proceeding pro se, filed in 1979 a petition for writ of habeas corpus under Sec. 2254 in the federal district court raising the same claims as in the state petition.  The petition raised eleven grounds.  The district court's dismissal of the petition was affirmed by this court in 1981.   Passman v. Blackburn, 652 F.2d 559 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982).

3
Passman, again proceeding pro se, filed the instant petition, his second in federal court, in 1984.  He raised four claims that were not raised in the first federal petition:  (1) improper prosecution comments at trial concerning Passman's post-arrest silence;  (2) the sentence amounts to cruel and unusual punishment;  (3) failure of the state to prove an essential element of the crime, namely, that Passman was armed with a dangerous weapon;  and (4) failure of the state to prove that Passman had the specific intent to deprive permanently the victim of the property stolen.  Passman explained in the petition his failure to include those four grounds in his first petition as follows:

4
None of the claims presented in this petition were presented in the previous post-conviction application.  The reasons are that defendant did not have the aid of counsel in presenting his claims;  did not know that the claims were cognizable;  did not have access to prison library;  due to recent law.

5
The district judge ordered the petition referred to a magistrate, who filed an order pursuant to Rule 4, Rules Governing Sec. 2254 Cases in the United States District Courts, requiring the state to file an answer complying with Rule 5.  Before the state filed an answer (it had been given two extensions of time), the magistrate by sua sponte written order notified Passman that his petition was subject to dismissal under Rule 9(b), and requested that Passman explain why he "did not assert the grounds pleaded herein in his previous habeas corpus proceedings."1

6
Passman responded on the 9(b) form as follows:

7
Firstly, the grounds set forth in the second petition are new and different grounds as alleged in the first petition.  Secondly, defendant had no knowledge of the legal principles--law pertaining to the grounds set forth in the instant petition when he filed his first petition in 1977;  did not have the assistance of counsel;  did not have proper law library or legal aid assistance;  and due to changes in the law.

8
In a memorandum of law accompanying the Rule 9(b) response, Passman asserted that "in 1977 when [he] filed his first petition there was not even a law library or legal aid assigned to Camp C, Angola, Louisiana.  And subsequently when a legal aid was assigned to Camp C defendant was allowed to check three books out from the Main Prison Law Library and was not allowed to visit the law library."    Further, as to his claim concerning improper prosecution comments on his post-arrest silence, which relies on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), Passman asserted that he:

9
absolutely did not understand the rationale of Doyle [ ] as it applied to the facts of his case.  As a matter of fact defendant was not even aware of Doyle until after the first petition had been denied certiorari by the United States Supreme Court [in 1982].  Thereafter, while reading a "Georgetown Law Journal" defendant identified the Doyle violation was applicable to the facts of his case.  Had defendant known of the rationale of Doyle in 1977 he definitely would have included it as one of his claims as the magnitude of the constitutional error would have definitely entitled him to relief then.

10
As to the sentencing issue, Passman claimed that he "was not aware that he had a liberty interest in the proper exercise of the sentencing judge's discretion which was a constitutional question of whether due process was accorded" until 1982.2

11
The state filed a short opposition to the petition a few days later.  The state did not assert that Rule 9(b) barred consideration of the petition because the petition was an abuse of the writ.  The state did not contend that Passman knew of the claims raised in the second petition at the time the first petition was filed.  Rather, the state argued that "[i]t is apparent that the instant application is an effort to relitigate the issues considered by the entire State and Federal court system without change."    The state further asserted that Passman was barred by "collateral estoppel" from pursuing the petition:  "All bases for Federal habeas corpus have been examined by this and other Federal courts to no avail.  All of those issues were previously considered and rejected and cannot now be reconsidered by this Honorable Court."    Further, the state contended that Passman failed to exhaust state remedies.3   Passman responded to the state's opposition that, in fact, "none of the issues presented [in the first petition] are raised in the instant petition."

12
Shortly thereafter, the district judge revoked the reference to the magistrate, and issued an order denying the petition.  The district judge determined that the petition was barred under Rule 9(b), without holding an evidentiary hearing.  The court did not adopt the state's argument advanced in the answer that the four claims in the second petition had actually been raised in the first petition.  Rather, the district judge concluded that Passman should have raised the four new issues in the first petition;  therefore, this petition was subject to dismissal as an abuse of the writ.  The court did not address Passman's factual assertions that he had no actual knowledge of the Doyle or sentencing issues, no direct access to a law library, and limited indirect access to books.  The court did not find that Passman deliberately withheld these claims for delay or to harass the state.  The district court concluded, however, that Passman did not "carry his burden of proof" of showing that the second petition was not an abuse of the writ:

13
Passman's first habeas corpus application and the supporting memorandum he submitted to the state district court, the Louisiana Supreme Court, and the United States District Court exemplify well researched, comprehensive pleadings.  The pleadings are not reflective of an individual who is unskilled or one who had insufficient knowledge of the law.  Nor does the record reflect an individual incapable of utilizing tools of legal research to ascertain changes in the law.

14
The court is therefore of the opinion that petitioner's claim for habeas relief should be dismissed on procedural grounds....  The grounds raised in this second application cannot be said to have been initially established by legislation or jurisprudence in the interim period between the filing of Passman's first petition and the filing of this one.  These four grounds are not novel arguments recently recognized as giving rise to a claim for post-conviction relief.

15
The district court added, however, that even if it were to consider the merits, it was of the opinion that Passman would not be entitled to relief.

16
Passman filed a timely notice of appeal, and, still proceeding pro se, filed a detailed and well-reasoned brief with this court.  Counsel was appointed to represent Passman after oral argument was scheduled.  The state filed a brief, virtually devoid of any reasoned analysis, that has been of no assistance in considering the difficult issues raised on appeal.  Oral argument was held, for which the state declined to appear.

