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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-1954
_____________________________________
FRANK BASIL MCFARLAND,
Petitioner,
VERSUS
JAMES A. COLLINS,
Director, Texas Department of Criminal Justice,
Institution Division,
Respondent.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________
(October 26, 1993)
ON MOTION FOR STAY OF EXECUTION AND APPOINTMENT OF COUNSEL
Before DAVIS, JONES, and DUHÉ, Circuit Judges.
PER CURIAM:
Frank B. McFarland seeks in forma pauperis status and a
certificate of probable cause to review the district court's denial
of his application for a stay of execution and for the appointment
of counsel to represent him in the filing and prosecution of a
complaint for habeas relief. He also seeks from this Court a stay
of execution.
We grant IFP but deny certificate of probable cause.
The only post conviction relief petitioner has sought in state
court has been a number of motions to stay court ordered executions
to permit the petitioner to obtain habeas counsel. The final
motion for stay was denied by the Texas Court of Criminal Appeals
on October 22. Thus, no post-conviction claims have been filed in

state court alleging specific constitutional infirmities in his
state court conviction and sentence. The only pleadings McFarland
has filed in federal district court is a motion for stay of the
state court ordered execution and request for appointment of
counsel and a request for certificate of probable cause. McFarland
seeks review of the district court's denial of those motions.
A Petitioner does not have a right to an automatic stay
pending the filing of his first habeas corpus petition. Autry v.
Estelle, 464 U.S. 1, 2 (1983). A United States Court may not stay
proceedings in a state court except as expressly authorized by act
of Congress, or where necessary in aid of its jurisdiction, or to
perfect or effectuate its judgments. 28 U.S.C. § 2283. Such an
act of Congress exists in the form of 28 U.S.C. § 2251, but it
authorizes stay only by a court before which a habeas corpus
proceeding is pending. No habeas corpus proceeding was pending
before the district court and none is pending here. A suit is
pending when commenced. In Re Connaway, 178 U.S. 421, 427-28
(1900). Federal Rule of Civil Procedure 3 makes it clear one
commences a civil proceeding by filing a complaint with the court.
That has not been done. We do not view the motion for stay and for
appointment of counsel as the equivalent of an application for
habeas relief. Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir.
1991), cert. denied, 112 S.Ct. 1778 (1992). We do not, however,
share the view of the Ninth Circuit in Brown that the filing of the
motions at issue is sufficient to meet the requirement of § 2251
that a habeas proceeding be "pending" before we may stay state
2

court proceedings. Brown, 952 F.2d at 1169. In fact, all of the
"pro se" filings in this matter, which were prepared by the Texas
Resource Center, show clearly that no habeas action is pending in
any court.
Were we, by some legal alchemy, to ignore the foregoing,
Appellant still could not prevail. He does not make the minimal
showing necessary to establish entitlement to a stay. Appellant
argues that he is entitled to appointment of counsel, and appointed
counsel will require additional time to prepare the habeas
petition. There is, however, no constitutional right to court
appointed counsel in state post-conviction proceedings. Coleman v.
Thompson, 111 S.Ct. 2546 (1991); Murray v. Giarratano, 492 U.S. 1
(1989). We are not prepared to accept the blanket assertion that,
in this case, meaningful access to the courts necessarily means
court appointed counsel. Id.
Additionally, to be entitled to a stay, Appellant must show,
if not a probability of success on the merits, at least a
substantial case on the merits when a serious legal question is
involved. Byrne v. Roemer, 847 F.2d 1130, 1133 (5th Cir. 1988).
Appellant has not even indicated the issues that might be raised in
a habeas application, much less shown a substantial case on the
merits. Barefoot v. Estelle, 463 U.S. 880, 895 (1983).1
1 There is yet another problem not addressed by any of Appellant's
filings: the question of exhaustion of state remedies. Petitioner
must exhaust state habeas remedies before he is entitled to relief
on a federal habeas petition. 22 U.S.C. § 2254(b) (West 1985); In
Re Lindsey, 875 F.2d 1502, 1506 (11th Cir. 1989). The numerous
attachments to the papers filed show not only that no claims have
been exhausted; but no post conviction claims have even been filed
3

Accordingly the application for certificate of probable cause
is denied. The motion for stay of execution and appointment of
counsel is also denied.
in state court. Thus, even if McFarland's pleadings are
characterized as a federal habeas petition, the district court
would be obliged to dismiss it for failure to exhaust the claims.
4