              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                           No. 91-1323
                         Summary Calendar


                      JIHAAD A.M.E. SAAHIR,

                                      Petitioner-Appellant,

                                 v.

                   JAMES A. COLLINS, Director,
              Texas Department of Criminal Justice,
                     Institutional Division,

                                      Respondent-Appellee.



          Appeal from the United States District Court
               for the Northern District of Texas


                         (March 25, 1992)

Before JONES, DUHÉ, and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

          The district court dismissed Jihaad Saahir's successive

federal habeas corpus petition for abuse of the writ.    His appeal

poses a question left undecided by Woods v. Whitley, 933 F.2d 321,

324 n.6 (5th Cir. 1991):   whether pro se habeas petitioners are

held to a different standard of "cause" for failing to raise a

particular claim in prior petitions than are petitioners repre-

sented by counsel.   Because McCleskey v. Zant, __ U.S. __, 111

S.Ct. 1454 (1991), draws no such distinction, and because Saahir

has shown neither cause under this standard nor a fundamental

miscarriage of justice should he remain incarcerated, we affirm the

district court's order dismissing his petition with prejudice.
                          BACKGROUND

          Saahir, formerly known as James Loggins, was convicted of

aggravated robbery by a Texas jury in 1979 and sentenced to 75

years imprisonment.    The Texas Court of Criminal Appeals affirmed

his conviction in 1982.    He filed applications for writs of habeas

corpus in the state courts in 1982 and again in 1986, both of which

were denied.     Saahir filed his first habeas petition in federal

court in 1982, which was dismissed for failure to exhaust state

court remedies.    The district court dismissed his second federal

habeas petition in 1983, prompting Saahir to appeal unsuccessfully

to this court.

          The state of Texas moved to dismiss Saahir's third

federal habeas petition under Rule 9(b) because the twelve issues

Saahir now raises were not, but could have been, raised in his

earlier petition.1     After an evidentiary hearing, a magistrate

judge found that Saahir's third petition raised completely new

grounds for relief and that he had not alleged a lack of knowledge

of the facts underlying his claims or the unavailability of means

to know the legal doctrines when he filed his prior writ.       The

     1
          Rule 9(b) of the rules governing habeas corpus peti-
tions provides:

          Successive petitions. A second or successive
          petition may be dismissed . . . if new and
          different grounds are alleged, the judge
          finds that the failure of the petitioner to
          assert those grounds in a prior petition
          constituted an abuse of the writ.

28 U.S.C. § 2254 Rule 9(b).



                                  2
magistrate judge noted that Saahir's only explanation for failing

to raise these issues earlier was that he was untrained in the law

and had only uncovered the current issues after researching his

case for three years.   The magistrate judge also found that Saahir

had presented no evidence of factual innocence.        The district

court, adopting the magistrate judge's findings of fact and legal

conclusions, dismissed the third petition with prejudice as an

abuse of the writ.   Saahir filed a timely notice of appeal, and the

district court granted a certificate of probable cause.

                             DISCUSSION

          Saahir contends the district court abused its discretion

in dismissing his petition. He argues that his failure to discover

the claims he now raises should be excused because he was not

represented by counsel when he filed the prior petitions.   He also

insists he made a colorable claim of factual innocence.

          In McCleskey, the Court held that the standard used to

decide whether to excuse a habeas petitioner's state procedural

defaults also governs the determination of excusable neglect in the

context of abuse of the writ under Rule 9(b).    111 S.Ct. at 1468.

This means that a serial habeas petition must be dismissed as an

abuse of the writ unless the petitioner has demonstrated "cause"

for not raising the point in a prior federal habeas petition and

"prejudice" if the court fails to consider the new point.    Woods,

933 F.2d at 323.   The state has the initial burden of pleading writ

abuse, as it did here; the petitioner must then prove cause and

prejudice. Russell v. Collins, 944 F.2d 202, 205 (5th Cir.), cert.


                                  3
denied, __ U.S. __, 112 S.Ct. 30 (1991).     A court need not consider

whether there is actual prejudice if the petitioner fails to show

cause.   McCleskey, 111 S.Ct. at 1474; Sawyer v. Whitley, 945 F.2d

812, 816 (5th Cir.), modified on other grounds, __ F.2d __, 1991 WL

231113 (5th Cir.), cert. granted, __ U.S. __, 112 S.Ct. 434 (1991).