II.
A.

17
Before we consider Passman's argument that his successive petition did not constitute an abuse of the writ, we begin by setting forth the factual record as the state has chosen to permit Passman to develop it.  The state did not allege and the district court did not find that Passman actually knew about the claims in the second petition when the first petition was filed.  The state did not challenge any of Passman's factual allegations concerning why the Doyle or Helm claims [463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637] were not raised in the first petition.  Therefore, the district judge properly did not hold an evidentiary hearing on Passman's factual assertions;  none was required where there were no contested issues of fact.4   The issue we face is whether the state was entitled to judgment as a matter of law on this factual record.

18
The following must be taken as true for the purposes of this proceeding.  Passman was subjectively unaware of the Doyle and Helm claims at the time he filed his first state and first federal petitions.  He first learned of the possibility of a Doyle claim while reading a law review article in 1982 after his first federal petition had been dismissed, and of the sentencing claim in 1982 while reading a Fifth Circuit opinion.  The first and second federal petitions were prepared without the assistance of counsel.  Passman did not have direct or indirect access to a law library for a lengthy period during which the first petition was prepared.  The availability of books was limited.  There is no evidence concerning Passman's education and whether he has any legal training.  There is an utter absence of evidence that Passman filed this second petition for the purpose of delay or to vex or harass the state.  Passman's first petition does evince above-average--for pro se petitioners--skill in legal research and writing.  Further, Passman would not have immediately noticed the Doyle issue upon reading the trial transcript, because his counsel did not object to the prosecutor's questioning regarding Passman's post-arrest silence.   Cf. Hamilton v. McCotter, 772 F.2d 171, 180 (5th Cir.1985) (error "appearing on the face of" trial record should have been raised).

B.

19
We turn to the issue of whether, on this factual record, Passman has proved by a preponderance of the evidence that he did not abuse the writ.  Rule 9(b) provides in pertinent part:

20
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.

21
It seems clear, despite the state's assertion to the contrary in the district court, that the first clause of Rule 9(b) is entirely inapplicable to this petition.  The plain fact is that the Doyle and sentencing claims were not included in the first petition.  Therefore, we turn to the second clause of Rule 9(b), and whether Passman's actions constitute an "abuse of the writ."

22
The salutary purpose of the abuse of the writ doctrine of Rule 9(b) "is to avoid piecemeal litigation, with petitioners advancing one claim at a time."   Rudolph v. Blackburn, 750 F.2d 302, 305 (5th Cir.1984).  However, "[w]hile the doctrine of successive petitions certainly has a place to prevent abuse of the remedy, it ought not to be used as a subterfuge or obstacle to prevent a petitioner from getting the merits of his contentions before the court."    R. Sokol, Federal Habeas Corpus at 192-93 (1969);  see generally Williamson, Federal Habeas Corpus:  Limitations on Successive Applications From the Same Prisoner, 15 Wm. & Mary L.Rev. 265 (1973).

23
Rule 9(b) does not define the phrase "abuse of the writ."    However, the legislative history of Rule 9(b) indicates that Congress intended to codify the principles governing abuse of the writ set forth in the leading case of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963):

24
As the Supreme Court has noted in reference to successive applications for habeas corpus relief and successive Sec. 2255 motions based upon a new ground or a ground not previously decided on the merits, "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."   Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963).  See also 28 United States Code, section 2244(b).

25
H.R.Rep. No. 1471, 94th Cong. 2d Sess. 5-6, reprinted in 1976 U.S. Code Cong. & Ad.  News 2478, 2482.  See Clinton, Rule 9 of the Federal Habeas Corpus Rules, 63 Iowa L.Rev. 15, 30-31, 38 (1977).  Thus, we must examine Sanders to determine what constitutes an abuse of the writ.   See Rose v. Lundy, 455 U.S. 509, 521, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982) (plurality opinion of O'Connor, J.)  (Rule 9(b) "incorporates the judge-made principle governing the abuse of the writ set forth in Sanders");  id. 455 U.S. at 534-35, 102 S.Ct. at 1211-12 (Brennan, J., concurring in part and dissenting in part) (interpretation of Rule 9(b) "necessarily entails an accurate interpretation of the Sanders standard").   See also Jones v. Estelle, 722 F.2d 159, 163 (5th Cir.1983) (en banc) ("Rule 9(b) largely codified the principles enunciated in Sanders"), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984);  L. Yackle, Postconviction Remedies Sec. 154, at 563 (1981).5

26
The Court in Sanders discussed the abuse of the writ doctrine as follows:

27
if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground....  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.

28
373 U.S. at 18, 83 S.Ct. at 1078 (quoted in Jones, 722 F.2d at 163).  As we stated in Jones, "Sanders relied on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to indicate the limits of the writ abuse doctrine."    722 F.2d at 163.    Noia held that "a petitioner loses the right to have a claim considered on a successive petition if he 'understandingly and knowingly forewent the privilege' of raising that claim in his initial petition.  The bar 'depends on the considered choice of the petitioner.' "    Id. (quoting Noia, 372 U.S. at 439, 83 S.Ct. at 849).6

29
A petitioner, even one proceeding pro se, who has actual knowledge of facts or legal theories that might be raised in a petition when the first petition is filed will in general be barred from raising those claims in a successive petition.   Jones, 722 F.2d at 163;  Autry v. Estelle, 719 F.2d 1247, 1250 (5th Cir.1983) (pro se petitioner "aware" of claim but chose to withhold it).  The district court did not find that Passman had actual knowledge of the Doyle or Helm claims in 1979.  It essentially concluded that Passman had constructive knowledge of the claims at that time--as a "skilled writ-writer" he should have known about them--thus the claims' consideration was barred in the second petition.  Therefore, this case presents the question reserved in Jones, 722 F.2d at 163 n. 3, of "whether the knowledge of a pro se petitioner is judged by an actual knowledge standard or by a constructive knowledge--such as a reasonable man--standard."7   Id.;    see also Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir.1985).8

