IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40443
Summary Calendar
MOSES SMITH, JR.
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:95-CV-967
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October 28, 1996
Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Moses Smith, Jr., Texas prisoner #579393, appeals the
district court’s dismissal of his 28 U.S.C. § 2255 motion as
successive under Rule 9(b) of the Rules Governing § 2255
Proceedings. Smith argues that his prior convictions may not be
used to enhance his sentence under 18 U.S.C. § 924(e) because the
convictions were related. Smith originally filed a 28 U.S.C.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 96-40443
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§ 2254 habeas petition, and the district court construed it as a
motion to vacate, correct, or set aside his sentence under 28
U.S.C. § 2255. However, the district court did not substitute
the United States as the proper respondent after determining that
Smith’s action should be construed as a § 2255 motion.
Although Smith did not receive notice that the district
court was considering dismissing his action as an abuse of the
writ under Rule 9(b), Smith filed objections to the magistrate
judge’s report responding to the recommendation that his action
be dismissed under Rule 9(b). Because Smith filed a response to
the proposed Rule 9(b) dismissal, the district court’s failure to
give Smith notice of the Rule 9(b) dismissal was harmless error.
See Johnson v. McCotter, 803 F.2d 830, 832 (5th Cir. 1986).
Smith’s appellate brief does not address the district
court’s dismissal of his § 2255 motion as successive under Rule
9(b). Smith has not shown cause or prejudice for his failure to
raise this specific argument in his first § 2255 motion.
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). Smith has also
failed to allege that a fundamental miscarriage of justice would
result if the court does not hear his claim because he is
actually innocent of the offense for which he was convicted.
See id. Therefore, Smith has not shown that he is entitled to
relief. The district court did not abuse its discretion in
construing Smith’s petition as a § 2255 motion and in dismissing
it as successive under Rule 9(b). See United States v. Flores,
No. 96-40443
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981 F.2d 231, 234 (5th Cir. 1993).
AFFIRMED.