                     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


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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.


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