30
In light of Sanders, there is no room in habeas corpus adjudications for an analysis that allows application of the abuse of the writ doctrine to a pro se petitioner who did not subjectively know about a particular legal claim set forth in a successive petition when an earlier petition was filed.  A pro se petitioner must, at the least, knowingly withhold a claim in order for the abuse of the writ doctrine to apply.   Sanders, 373 U.S. at 18, 83 S.Ct. at 1078;  Noia, 372 U.S. at 438-39, 83 S.Ct. at 848 49.  The withholding must be a matter of the "considered choice of the petitioner."   Noia, 372 U.S. at 439, 83 S.Ct. at 849;  see Jones, 722 F.2d at 163, 166 n. 7 (Noia "defined waiver in terms of an understanding and knowing decision by an individual to forego a claim").  As the Fourth Circuit stated in Miller v. Bordenkircher, 764 F.2d 245 (4th Cir.1985), to apply the abuse of the writ doctrine there must be " 'more than simply a failure to present a ground existing at the time of the previous petition.' "   Id. at 251 (quoting Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir.1969)).9   "As a minimum, the newly asserted ground must have been known to the petitioner at the time of the earlier petition."   Johnson, 420 F.2d at 399.

31
In short, the controlling cases give no succor to the argument that a pro se petitioner abuses the writ when he does not knowingly withhold a particular claim because he does not actually understand that the claim may be made, even though a "reasonable" pro se petitioner might have known of the claim.10   As the Court stated in Price v. Johnston, 334 U.S. 266, 291-92, 68 S.Ct. 1049, 1062-63, 92 L.Ed. 1356 (1948), an abuse of the writ case in which the Court reversed dismissal of the petitioner's fourth federal petition, "we cannot impose on [pro se petitioners] the same high standards of the legal art which we might place on members of the legal profession," and which we placed on counsel in Jones.    Pursuant to Sanders and Noia, we hold that the knowledge of facts and legal claims by a pro se petitioner is judged by an actual knowledge standard for purposes of application of the abuse of the writ doctrine.11   On this record Passman has introduced ample evidence that he did not know about the Doyle and sentencing claims when he filed his first federal petition, the state has offered no evidence whatever to the contrary, and the evidence that Passman is a "skillful writ-writer" standing alone is insufficient evidence from which to infer that he knew about the claims in 1979.  He has proved by a preponderance of the evidence12 that he did not abuse the writ;  therefore, the district court abused its discretion in applying Rule 9(b).  We turn to the merits of the Doyle and sentencing claims.

III.
A.

32
Passman testified on his own behalf at the trial.  He denied any involvement in the robbery, and offered as an exculpatory story, backed by other witnesses including his wife, that he was in Mississippi visiting relatives named Burris on the date of the crime, and had returned to his house in Louisiana at 8:00 p.m., about 1 1/2 hours before the robbery.  He stated that his mother-in-law, a Mrs. Matthews, drove him to his home in Louisiana from Mississippi, and left to return to Mississippi at 8:30 p.m.  Passman testified that after his mother-in-law left to return to Mississippi, he did not leave the house.  The robbery began at about 9:30 p.m., in a town twenty-five miles from Passman's home.   See Passman, 652 F.2d at 563-64.  Passman was arrested at his home at 10:15 p.m., twenty-three minutes after police were notified of the robbery by its victims.   Id. at 564.13

33
The prosecutor did not cross-examine Passman.  The defense rested after Passman's direct testimony, and the state immediately thereafter called as a rebuttal witness Wallace Laird, chief deputy of the sheriff's department and the supervisor of the investigation of the robbery.  The state examined Chief Laird as follows:

34
Q Chief Laird, did Glenn Passman ever tell you where he was that day?

35
A Did Glenn Passman ever tell me?

36
Q Yes, sir.

37
A No, sir, he did not.

38
Q Did he ever mention the names Mr. and Mrs. Burris to you?

39
A Not to me.

40
Q Did he ever mention the name of Mrs. Matthews, who is his mother-in-law to you?

41
A No, sir.

42
Q Did he ever tell you, to your knowledge, that he was with those people that weekend?

43
A No, sir.

44
* * *

45
* * *

46
Q During the almost two years since this happened, Chief Laird, has anybody, either Glenn Passman, his wife, Mrs. Matthews, Mr. or Mrs. Burris or anybody ever told you that Mrs. Matthews was with Glenn Passman and them until 8:30 that night?

A No, sir, not to my knowledge.14

47
Trial Tr. vol. 5, at 602-03.  Further, during closing argument the prosecutor made the following comment:

48
Let's get on Glenn Passman's witnesses, which if you noticed, he made no comments about those two upstanding people from Mississippi who testified....

49
Id. at 683.  Passman contends that Chief Laird's testimony and the prosecutor's closing argument violated his due process rights.

B.

50
In Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S.Ct. 2240, 2244-45, 49 L.Ed.2d 91 (1976), the Court held that cross-examination of a defendant concerning his post-arrest silence, offered to impeach the defendant on the theory that silence is inconsistent with an exculpatory story told at trial, deprived the defendant of the fundamental fairness guaranteed by the due process clause.  See also Wainright v. Greenfield, --- U.S. ----, 106 S.Ct. 634, 638, 88 L.Ed.2d 623 (1986);  United States v. Shavers, 615 F.2d 266, 269 (5th Cir.1980) (post-arrest silence may not be used as evidence of guilt or for impeachment purposes);  United States v. Mireles, 570 F.2d 1287, 1292 (5th Cir.1978).  The Doyle rule "is bottomed on the insoluble ambiguity of post-arrest silence that necessarily results when a defendant has been read his Miranda rights;  the defendant's silence may well indicate, not that he has no exculpatory story to tell, but that he is simply exercising the rights to which he has been advised."   United States v. Blankenship, 746 F.2d 233, 237 (5th Cir.1984);  see Stokes v. Procunier, 744 F.2d 475, 479 (5th Cir.1984).  On the other hand, a testifying defendant may be impeached with evidence of pre-arrest, pre-Miranda warning silence, because "no governmental action [has] induced [the defendant] to remain silent."   Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980).    Doyle is applicable to this case, because Passman's case was pending in the trial court (he had not yet been sentenced) at the time Doyle was decided.   Price v. King, 714 F.2d 585, 588 (5th Cir.1983).

