1 Local Rule 47.5 provides: "The publication of

opinions that have no precedential value and merely decide

particular cases on the basis of well-settled principles of law

imposes needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 95-10606

Summary Calendar

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DEWEY GLYNN DAILY,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL

DIVISION,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

(3:95-CV-850-G)

____________________________________________________

April 16, 1996

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM: 1

Dewey Glynn Daily appeals from the district court's o rder

dismissing his 28 U.S.C. § 2254 petitio n under Rule 9(b) of the

Rules Governing Section 2254 Cases. We affirm.

I.

Daily is presently incarcerated in a Texas s tate prison

facility. In 1980, a jury found him guilty of aggravated robbery2 While on parole for the aggravated robbery offense,

Daily committed a second crime. In August of 1994, he pled

guilty to the felony offense of indecency with a child. He is

presently serving time for both felonies. This § 2254 petition,

however, relates only to the aggravated robbery offense.

2 with a deadly weapon; he was sentenced to thirty years in prison. 2

His conviction was affirmed by an intermediate appellate court. He

did not seek discretionary review from the Texas Court of Criminal

Appeals.

In this habeas petition, Daily contends that, due to

ineffective assistance of counsel, he was convicted for a crime he

did not commit. Although he admits he committed robbery, he claims

he used a toy gun during the offense. Under Texas law, therefore,

he is not guilty of aggravated robbery. Daily asserts that he told

his attorney that he used a toy gun and that his attorney informed

him it made no difference. Based on this erroneous advice, Daily

did not testify in his own defense. And the jury did not receive

the critical toy gun information.

This petition is not Daily's first collateral attack on his

conviction. He has filed three petitions for state writ of habeas

corpus, and this application is h is third for federal habeas

relief. The district court, therefore, raised the abuse of writ

issue sua spo nte . It determined that Daily's petition was

procedurally ba rred because he could not demonstrate cause and

prejudice. The district court likewise concluded that Daily's case

did not implicate the "fundamental miscarriage of justice"

exception to the procedural bar rule because it did not interpret

Daily's claim as one of factual innocence. Although we disagree in

part with the district court's reasoning, we concur in its result.3 II.

Under Rule 9(b), a habeas petition may be dismissed even

though the petitioner alleges new or different grounds for relief

if "the failure of the petitioner to assert those grounds in a

prior pet ition constituted an abuse of the writ." Once the writ

abuse issue has been raised, a petitioner bears the burden of

demonstrating cause for not raising the new claims in a previous

petition and prejudice from the error claimed. M cCleskey v. Zant

,

499 U.S. 467, 489-96 (199 1). A petitioner who cannot show cause

and prejudice must demonstrate that a refusal to entertain his

defaulted cla ims will result in a fundamental miscarriage of

justice. He must allege that he is actually innocent of the crime

for which he was convicted. See e.g.

, Schlup v. Delo , 115 S. Ct.

851, 864 (1995). Daily can meet neither test. The district court,

therefore, did not abuse its discretion in dismissing his petition

under Rule 9(b).

Daily has not demonstrated cause for failing to raise the toy

gun claim in a previous petition. To show cause, a prisoner must

show that some objective, externa l factor prevented him from

raising the claim earlier. McQueen v. Whitley , 989 F.2d 184, 185

(5th Cir. 1993). That the factual or legal basis of the claim was

reasonably unavailable qualifies as cause. I d. Daily excuses his

delay by arguing that he onl y recently discovered legal

signi ficance of the toy gun. However, the petitioner himself

refers to a 1976 case in which the Texas Court of Criminal Appeals

held that a B.B. gun, unless used as a bludgeon, does not qualify

as a deadly weapon because it is "not calculated to produce death4

or serious injury." M osley v. State

, 545 S.W.2d 144, 145-46 (Tex.

Crim. App. 19 76). The M osley court, therefore, reversed the

defendant's conviction for aggravated assault. I d. at 146. M osley

demonstrates that, at the time Daily filed his first petition, the

legal b asis for the claim he presents here was reasonably

available. He cannot demonstrate cause; therefore, his claim is

procedurally barred.

Daily, however, argues that because he used a toy gun when he

committed robbery he is innoce nt of the offense of aggravated

r obbery. Therefore, the district court abused its discretion in

dismissing his habeas petition. He asserts that his is the rare

case in which strict application of the procedural bar rule will

result in a fundamental miscarriage of justice. We disagree.

The Supreme Court has emphasized that credible claims of

actual innocence are extremely rare. To assert a credible claim so

as to qualify for this narrow exception to the procedural bar rule,

a prisoner "must support his allegations of constitutiona l error

with new reliable evidence-- whether it is exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence-- that was not presented at trial." S chlup

, 115 S. Ct. at

865. In Schlup , the petitioner presented a plethora of evidence,

inclu ding a number of affidavits from uninterested persons, to

support his contention that he did not commit the murder for which

he was convicted. I d. at 858, n.18. The Court, therefore,

reversed the circuit court's decision that the petitioner's habeas

claim was procedurally barred. I d. at 869. It remanded the case,

instructing the district court to consider whether it was more3 After the district court dismissed his petition, Daily

submitted the affidavit of his brother, Michael Daily, as

corroborating evidence. This court will not consider evidence

never presented in any form to the district court. Leonard v.

Dixie Well Service & Supply, Inc. , 828 F.2d 291, 297 (5th Cir.

1987); Scarborough v. Kellum , 525 F.2d 931, 933 n.4 (5th Cir.

1976)(habeas case). However, even if we were to consider it,

Michael Daily's affidavit would not affect our conclusion.

5 likely than not that, in the face of this evidence, no reasonable

jury would have found the defendant guilty beyond a reasonable

doubt. Id.

Daily 's case is distinguishable. His evidence may be new.

And it may indicate that he is innocent of aggravated robbery.

However, it is not reliable. Fifteen years after he was tried and

convicted for aggravated robbery, he offers only his own selfserving affidavit as evidence that he did not employ a deadly

weapon. 3 We do not find it necessary to remand this case to the

d istrict court with instructions that it apply Schlup to Dail y's

claim. S ee Nave v. Delo

, 62 F.3d 1024, 1032 (8th Cir.

1995)(declining to remand and distinguishing Schlup on grounds that

it was fact intensive and required that testimony be taken). Faced

with Daily' s self-serving statements, given for the first time

fifteen years after his first trial, a reasonable jury would likely

find Daily guilty of aggravated robbery beyond a reasonable doubt.

The district court, therefore, did not abuse its discretion in

dismissing Daily's petition as an abuse of the great writ.

For these reasons, we affirm the district court's dismissal of

Daily's § 2254 petition under Rule 9(b).

AFFIRMED.