*Circuit Judge of the Eighth Circuit, sitting by designation.

1

United States Court of Appeals,

Fifth Circuit.

No. 96-30638.

Ronald GLOVER, Petitioner-Appellant,

v.

Burl CAIN, Warden,

and

Richard Ieyoub, Attorney General, State of Louisiana,

Respondents-Appellees.

Nov. 20, 1997.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before MAGILL,* SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ronald Glover appeals the denial of his petition for writ of

habeas corpus. Concluding that he has failed to demonstrate cause

for his procedural default, we affirm.

I.

In 1985, during a single proceeding encompassing two separate

cases, Glover pleaded guilty to four counts of armed robbery, three

counts of forcible rape, four counts of simple kidnapping, three

counts of aggravated crimes against nature, three additional counts

of armed robbery, and one count of attempted armed robbery. He was

sentenced to forty years' hard labor.

Glover's long march through the post-conviction legal system
2

began in May 1990, when he requested the transcript of his 1985

plea and sentencing proceeding. In July 1990, the state trial

court ordered the court reporter to furnish Glover with the

transcript. In February 1991, the state court of appeal granted

Glover a writ of mandamus, directing the state court to enforce its

initial order. In May 1991, the court of appeal again ordered that

Glover be provided a transcript. Glover did not receive the

transcript until December 1991.

In the midst of Glover's quest for the transcript, Louisiana

enacted a law limiting a prisoner's ability to seek post-conviction

relief. That statute, LA.CODE CRIM.PROC. art. 930.8, effective

October 1, 1990, provides that "[n]o application for post

conviction relief, including applications which seek an out-of-time

appeal, shall be considered if it is filed more than three years

after the judgment of conviction and sentence has become final."

The statute granted a one-year grace period to prisoners whose

cause of action otherwise would be immediately extinguished.

Because Glover—having been sentenced in 1985—fell into this

category, he had until October 1, 1991, to file his claim. On

September 12, 1991, he sought an extension on grounds that he had

yet to receive the transcript. The trial court denied his motion,

and the court of appeal affirmed.

Despite the denial of an extension, Glover failed to file

before the deadline. In February 1992, he finally filed an

application for post-conviction relief. The trial court denied his

application, and the court of appeal affirmed, finding his claim
 

1Specifically, Glover argued that (1) the state trial court

failed to inform him of the nature and elements of his offenses;

(2) his guilty pleas lacked a factual basis; (3) the state failed

to honor its side of the plea agreement; (4) the state trial court

failed to inform him that some of his sentences must be served

without benefit of probation, parole, or suspension of sentence;

(5) the state trial court failed to inform him of maximum possible

sentences and the maximum possible accrued sentence; (6) the state

trial court failed to credit him for time served; (7) the state

trial court orally amended the indictment; (8) the state trial

court failed to enter a signed final order; (9) the Louisiana

statute (art. 930.8) is unconstitutional; (10) the Louisiana

Supreme Court erroneously found the statute constitutional; and

(11) he was erroneously denied an evidentiary hearing in state

court. 

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procedurally barred under art. 930.8. Glover then proceeded to the

Louisiana Supreme Court, which affirmed the appellate court's

conclusion that the claim was untimely and rejected Glover's

constitutional challenge to the statute. See State ex rel. Glover

v. State, 660 So.2d 1189 (La.1995).

Glover next sought habeas relief in federal court, pressing a

litany of claims.1 The federal district court found that Glover

had exhausted his state remedies but agreed with the state courts

that his suit was procedurally barred and that the statute was

constitutional. Glover was then granted a certificate of

appealability limited to the question whether he had shown cause

for his procedural default in state court.

II.

We review a district court's denial of federal habeas review

based on state procedural grounds de novo and its findings of fact

for clear error. Amos v. Scott, 61 F.3d 333, 338 (5th Cir.1995).

Our review of Glover's claims is bounded by the independent and

adequate state grounds doctrine.
4

In Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,

2565, 115 L.Ed.2d 640 (1991), the Court held:

In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the

claims is barred unless the prisoner can demonstrate cause for

the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscarriage

of justice.

This doctrine ensures that federal courts give proper respect to

state procedural rules. Id. at 750-51, 111 S.Ct. at 2564-66.

Accordingly, before we can reach the merits of Glover's habeas

claim, we must find that he has demonstrated cause for his

procedural default.

A.

We begin by asking whether Glover defaulted his claims

pursuant to an "independent and adequate" state rule. In Amos, 61

F.3d 333, we recognized that in order to fulfill the independence

requirement, the last state court rendering a judgment must

"clearly and expressly" indicate that its judgment rests on a state

procedural bar. Id. at 338. In denying Glover's application, the

Louisiana Supreme Court clearly and expressly indicated that its

ruling was premised on the untimeliness of the claim under LA.CODE

CRIM.PROC. art. 930.8. See Glover, 660 So.2d at 1201-02 (affirming

judgment of court of appeal, which barred Glover's claim pursuant

to the statute). The court's holding is sufficient to fulfill the

independence requirement.

The state procedural rule also must be adequate. An

"adequate" rule is one that state courts strictly or regularly
 

2See, e.g., State ex rel. Nelson v. Louisiana, 699 So.2d 87

(La.1997); State ex rel. Russell v. Louisiana, 699 So.2d 86

(La.1997). 

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follow, and one that is applied evenhandedly to the vast majority

of similar claims. Amos, 61 F.3d at 339 (citing Johnson v.

Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d

575 (1988), and Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct.

1211, 1217 n. 6, 103 L.Ed.2d 435 (1989)). Moreover, "[a] state

procedural rule enjoys a presumption of adequacy when the state

court expressly relies on it in deciding not to review a claim for

collateral relief." Lott v. Hargett, 80 F.3d 161, 165 (5th

Cir.1996).