51
As a threshold matter, we review the state's contention that Doyle is inapplicable because Chief Laird's testimony may have concerned Passman's pre-arrest silence.   See Jenkins, 447 U.S. at 240, 100 S.Ct. at 2130.  The state asserts that Passman's first contact with the police, at 10:15 p.m. on the day of the robbery, when he was handcuffed, given Miranda warnings, and placed in a police car to go to the police station, did not amount to an arrest.  Therefore, the state argues, Chief Laird's testimony may have concerned Passman's silence at that point in time, before Passman was arrested.  However, the actions of the police at 10:15 p.m. unquestionably amounted to an arrest, Passman, 652 F.2d at 564, and, in any event, Passman's silence was admittedly post-Miranda warnings.  Neither Chief Laird nor any other officer had any contact with Passman in the time period between Passman's return from Mississippi at 8:00 p.m. until Passman's arrest, a fact which was made clear to the jury during the state's case-in-chief when Chief Laird and other officers testified as to the circumstances under which they first encountered Passman.  There simply were no pre-arrest confrontations with Passman.  Therefore, we reject the state's contention that Chief Laird's testimony was not a reference to post-arrest silence.15

52
As to the merits of the Doyle claim, there are two "alternative tests for determining whether a prosecutor's or witness' remarks constitute comment on a defendant's silence."   United States v. Shaw, 701 F.2d 367, 381 (5th Cir.1983), cert. denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984).  These are (1) "whether the 'manifest intent' was to comment on the defendant's silence," or (2) "whether the character of the remark was such that the jury would 'naturally and necessarily' construe it as a comment on the defendant's silence."    Id.  "Both the intent of the prosecutor and the character of the remarks are determined by reviewing the context in which they occur."    Id.

53
In the case sub judice, it seems clear that not only did the prosecutor intend to comment on Passman's silence, but a jury would naturally and necessarily construe that to be the case.  "The standard is strict;  virtually any description of a defendant's silence following arrest and a Miranda warning will constitute a Doyle violation."   Shaw, 701 F.2d at 382.  To be sure, the jury could conceivably have believed that Passman returned from Mississippi at 8:00 p.m. and nevertheless committed the robbery.  However, the story, if believed, would have made it somewhat less likely that Passman committed the robbery, because he would have had little time to meet his confederate and travel to the site of the robbery.  Further, and more important, Passman testified that he did not commit the crime.  Passman's credibility thus was an issue in the trial.  The conclusion is inescapable that Chief Laird's testimony and the prosecutor's argument were designed and would be understood to be a comment on Passman's failure to provide the story offered at trial after his arrest, and to be a general attack on Passman's credibility.  Our conclusion on this point is further compelled by the timing of Chief Laird's testimony, immediately following Passman's direct examination.  In short, the prosecutor carefully contrived to introduce evidence of Passman's silence, which could have gone to the implausibility of Passman's arguably exculpatory story as well as to his credibility, only a matter of minutes after Passman had offered the story and denied committing the crime.  This plainly offends the principles enunciated in Doyle.

C.

54
Our inquiry does not end here, however.  A Doyle violation may constitute harmless error.   Shaw, 701 F.2d at 382.  The general harmless error test is set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which requires "the beneficiary of the constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" in order for error to be harmless.  Id. 386 U.S. at 24, 87 S.Ct. at 828.  As stated in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963), the issue is not "whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of."    Rather, the "question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction."    Id.  See United States ex rel. Miller v. Greer, 789 F.2d 438, 443 (7th Cir.1986) (en banc) ("harmless beyond a reasonable doubt" is appropriate standard to apply in collateral proceedings challenging Doyle violation);  see also Alston v. Garrison, 720 F.2d 812, 817 (4th Cir.1983) ("because the nature of a Doyle error is so egregious and so inherently prejudicial, reversal is the norm rather than the exception"), cert. denied, 468 U.S. 1219, 104 S.Ct. 3589, 82 L.Ed.2d 886 (1984);  United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir.1978) (circumstances under which comment upon silence of defendant will not result in reversal "are few and discrete").  See generally Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

55
In Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), we described three general types of Doyle violations in an attempt to weigh the effects of a Doyle error:

56
When the prosecution uses defendant's post arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant's ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous.

57
When the prosecutor does not directly tie the fact of defendant's silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.

58
When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.

59
Id. at 1249.  We have recognized, however, that not all cases fit neatly into these categories.   See, e.g., Alderman v. Austin, 695 F.2d 124, 126 n. 7 (5th Cir.  Unit B 1983) (en banc) (Chapman categories not to be used as "rigid rules");  United States v. Shavers, 615 F.2d at 270;  cf. United States v. Ylda, 643 F.2d 348, 350 (5th Cir.1981) (Chapman not applied where prosecution did not actually evoke testimony regarding defendant's silence, but only asked improper question).

