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United States Court of Appeals,

Fifth Circuit.

No. 95-40244

Summary Calendar.

Willie Lee McCOWIN, Plaintiff-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, Defendant-Appellee.

Oct. 23, 1995.

Appeal from the United States District Court for the Eastern

District of Texas.

Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge.

Willie McCowin appeals the dismissal of his second application

for a writ of habeas corpus on the grounds of abuse of the writ.

See 28 U.S.C. § 2254; Rule 9(b), Rules Governing § 2254 Cases. We

affirm.

After a Texas appellate court affirmed his conviction for

burglary of a habitation, McCowin petitioned for state habeas

relief. Reviewing several affidavits from McCowin's trial counsel

and other witnesses, a Texas trial court made findings of fact and

conclusions of law, pursuant to which the Texas Court of Criminal

Appeals denied McCowin's petition. McCowin then sought federal

habeas corpus under section 2254, raising claims of sufficiency of

the evidence and ineffective assistance of counsel. The district

court denied the petition, and this court affirmed.

Undeterred, McCowin invoked section 2254 a second time, again
 

1We also agree with the district court that McCowin has

provided no reason for us to reconsider those claims in his

current petition identical to those raised in his first. 

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raising ineffective assistance of counsel along with a hearsay

argument. The court below dismissed this second petition as an

abuse of the writ, and McCowin appealed. Reviewing the dismissal

for abuse of discretion, see Hudson v. Whitley, 979 F.2d 1058, 1062

(5th Cir.1992), we agree that McCowin showed no cause for his

failure to raise his new claims in his first federal petition.1 We

therefore do not reach the merits of McCowin's claims.

To avoid dismissal on abuse of the writ grounds, McCowin must

meet the cause and prejudice standard originally articulated in

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594

(1977). McCowin presents three reasons for his failure to raise

certain of his claims in his first petition: that he is proceeding

pro se, that the state habeas court did not hold a hearing, and

that he lacked a transcript of his state court proceedings. We

find each reason unconvincing.

We agree with the district court that McCowin's first two

arguments fail to establish cause. By itself, the fact that a

prisoner proceeds pro se is not cause in this circuit. Saahir v.

Collins, 956 F.2d 115, 118 (5th Cir.1992). We find nothing unusual

in this case to enhance the importance of McCowin's pro se status.

Nor does the form of the Texas habeas court's proceeding establish

cause. Infirmities in state habeas corpus proceedings do not

constitute grounds for federal relief, Duff-Smith v. Collins, 973

F.2d 1175, 1182 (5th Cir.1992), cert. denied, --- U.S. ----, 113
 

2We note also that other circuits have reached identical

conclusions in unpublished opinions. See Ellis v. Welborn, No.

93-2398, 1994 WL 712618, at *2, 1994 U.S.App. LEXIS 36236, at

**5-6 (7th Cir. Dec. 21, 1994); Hamilton v. Bunnell, No. 93-

56574, 1994 WL 465836, at *1-2, 1994 U.S.App. LEXIS 23760, at

**5-6 (9th Cir. August 29, 1994). 

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S.Ct. 1958, 123 L.Ed.2d 661 (1993), nor could they have any

relationship to a prisoner's ability to present all of his claims

in a single federal habeas petition.

We also find meritless McCowin's argument regarding his lack

of access to a transcript of his state proceedings. We recall that

the "[a]buse-of-the-writ doctrine examines [the] petitioner's

conduct: The question is whether [the] petitioner possessed, or by

reasonable means could have obtained, a sufficient basis to allege

a claim in the first petition and pursue the matter through the

habeas process." McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct.

1454, 1472, 113 L.Ed.2d 517 (1991) (citation omitted, emphasis in

original). " "[C]ause' under the cause and prejudice standard must

be something external to the petitioner, something that cannot be

fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753,

111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991) (alteration added,

emphasis in original); see also Murray v. Carrier, 477 U.S. 478,

488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).

 Applying this definition to the case at hand, we follow the

Eleventh Circuit's decision in McCoy v. Newsome, 953 F.2d 1252,

1260 (11th Cir.), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119

L.Ed.2d 208 (1992).2 We hold that a prisoner's lack of access to

a transcript cannot constitute cause under Rule 9(b) unless the
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prisoner shows that the state refused his request for a transcript

or that such a request would have been useless because the state

routinely denies transcripts to prisoners. In addition, we hold

that a state's denial of a transcript will not constitute cause if

the prisoner has not allowed the state a reasonable amount of time

to respond to his request before filing his first petition. Unless

the state has refused a prisoner's request for a transcript made a

reasonable amount of time before the applicant's petition, lack of

access to a transcript cannot constitute a factor external to the

prisoner and not fairly attributable to him.

We imply no view whatsoever on the question of whether a

state's denial of a transcript to a prisoner after a prisoner's

request does constitute cause for Rule 9(b) purposes. We note that

several circuits have decided this question against the petitioner

in unpublished opinions. Mitchell v. Ahitow, No. 93-2187, 1994 WL

323211, at *1, 1994 U.S.App. LEXIS 16805, at *2 (7th Cir. July 5,

1994); United States v. Evans, No. 93-2555, 1993 WL 503252, at *1-

2, 1993 U.S.App. LEXIS 31915, at **4-5 (8th Cir. Dec. 9, 1993);

McCoy v. Newsome, 953 F.2d 1252, 1259 (11th Cir.), cert. denied,

504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). Following

the common law tradition of refusing to decide a case on broad

principles when narrow grounds are available, we decide only that

a prisoner's lack of access to a transcript cannot excuse

successive petitions if the prisoner did not request a transcript

a reasonable amount of time before filing his first petition.

In this case, McCowin's attorney did request a transcript to
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prepare his direct appeal. We presume that the state complied with

this request from the fact that McCowin's state appellate brief

includes citations to the record. McCowin does not explain why

this transcript was unavailable to him, nor does he claim that he

requested his own transcript from the state before filing his

initial federal habeas petition. McCowin has abused the Great

Writ.

AFFIRMED.