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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
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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
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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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
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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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.

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