There is no suggestion that art. 930.8 has been applied

selectively or irregularly. Because Louisiana courts have

regularly invoked the statute to bar untimely claims,2 we find

nothing to trump the presumption of adequacy.

B.

We now turn to Glover's central contention: that the state's

delay in furnishing him with a transcript of his plea and

sentencing proceeding constitutes "cause" under Coleman. This is

a question we expressly reserved in McCowin v. Scott, 67 F.3d 100,

102 (5th Cir.1995), in which we held that, for purposes of Rule

9(b) of the Rules Governing Section 2254 Cases, a prisoner's lack

of access to a transcript cannot constitute cause if he has not

allowed the state a reasonable amount of time to respond to his

request before filing his initial habeas petition. Because the

prisoner in McCowin had failed to meet this requirement, we avoided
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the broader question of whether a state's failure promptly to

furnish a transcript may constitute cause. Id.

Other circuits have split on this question. The Eleventh

Circuit has held that failure to furnish a trial transcript for a

direct appeal in state court may suffice as cause. See Dorman v.

Wainwright, 798 F.2d 1358, 1370 (11th Cir.1986). The Seventh and

Eighth Circuits have reached the opposite conclusion in unpublished

opinions. See Mitchell v. Ahitow, 27 F.3d 569, 1994 WL 323211 (7th

Cir.1994) (per curiam) (unpublished); United States v. Evans, 12

F.3d 1103, 1993 WL 503252 (8th Cir.1993) (per curiam)

(unpublished).

The Supreme Court has sketched the contours of what

constitutes cause for a procedural default. In Murray v. Carrier,

477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court held

that a defense counsel's inadvertent failure to raise a substantive

claim of error is insufficient to establish cause. The Court

explained that cause requires an external impediment:

[W]e think that the existence of cause for a procedural

default must ordinarily turn on whether the prisoner can show

that some objective factor external to the defense impeded

counsel's efforts to comply with the State's procedural rule.

Without attempting an exhaustive catalog of such objective

impediments to compliance with a procedural rule, we note that

a showing that the factual or legal basis for a claim was not

reasonably available to counsel, or that some interference by

officials made compliance impracticable, would constitute

cause under this standard.

Id. at 488, 106 S.Ct. at 2645 (internal citations and quotation

marks omitted).

Applying this standard, we find that Glover has not shown that

his failure to receive a transcript before the filing deadline
 

3The First Circuit has addressed a similar question in a

related context. In Andiarena v. United States, 967 F.2d 715 (1st

Cir.1992), the court held that a petitioner who did not have access

to the transcripts of his trial had not established cause for

failing to raise certain arguments in his initial habeas petition.

The court noted that "the factual and legal basis underlying each

of these claims was obviously apparent at the time of trial." Id.

at 719. 

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prevented him from developing a factual or legal basis for his

claim. Glover concedes that he knew the facts underlying his

allegation that the state breached the plea agreement. More

importantly, he does not allege the existence of legal claims he

needed the transcript to uncover; his argument is that he lacked

supporting facts that could flesh out his legal claims.

Glover's knowledge of his legal claims is illustrated by his

pleadings, filed with the district court, in which he acknowledged

that prior to receiving the transcript, he was aware that a

conviction for armed robbery did not allow for parole eligibility,

as he alleges he was led to believe at his sentencing. Glover

further admitted that, prior to receiving the transcript, he knew

that his parole eligibility date was some ten years later than the

date he had supposedly been promised. Finally, Glover conceded

that, prior to receiving the transcript, he was aware that his

earliest release date was twenty-six years away, rather than the

thirteen-year period he had purportedly agreed to. This knowledge

was more than sufficient to form a factual and legal basis upon

which an application could be filed.3

As the Louisiana Supreme Court observed, because Glover was

aware of his underlying legal claims, he could have filed his
 

4"We believe our decision in Duhon [v. Whitley, 642 So.2d 1273

(La.1994) ] provides additional assistance to inmates facing the

constraints of Art. 930.8 by ensuring that a petitioner who timely

files an application for post conviction relief will, in the

discretion of the trial court and when justice requires it, have

the opportunity to amend and supplement his application." Glover,

660 So.2d at 1197 n. 8. 

 

5Because we find that Glover has failed to show cause for his

procedural default, we need not consider whether he suffered actual

prejudice. See Glover v. Hargett, 56 F.3d 682, 684 (5th Cir.1995).

8

application before the deadline, then moved to supplement the

record.4 From the moment of his sentencing until the deadline

imposed by art. 930.8, Glover had more than six years in which to

file an application. That he did not do so cannot be blamed on a

tardy transcript.

Glover argues that the state's failure promptly to provide him

with the transcript was an external factor beyond his control.

This contention may be correct, but it misses the point. The

question is not whether an external factor prevented him from

receiving the transcript, but whether an external factor prevented

him from developing a "factual or legal basis for a claim."

Murray, 477 U.S. at 488, 106 S.Ct. at 2645.

In sum, the district court's finding that Glover was aware of

the basis for his claims is supported by the evidence. Glover has

not shown, as the Court required in Murray, that the denial of the

transcript precluded him from developing a factual or legal basis

for a claim.5

III.

Finally, Glover has not established that a "fundamental
9

miscarriage of justice" will occur if his claim is deemed time

barred. In order to prove a fundamental miscarriage of justice,

the prisoner must assert his actual innocence. Glover v. Hargett,

56 F.3d 682, 684 (5th Cir.1995). Glover has not raised that claim

here.

AFFIRMED.