60
This case does not seem to fall squarely into any of the categories of cases discussed in Chapman v. United States.    The prosecutor, through a direct examination of Chief Laird, directly linked Passman's post-arrest failure to provide the story about the trip to Mississippi to the police with the plausibility of that story at trial.  But the plausibility of that story, the story challenged, was hardly of central relevance to the defense.  It provided only marginal evidence that Passman could not practicably have been involved in the robbery.  It was not truly an exculpatory story, because Passman could have returned from Mississippi at 8:00 p.m., waited until his mother-in-law left at 8:30, and still have committed the robbery at 9:30.  Rather, the heart of the defense was Passman's subsequent testimony that he did not take part in the robbery and that he was at home with his wife when the robbery occurred.  It is only when Doyle errors go to the heart of the defense that the first category of Chapman is implicated.  The prosecutor simply did not ask Chief Laird whether Passman had denied taking part in the robbery after arrest;  therefore, the first Chapman category does not apply.   Compare United States v. Harp, 536 F.2d 601, 603 (5th Cir.1976);  United States v. Smith, 635 F.2d 411, 413 (5th Cir.1981);  United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir.1977).16

61
However, Passman's general credibility was undoubtedly called into question by Chief Laird's testimony, even though Chief Laird's testimony did not directly attack Passman's exculpatory story.  If the jury believed that Passman fabricated his story about going to Mississippi, it could have inferred that Passman's statement concerning his involvement in the robbery likewise was fabricated.  Therefore, the issue before us is whether there is a reasonable possibility that the prosecutor's attack on Passman's general credibility through evidence admitted in violation of Doyle might have contributed to the guilty verdict.

62
We are guided by language in the Supreme Court's recent opinions in Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).  In Clark, the Court held that a harmless error analysis could be applied in a case involving a jury instruction unconstitutional under the principles set forth in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).  The Court stated that "while there are some errors to which Chapman [v. California] [, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705] does not apply, they are the exception and not the rule."    106 S.Ct. at 3106.  The Court continued:

63
[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis.  The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments.  Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.  As we have repeatedly stated, "the Constitution entitles a criminal defendant to a fair trial, not a perfect one."

64
Id. at 3106-07.

65
The Court in Clark relied in part on its earlier decision in Hasting, which considered a violation of the fifth amendment when a prosecutor referred in closing argument to the failure of the defense to introduce evidence on a particular point, a violation quite similar to that in the case sub judice.    The Court of Appeals reversed the conviction without examining the evidence of the defendants' guilt.  The Supreme Court reversed:

66
Since Chapman [v. California] [, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705] the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional errors.

67
Id. 461 U.S. at 509, 103 S.Ct. at 1980 (emphasis added).  The Court summarized the nature of a reviewing court's function:

68
The question a reviewing court must ask is this:  absent the prosecutor's allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?

69
Id. at 510-11, 103 S.Ct. at 1981-82.  The Court proceeded to examine the "whole record."17

70
There can be no doubt that Passman's credibility was an important part of this case, as it is in any case in which the defendant testifies under oath that he did not commit the crime, contradicting prosecution witnesses.  If the jury believed Passman rather than the three victims who identified him, then the guilty verdict would not have been returned.  But, as noted above, this is not a case in which the prosecution directly challenged through evidence that violates Doyle a truly exculpatory story offered by a defendant for the first time at trial.   Compare Harp, 536 F.2d at 603;  Price, 714 F.2d at 588.  Here, unlike Price, the prosecutor did not "directly link" the implausibility of Passman's exculpatory story--that he was at home while the robbery was committed--to his ostensibly inconsistent post-arrest silence.  Id. (emphasis added).  Rather, that exculpatory story was only indirectly attacked by Chief Laird's testimony, a fact which makes it less likely that the jury would have concentrated on the testimony or found it of substantial importance.  Further, and very importantly, this is not a case which essentially comes down "to a one-on-one situation, i.e., the word of the defendant against the word of the key prosecution witness, and there is no corroboration on either side," as in Velarde v. Shulsen, 757 F.2d 1093, 1095 (10th Cir.1985).  In that situation, "the importance of the defendant's credibility becomes so significant that prosecutorial error attacking that credibility cannot be considered harmless beyond a reasonable doubt."    Id.18  Here, however, there was a greater opportunity for assessment of the witness' credibility.  The three victims--not just one--testified unequivocally that Passman was the individual who robbed them in their home.  Their testimony was not shaken despite vigorous and spirited cross-examination by Passman's counsel.  The victims had a lengthy period of time to observe the robbers, perhaps up to twenty minutes in a fully lighted house.  Further, Passman's testimony concerning the events of the evening in question was, in large part, corroborated by the testimony of his wife, and, to a lesser extent, his mother-in-law.  The jury was required to reject the credibility of Passman's wife as well as of Passman to return a guilty verdict, and her credibility was unaffected by Chief Laird's testimony.

71
Further, and significantly, the testimony of Passman's wife was inconsistent with Passman's story in one crucial aspect.  Passman testified that upon returning to Louisiana from Mississippi, he, his wife, and his mother-in-law stopped at several convenience stores in order to find a newspaper.  Passman testified that he was unemployed, and wanted a newspaper to look for a job in New Orleans;  he assertedly intended to go to New Orleans to apply for jobs on the day after the robbery.  Passman testified that they "never did find" a paper, Trial Tr. at 599.  Passman's wife, on the other hand, testified that when Passman was arrested, he was lying in bed reading a newspaper.  Trial Tr. at 587.  Although Passman's wife did not state that the newspaper that Passman was reading had been bought earlier that day, which would have directly conflicted with Passman's testimony, such an inference would have been entirely reasonable in light of Passman's asserted absence from his house for several days.

72
Finally, the victims told police that one robber was wearing a bandanna around his head at the time of the robbery.  The arresting officer testified that when he effected the arrest, Passman had a mark on his forehead and his hair was pressed down, as if he had recently worn a bandanna.

