Mack Willie Thomas, Petitioner-appellant, v. Aristedes W. Zavaras; Gale A. Norton, Attorney General,respondents-appellees, 16 F.3d 417 (10th Cir. 1994)

Before TACHA, BRORBY and EBEL, Circuit Judges.

ORDER AND JUDGMENT¹ 

TACHA, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Mr. Thomas appeals from an order of the district court adopting the recommendations of the United States Magistrate Judge and dismissing his pro se habeas corpus petition, 28 U.S.C. 2254.²  The parties are familiar with the facts and issues involved in this appeal and we do not restate them here.

We do not review the district court's decision on the merits because we agree with the district court and the magistrate judge that this 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). See Worthen v. Kaiser, 952 F.2d 1266, 1268 (10th Cir. 1992) ("We may not consider the district court's ruling on the merits if it is based on claims constituting an abuse of the writ."). " [T]o show he or she has not abused the writ through inexcusable neglect, the 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). " [T]he cause and prejudice standard applies to pro se petitioners just as it applies to petitioners represented by counsel." Id. For substantially the same reasons set forth by the magistrate judge, we find that Mr. Thomas has not shown cause for his failure to present in his first petition the claims he now brings in his second petition. Because he has not shown cause, we need not consider whether he suffered prejudice. Further, a review of the record does not establish that a "fundamental miscarriage of justice would result from a failure to entertain the claim [s]." McCleskey v. Zant, 111 S. Ct. 1454, 1470 (1991).