Charles R. Day, Petitioner-appellant, v. Ron Champion, Respondent-appellee, 13 F.3d 405 (10th Cir. 1993)

Before TACHA, BALDOCK, and KELLY, Circuit Judges.

ORDER AND JUDGMENT¹ 

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. Charles Day, appearing pro se, appeals from the district court's dismissal of his habeas corpus petition, 28 U.S.C. 2254. 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. Day's 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). " [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 district court, we find that Mr. Day has not shown cause for his failure to present in his August 15, 1990, petition the claims he now alleges in his April 6, 1992, 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).