73
The question is close, largely because of the timing of the improper testimony.  But the testimony was not dwelled on in closing arguments, nor did the trial court instruct the jury that silence could be used as impeachment.  Even taking into account the inherent problems of eyewitness identification, see Manson v. Brathwaite, 432 U.S. 98, 112, 97 S.Ct. 2243, 2251, 53 L.Ed.2d 140 (1977), the three victims testified forcefully as to the certainty of the identification.  Under the circumstances of this trial, Passman's credibility was in all probability damaged more severely by the apparent inconsistency of his and his wife's stories on a point of crucial significance, than by the prosecutor's indirect challenge to that credibility by a questioning of the veracity of Passman's testimony concerning the essentially irrelevant trip to Mississippi.  That questioning, although ill-advised, added little to the prosecution's case.  After an examination of the entire trial record, we conclude that if the improper testimony had not been admitted, it is clear beyond reasonable doubt that the jury would have returned a verdict of guilty.

IV.

74
Finally, we turn to Passman's claim that his sentence violates the eighth amendment.  As he notes, "Solem v. Helm, [463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ], is relied upon almost entirely for the relief sought ..."  Under Helm:

75
[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty;  (ii) the sentences imposed on other criminals in the same jurisdiction;  and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

76
Id. 463 U.S. at 292, 103 S.Ct. at 3010.  However, "[i]n view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate."   Id. at 290 n. 16, 103 S.Ct. at 3009 n. 16.   See United States v. Lamp, 779 F.2d 1088, 1098 (5th Cir.1986).

77
Passman's sentence was harsh, particularly for a first-time felony offender.  The unavailability of parole within a reasonable time also seems to favor Passman's argument that his sentence is unconstitutionally severe.   Cf. Moreno v. Estelle, 717 F.2d 171, 180 (5th Cir.1983).  But as to the gravity of the offense, the crime of armed robbery is in general a very serious felony.  Further, examining the specific circumstances of this offense, cf. Enmund v. Florida, 458 U.S. 782, 797-801, 102 S.Ct. 3368, 3376-79, 73 L.Ed.2d 1140 (1982), we can state unequivocally that they militate in favor of a severe sentence;  this armed robbery was particularly serious.  The victims were robbed in their home.  One victim, a 78-year-old man, was shot and seriously wounded.  Another victim, a 16-year-old girl, testified that Passman sexually abused her.  The victims had guns placed to their heads and were repeatedly threatened with death.

78
Second, we should compare the sentence Passman received with those received by other criminals in Louisiana.  "If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive."   Helm, 463 U.S. at 291, 103 S.Ct. at 3010.  Among the crimes punishable by imprisonment for up to 99 years, without parole, or for life without parole, in Louisiana are:  first degree murder, La.Rev.Stat.Ann. Sec. 14:30(C);  aggravated rape, id. Sec. 14:42(C);  aggravated kidnapping, id. Sec. 14:44;  and armed robbery, id. Sec. 14:64(B).  We cannot conclude that the crimes of aggravated rape and aggravated kidnapping are more serious from a societal viewpoint than armed robbery.  Rather, these crimes are all extremely serious, and they carry essentially identical serious penalties.  Taking into account the "absolute magnitude" of the crime of armed robbery, Helm, 463 U.S. at 293, 103 S.Ct. at 3011, a 99-year sentence without possibility of parole is not necessarily constitutionally inappropriate.19

79
Finally, Passman makes no argument that the punishment assessed in his case is disproportionate to the punishment given armed robbers in other jurisdictions.

80
Under these circumstances, we conclude that Passman's sentence is proportionate to the crime for which he was convicted, and does not violate the eighth amendment, under the principles set forth in Solem v. Helm.

V.

81
For the foregoing reasons, the judgment of the district court is affirmed.

82
AFFIRMED.

1
 Our precedents allow the district court to raise sua sponte the issue of abuse of the writ under Rule 9(b).   Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir.1985)

2
 The third and fourth claims in Passman's second petition relating to the sufficiency of the evidence are not mentioned in his brief on appeal;  therefore, we consider those claims abandoned

3
 This claim, which appears patently frivolous, see State ex. rel. Passman v. Maggio, 457 So.2d 2 (La.1984), has not been briefed on appeal;  therefore, we consider it waived

4
 See Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983) (en banc) (successive petition may be dismissed without hearing if petitioner could not justify successive petition "as a matter of law"), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984).  We have previously noted, in the context of Rule 9(a), that the standards of Fed.R.Civ.P. 56(c) concerning standards for summary judgment govern whether a Rule 9(a) dismissal may be effected summarily, without a hearing.   McDonnell v. Estelle, 666 F.2d 246, 252 (5th Cir.1982);  see Habeas Rule 11, Fed.R.Civ.P. 81(a)(2);  see also Soileau v. Blackburn, 789 F.2d 1209, 1210 (5th Cir.1986).  Consideration of whether dismissal under Rule 9(b) is appropriate, like that under Rule 9(a), is "necessarily fact oriented."   Urdy v. McCotter, 773 F.2d 652, 656 (5th Cir.1985).  Therefore, it seems sensible, as we did in Jones v. Estelle, 692 F.2d 380, 384-85 (5th Cir.1982), to apply the standards of Rule 56 to this Rule 9(b) issue.  Accordingly, in order for a dismissal under Rule 9(b) to be appropriate without an evidentiary hearing, there must be no genuine issue of material fact, and the dismissal must be appropriate as a matter of law.  Id.;  see Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948)

5
 We noted in Jones that perhaps not all the principles set forth in Sanders were codified in Rule 9(b).  722 F.2d at 167 n. 7.  For example, although Sanders could arguably be read to require personal waiver of federal rights by a petitioner, Sanders was not so read by the Supreme Court at the time Rule 9(b) was codified.  See id.  (citing Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965)).  The discrete issue before us, however, is the state of a pro se petitioner's knowledge of claims for purposes of application of the abuse of the writ doctrine.  The principles of Sanders that govern that issue do not appear to have been altered by the Supreme Court in the intervening years before Rule 9(b) was codified

6
 See also 28 U.S.C. Sec. 2244(b);  Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 525, 68 L.Ed. 999 (1924)

7
 In Jones, we decided that a prisoner's actual knowledge of claims that he failed to assert in one petition was irrelevant when the petitioner was represented by competent counsel in preparing that petition.  722 F.2d at 169.  In such cases, a petitioner "is chargeable with that awareness that a competent lawyer would have possessed."    Id

