Rex Eugene Austin, Petitioner-appellant, v. James A. Thomas; Grant Woods, Attorney General, State Ofarizona, Respondents-appellees, 981 F.2d 1257 (9th Cir. 1992)

MEMORANDUM^** 

Austin appeals the district court's dismissal of his petition for writ of habeas corpus as an abuse of the writ.

Austin contends that the "cause and prejudice" standard made applicable to subsequent habeas petitions by McCleskey v. Zant, 111 S. Ct. 1454 (1991), cannot be applied to him. He argues that McCleskey announced a "new rule" within the meaning of Teague v. Lane, 489 U.S. 288 (1989), and thus cannot be retroactively applied. This court has already squarely rejected this argument. Harris v. Vasquez, 949 F.2d 1497, 1512 (9th Cir. 1990), cert. denied, 112 S. Ct. 1275 (1992).

Austin contends that the ineffective assistance of his attorney in connection with his first habeas petition could suffice to establish cause under McCleskey. This argument, too, we have squarely rejected. Deutscher v. Whitley, 946 F.2d 1443, 1444 (9th Cir. 1991) (following Coleman v. Thompson, 111 S. Ct. 2546, 2566-68 (1991)), vacated and remanded on other grounds, 113 S. Ct. 367 (1992).

Austin contends that, despite his abuse of the writ, this is one of those "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime," McCleskey, 111 S. Ct. at 1470, and that we must here "exercise [our] equitable discretion to correct a miscarriage of justice." Id. at 1474. Having reviewed the record and considered Austin's arguments, we are not persuaded that the constitutional violations he alleges "caused the conviction of an innocent person." Id. at 1475.

AFFIRMED.