           The cause standard requires the petitioner to show that

some objective factor external to the defense prevented him from

raising the claim in the previous petition.      McCleskey, 111 S. Ct.

at 1470.   Such factors include interference by government offi-

cials, as well as the reasonable unavailability of the factual or

legal basis for a claim.     Id.       In examining cause for a peti-

tioner's delay in raising a habeas claim, McCleskey observed:

     The requirement of cause in the abuse of the writ context
     is based on the principle that petitioner must conduct a
     reasonable and diligent investigation aimed at including
     all relevant claims and grounds for relief in the first
     federal habeas petition. If what petitioner knows or
     could discover on reasonable investigation supports a
     claim for relief in the federal habeas petition, what he
     does not know is irrelevant. Omission of the claim will
     not be excused merely because evidence discovered later
     might also have supported or strengthened the claim.

Id. at 1472.

           McCleskey, then, demands Saahir show that at the time he

filed his previous habeas petitions, some factor external to his

defense prevented him from discovering the claims he now raises or

from uncovering them through reasonable investigation.        Saahir,

however, has neither alleged that he was unaware of facts relevant

to his claims, nor that any objective external factors prevented

him from researching his case more thoroughly before filing earlier

petitions. He testified at the evidentiary hearing that he did not

                                   4
realize that he should file only one writ, so he filed the first

petition and then continued researching possible claims.

             Saahir now contends that because he proceeded pro se on

both his prior and current petitions, he should be excused for his

ignorance of the law.          We disagree.        The alleged inadequacy of

Saahir's own legal research is irrelevant under McCleskey because

no objective external factor prevented him from raising the new

claims in prior petitions.           Nor can Saahir's pro se status qualify

as such a factor.       As McCleskey reiterated, there is no constitu-

tional right to counsel in post-conviction proceedings. Pennsylva-

nia    v.   Finley,   481    U.S.    551,    107   S.Ct.   1990,    1993      (1987);

McCleskey, 111 S.Ct. at 1471; Coleman v. Thompson, __ U.S. __, 111

S.Ct. 2546, 2566 (1991).

             It is hardly surprising, then, that McCleskey draws no

distinction between pro se petitioners and those represented by

counsel.     See Woods, 933 F.2d at 324 n.6.          Instead, McCleskey sets

a single standard for whether a habeas petitioner is excused from

neglecting to raise his new claims in prior petitions:

       Abuse of the writ doctrine examines petitioner's conduct:
       the question is whether petitioner possessed, or by
       reasonable means could have obtained, a sufficient basis
       to allege a claim in the first petition. . . .

111 S.Ct. at 1472 (emphasis in original).                    Because a habeas

petitioner     is     not    constitutionally       entitled       to   any     legal

representation in waging a collateral attack, the McCleskey "knew

or    reasonably    should    have    known"   standard     for    cause      applies

irrespective of whether he was represented by counsel when he filed

any previous petitions.

                                         5
              In Woods, this court suggested that the application of

McCleskey's "should have known" standard may be inconsistent with

prior Fifth Circuit cases requiring actual knowledge by pro se

petitioners of the facts and legal theories of their new claims.

Woods, 933 F.2d at 324 n.6.        See, e.g., Shouest v. Whitley, 927

F.2d 205 (5th Cir. 1991) (superseding Schouest v. Smith, 914 F.2d

713, 716) (5th Cir. 1990)); Matthews v. Butler, 833 F.2d 1165,

1170-71 (5th Cir. 1987); Passman v. Blackburn, 797 F.2d 1335, 1344

(5th Cir. 1986), cert denied, 480 U.S. 948, 107 S.Ct. 1609 (1987);

see also Jones v. Estelle, 722 F.2d 159, 163-64 n.3 (5th Cir. 1983)

(en   banc)    (reserving   the   question),   cert.   denied,   Jones   v.

McKaskle, 466 U.S. 976, 104 S. Ct. 2356 (1984).2            Now that the

      2
          The actual knowledge standard adopted in Passman and
questioned in Woods flowed from a pair of Supreme Court decisions
that have been modified by McCleskey. The first, Fay v. Noia,
372 U.S. 391, 83 S. Ct. 822 (1963), held that a procedural
default in state court does not bar federal habeas review unless
the petitioner has deliberately bypassed state procedures by
intentionally forgoing an opportunity for state review. Id. at
438-39, 83 S. Ct. at 846. In Sanders v. United States, 373 U.S.
1, 83 S. Ct. 1068 (1963), the Court extended the "deliberate
bypass" standard of Fay to the abuse of the writ doctrine. Id.
at 18, 83 S. Ct. at 1078. Accordingly, Passman concluded:

      In light of Sanders, there is no room in habeas corpus
      adjudications for an abuse of the writ doctrine to a
      pro se petitioner who did not subjectively know about a
      particular legal claim when an earlier petition was
      filed. A pro se petitioner must, at the least,
      knowingly withhold a claim in order for the abuse of
      the writ doctrine to apply.

797 F.2d at 1343. Most recently, however, Coleman v. Thompson,
   U.S.      , 111 S. Ct. 2546 (1991), overruled Fay v. Noia by
rejecting the deliberate bypass standard in favor of cause and
prejudice. Coleman,        U.S.      , 111 S. Ct. at 2565.
Similarly, in adopting this same standard for abuse of the writ,
McCleskey repudiated the underpinnings of this court's actual
knowledge standard by holding that "[a]buse of the writ is not

                                     6
issue is squarely before the court, we recognize that McCleskey has

overruled these earlier decisions to the extent they distinguish,

for abuse of the writ purposes, between pro se petitioners and

those represented by counsel.

           Applying McCleskey to the facts of this case, we hold

that Saahir "should have known" about the legal theories he now

advances when he filed his earlier pro se petition.   The district

court found that he did not allege lack of knowledge of the facts,

did not allege inability to research the law, and had actual

knowledge of the law on ineffective assistance of counsel.     The

record clearly supports a finding that Saahir "should have known"

of the legal theories if he had diligently researched them before

filing his earlier writ.

           While Saahir has failed to show cause for his neglect,

this court may still entertain his serial petition to prevent a

"fundamental miscarriage of justice."     McCleskey, 111 S.Ct. at

1470-71.   Overarching Saahir's second contention on appeal is that

the ends of justice will be served only if this court reaches the

merits of his newly formulated claims.   Jones v. Whitley, 938 F.2d

536, 542 (5th Cir. 1991), cert. denied, __ U.S. __, 112 S.Ct. 8



confined to instances of deliberate abandonment." McCleskey,
 U.S.      , 111 S. Ct. at 1467. The Court noted that the cause
and prejudice standard is "consistent" with Sanders, id. at
_____, 111 S. Ct. at 1471, but only because it strictly limited
Sanders to its facts: "Sanders mentioned deliberate abandonment
as but one example of conduct that disentitled a petitioner to
relief." Id. at       , 111 S. Ct. at 1467 (emphasis added).
Because the doctrinal predicate of Passman and its progeny is no
longer valid, neither is the actual knowledge standard.


                                 7
(1991).   A "fundamental miscarriage" implies that a constitutional

violation probably caused the conviction of an innocent person.

See McCleskey, 111 S.Ct. at 1475.            Only two claims bear on Saahir's

claim   of    innocence   --    ground       number   7   alleging   ineffective

assistance of counsel regarding his alibi witness and his co-

defendant's exculpatory statement.              These grounds were developed

factually at the evidentiary hearing.

                At trial, Saahir's wife Sylvia testified that she did

not go to work and was with her husband at the time of the robbery.

Her employer testified that time card records showed that she did

work that night.       Saahir claims he told his attorney to recall her

to explain that her sister worked in her place and signed in for

her.    Saahir, who was represented by counsel at the evidentiary

hearing, knew the whereabouts of his wife but chose not to call her

as a witness.      At that hearing, Saahir's trial attorney testified

that he did not recall Sylvia because he thought it would be more

damaging to his case to do so, as she had made statements to her

employer that incriminated her husband. The attorney was concerned

about any further cross-examination of her.

              Saahir   also    alleges   that    his      co-defendant,   Michael

McGowan, made statements to the police that exonerated him. Saahir

admitted that he has never seen such a statement.                He claimed his

wife told him about the statements.              McGowan did state that the

person who committed the robbery with him was a black man.                 While

he did not name Saahir as his accomplice, he did not exonerate him

either.      McGowan's whereabouts are unknown.


                                         8
            Thus, the trial court's finding that Saahir failed to

present any evidence on his claim of factual innocence is not

clearly erroneous. He neither called his wife to fortify his alibi

defense nor produced proof of the existence of an exculpatory

statement by his co-defendant, McGowan.             Saahir has not shown that

failure   to   consider   his    claim      will    result    in   a     fundamental

miscarriage of justice and that he remains incarcerated though

innocent.



                                 CONCLUSION

            The   district      court's      factual       findings      and   legal

conclusions    were   correct,    and       the    court   did     not    abuse   its

discretion in dismissing Saahir's petition for abuse of the writ.

Accordingly, the dismissal is AFFIRMED.




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