8
 The state contends in passing that the lapse of time between the conviction and this appeal should bar consideration of the petition, citing to the Chief Justice's written statement regarding a denial of certiorari in Spalding v. Aiken, 460 U.S. 1093, 103 S.Ct. 1795, 76 L.Ed.2d 361 (1983).  Suffice it to say that delay is a matter to be considered under Rule 9(a), not Rule 9(b), and then only on the question of whether the state "has been prejudiced in its ability to respond to the petition by delay in its filing."   Vasquez v. Hillery, --- U.S. ----, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986).  It is no defense to a habeas corpus petition that the state may be unable to retry the petitioner.  Id.  In any event, the state does not claim that it will be unable to retry Passman, and it has not asserted that it was unable to respond to the allegations of the petition.  At no time has the state suggested that Rule 9(a) is applicable to this case.  As the state has chosen to frame the issues in this matter, the delay between the conviction and this petition is irrelevant

9
 In Hamilton v. McCotter, 772 F.2d 171 (5th Cir.1985), a case concerning waiver by a petitioner represented by counsel, the court stated that "[w]e have said that the appropriate standard against which to determine abuse of the writ is not whether a successive petitioner intended to bypass an issue at the time of the previous petition, but 'whether he withheld it without legal excuse when he filed his earlier petition.' "   Id. at 176 (quoting Jones, 722 F.2d at 163).  In the case sub judice, the issue is whether the lack of subjective knowledge of a claim constitutes legal excuse

10
 See Booker v. Wainright, 764 F.2d 1371, 1376 (11th Cir.1985) ("petitioner may avoid dismissal if he proves by a preponderance of the evidence that he was ignorant of the facts necessary to support the new ground when he filed his prior habeas petition"), cert. denied, --- U.S. ----, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985);  Burnside v. White, 760 F.2d 217, 219-20 (8th Cir.)  (Rule 9(b) dismissal inappropriate absent allegation that petitioner "deliberately failed" to raise new claim in earlier petition), cert. denied, --- U.S. ----, 106 S.Ct. 576, 88 L.Ed.2d 559 (1986);  L. Yackle, supra, at Sec. 155;  cf. Hamilton, 772 F.2d at 179 ("pro se petitioner's ignorance of the legal significance of facts known to him at the time of the earlier petition might provide an excuse for failure to raise those issues in the prior proceeding");  Jones, 722 F.2d at 165;  Vaughan v. Estelle, 671 F.2d 152, 153 & n. 5 (5th Cir.1982)
A leading commentator has stated that the Supreme Court has "come ever so close" to changing the law in this area, replacing Sanders with the standard for default set forth in Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which addresses the effect of a petitioner's procedural default in state court.  L. Yackle, supra, Sec. 155, at 563 n. 33 (Supp.1986).  Indeed, in recent capital cases, a majority of the Court has not expressly applied Sanders when ruling on successive petitions, although those decisions do seem to be consistent with the principles set forth in Sanders.    In Woodard v. Hutchins, 464 U.S. 377, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984) (per curiam), the Court vacated a stay of execution.  Justice Powell, joined by four other justices, stated in a concurring opinion that the new claims were "a clear example of the abuse of the writ ... [because] [a]ll three of [petitioner's] claims could and should have been raised in his first petition for habeas corpus."    Id. 464 U.S. at 379, 104 S.Ct. at 753.  Justice Powell stated that there was "no explanation as to why they were not all raised in one petition."    Id.  Although that fact alone differentiates Hutchins from the case sub judice, it is clear that a substantial ground for Justice Powell's opinion was the fact that Hutchins was on death row:
A pattern seems to be developing in capital cases of multiple review in which claims that could have been presented years ago are brought forward--often in a piecemeal fashion--only after the execution date is set or becomes imminent.
Id. 464 U.S. at 380, 104 S.Ct. at 753.  Accordingly, it seems clear that the concurrence in Hutchins is consistent with Sanders, which held that a successive petition may be dismissed if it is filed for the purpose of delay.  A capital sentence may not be carried out, of course, if a judge grants a stay of execution while considering a habeas corpus petition, whether it be a prisoner's first or his fiftieth petition.  Therefore, a successive petition clearly could be filed simply to delay implementation of the state's sentence in a capital case.  Delay alone in a non-capital case, on the other hand, is less problematic, so far as the state is concerned.  The state's sentence has been executed and the prisoner is incarcerated at the time each habeas petition is filed, although even in a non-capital case the state has an interest in avoiding repeated defenses of the same conviction.
In Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984), the Court denied a stay of execution to a petitioner with a successive petition.  The claims raised in the second federal petition had been raised in the prisoner's first state petition.  Therefore, the petitioner "hardly can contend that these claims  were unknown to him" when he filed his first federal petition.  Id. 465 U.S. at 206, 104 S.Ct. at 965.  Further, the Court stated that the claims raised were "meritless."   Id. at 207, 104 S.Ct. at 965.    Antone simply stands for the proposition, settled in this circuit, that a petitioner may be barred from presenting a second petition when he or, inferentially, his counsel actually knew of the claims raised in the second petition at the time the first petition was filed.
Therefore, it appears none of the recent Supreme Court jurisprudence in this area has effected a change in the principles of Sanders concerning the abuse of the writ doctrine, even assuming that such a change could be effected in light of Congress' codification of Sanders into Rule 9(b), see L. Yackle, supra, Sec. 155, at 564 ("congressional endorsement of the Sanders approach in Rule 9(b) would surely make any significant departure from present law difficult").

11
 The instant case does not implicate or alter the rule of Jones v. Estelle, 692 F.2d 380 (5th Cir.1982), in which we held that a petitioner's subjective awareness of the abuse of the writ doctrine and the need to raise all known claims in one petition is irrelevant to application of the doctrine.  Rather, the only issue before us regarding the abuse of the writ doctrine is the standard for determining a petitioner's knowledge of legal claims

12
 See Daniels, 763 F.2d at 707.   Compare Hamilton, 772 F.2d at 175 ("conclusory claim" insufficient to show ignorance of legal issue);  Booker, 764 F.2d at 1377 ("bald allegation" of ignorance insufficient to meet burden)

13
 The reason why the investigation focused immediately on Passman is not clear from the trial record.  Two men took part in the robbery.  One of the victims identified one of the attackers from a photo array immediately after the robbery as Walter Burnette.  The victims were not shown a picture of Passman, and they described the second attacker simply as "tall, dark-complexioned."    Police in Covington, Louisiana, the site of the robbery, immediately radioed police in Hammond, where Passman lived, to "stake his house out."    That decision was made after receipt of "particular police information" and "other information," Trial Tr. at 515, 517, which was not specified at trial.  In closing argument, however, the prosecutor stated that police went to Passman's house solely because of the description the victims gave police.  Id. at 686.  There seems to be no evidentiary basis for the latter statement

14
 Chief Laird did testify, however, that Passman's wife told him that the couple had been fishing in Mississippi earlier in the weekend when police arrested Passman.  Passman's wife had so testified during the defense's case in chief

15
 The state's only argument as to the applicability of Doyle is that the testimony may have concerned pre-arrest silence.  The state does not argue that Chief Laird's testimony, even if it concerned Passman's post-arrest silence, did not violate Doyle because the evidence referred to silence not in the immediate post-arrest time frame.  The Court in Doyle did not address this issue.  426 U.S. at 616 n. 6, 96 S.Ct. at 2244 n. 6;  see United States v. Mireles, 570 F.2d 1287, 1292 & n. 8 (5th Cir.1978) ("comments on silence at times subsequent to the immediate post-arrest period present[ ] 'different considerations from those implicated by cross-examining petitioners or defendants as to their silence after receiving Miranda warnings at the time of arrest' ")

16
 See also United States v. Meneses-Davila, 580 F.2d 888, 895 (5th Cir.1978);  United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir.1977) (evidence admitted in violation of Doyle "went to the heart of the sole defense, encouraging the jury to believe that the defense was fabricated after arrest");  United States v. Luna, 539 F.2d 417, 417 (5th Cir.1976).   Cf. Williams v. Zahradnick, 632 F.2d 353, 361 & n. 10 (4th Cir.1980) ("When refutation of an exculpatory defense is the purpose [of prosecution conduct that violates Doyle ], attack is on the jugular of the defendant's case, his innocence, and it is rarely declared harmless.")  (citing Harp, 536 F.2d at 602-03)

17
 In a recent case interpreting Doyle, the Court declined to evaluate the harmlessness of Doyle error because the state failed to raise the issue.    Wainright v. Greenfield, --- U.S. ----, 106 S.Ct. 634, 640 n. 13, 88 L.Ed.2d 623 (1986)

18
 In Miller, 789 F.2d at 446, the Seventh Circuit sitting en banc refused to find Doyle error harmless when the "crux" of the trial was whether the jury believed prosecution witnesses or the defendant.   See United States v. Johnson, 495 F.2d 242, 246 n. 5 (10th Cir.1974) (where the essence of a case is jury determination of defendant's credibility, admission of tainted evidence regarding that credibility cannot be harmless)

19
 Passman has offered extensive evidence concerning the sentences given other convicted armed robbers in Louisiana.  That evidence is simply not relevant to an application of the second prong of Helm.  Cf. id. 463 U.S. at 293, 103 S.Ct. at 3011


342 F.2d 419
Everett R. BROOM, Appellant,v.UNITED STATES of America, Appellee.
No. 21686.
United States Court of Appeals Fifth Circuit.
March 12, 1965.

Warren Burnett, Odessa, Tex., for appellant.
Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., Barefoot Sanders, U. S. Atty., Fort Worth, Tex., for appellee.
Before TUTTLE, Chief Judge, and BROWN and FRIENDLY,* Circuit Judges.
PER CURIAM:

1
Broom appeals from his conviction under 18 U.S.C.A. § 2313.1 The indictment charged Broom with the sale of a stolen automobile in interstate commerce, and the facts on trial conclusively demonstrated that he sold in Tahoka, Texas an automobile which had been stolen six days earlier in Illinois. As the title papers to effectuate the transfer from Broom were purportedly executed at about this time in Oklahoma, there was ample basis for the jury to conclude that the vehicle was still in the required interstate movement.

2
The critical issue is knowledge by Broom that it was a stolen car. Of course the law has long recognized that an unexplained possession of a recently stolen automobile is sufficient basis for the jury to infer knowledge. Appellant has no quarrel with the rule but insists that an adequate explanation — that Broom in good faith purchased the auto from another in Texas with whom he had previously dealt — was made in this instance. Stressing Cherry v. United States, 7 Cir., 1935, 78 F.2d 334 and similar cases, Broom contends in effect that in the absence of controverting evidence this explanation has to be credited and consequently the Government failed to prove guilty knowledge beyond a reasonable doubt. The adequacy and truthfulness of the explanation given originally — at the time when the accused is first called upon to explain — is generally a question for the jury. Here the evidence revealed a number of suspicious circumstances, not the least of which were many inconsistencies and errors in the title and transfer papers. The circumstances were sufficiently serious for the Tahoka purchaser to report his apprehension to Texas state authorities. And on the trial all of these facts were adequate to warrant the jury in disbelieving Broom's explanation of his possession. It was for the jury. There it ends.

3
Affirmed.

Notes:

*
 Of the Second Circuit, sitting by designation

1
 18 U.S.C.A. § 2313 provides: "Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes, interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned more than five years, or both."