Donald Aragon, Petitioner-appellant, v. John Thomas, Warden, Respondent-appellee, 13 F.3d 404 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

Mr. Donald Aragon, appearing pro se, appeals from the district court's dismissal of his habeas corpus petition, 28 U.S.C. 2254, and from its denial of a certificate of probable cause, 28 U.S.C. 2253. The parties are familiar with the facts and issues presented in this appeal and we will not restate them here.

We agree with the district court's conclusion that Mr. Aragon's second federal habeas petition constitutes an abuse of the writ under 28 U.S.C. 2244(b) and 28 U.S.C. 2254, Rule 9(b). " [A] petitioner who presents new claims in a second or subsequent federal habeas petition must show both cause for failing to present those claims in an earlier habeas petition and prejudice therefrom." Rodriguez v. Maynard, 948 F.2d 684, 687 (10th Cir. 1991). "Even if the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.' " Id. (quoting McCleskey v. Zant, 111 S. Ct. 1454, 1470 (1991)). Here, Mr. Aragon has not shown cause for his failure to present in his first petition the claims he alleges in his second petition.²  Because he has not shown cause, we need not consider whether he suffered prejudice. Further, a review of the record does not establish a fundamental miscarriage of justice.

We GRANT Mr. Aragon's request for a certificate of probable cause, GRANT his motion to proceed in forma pauperis and AFFIRM the district court's dismissal of his habeas corpus petition. The mandate shall issue forthwith.