IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40348
Summary Calendar
CHARLES KENNETH NELSON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Texas
(C-95-163)
January 16, 1997
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*
PER CURIAM:
Charles Kenneth Nelson, Texas prisoner # 503292, appeals the
judgment of the district court denying his second petition for
habeas corpus relief pursuant to 28 U.S.C. § 2254. Nelson has not
established cause and prejudice for failing to raise his Sixth
*
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this opinion should not be published and is not precedent except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.
Amendment claim of ineffective assistance of counsel in his first
habeas corpus petition. Duff-Smith v. Collins, 995 F.2d 545, 546
(5th Cir.), cert. denied, 509 U.S. 933 (1993). Although Nelson
asserts his innocence, he has not supplemented his Sixth Amendment
claim with a colorable showing of factual innocence; therefore, the
miscarriage-of-justice exception does not apply. See Callins v.
Johnson, 89 F.3d 210, 213 (5th Cir.), cert. denied, 1996 WL 625764
(U.S. Dec. 2, 1996) (No. 96-6391). Nelson has not shown that it is
more likely than not that but for the asserted errors of his
counsel no reasonable juror would have convicted him. