IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10690
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA SOTO GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:95-CV-511-E
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January 17, 1997
Before SMITH, DUHE’ and BARKSDALE, Circuit Judges.
PER CURIAM:*
Maria Soto Gonzalez, federal prisoner #20581-077, appeals
the district court’s denial of her motion to vacate, set aside,
or correct sentence filed pursuant to 28 U.S.C. § 2255. Gonzalez
argues that the district court erred in denying her motion based
on a finding that he abused the writ under Rule 9(b) of the Rules
Governing Section 2255 Proceedings.
*
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that this opinion should not be published and is not precedent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. 96-10690
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To the extent that Gonzalez is required to file a
certificate of appealability (COA) in order to appeal the
district court’s order, we conclude that Gonzalez has not made a
substantial showing of the denial of a constitutional right. See
28 U.S.C. § 2253(c)(2); see also Drinkard v. Johnson, 97 F.3d
751, 756 (5th Cir. 1996). Without deciding whether a COA is
required, we conclude that Gonzalez has failed to show cause for
her failure to raise the issues presented in the present § 2255
motion in her previous motion filed pursuant to § 2255. Nor has
Gonzalez asserted her actual innocence as required to establish
that a fundamental miscarriage of justice might result should the
court not address the merits of her successive § 2255 motion.
See Hudson Whitley, 979 F.2d 1058, 1063 (5th Cir. 1992). The
district court did not err in denying § 2255 relief based on her
abuse of the writ.
This court recently has held that the Prison Litigation
Reform Act (PLRA) does not apply to § 2255 motions. United
States v. Cole, ___ F.3d ___, No. 96-40567, 1996 WL 709228, at *1
(5th Cir. Dec. 9, 1996). The record reflects that, prior to the
Cole decision, Gonzalez was assessed a partial filing fee under
the provisions of the PLRA. Accordingly, the district court
clerk’s office should take necessary action to refund to Gonzalez
that portion of the filing fee she already has paid, and no
further assessments against Gonzalez for the filing fee should be
made.
No. 96-10690
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AFFIRMED. COA DENIED.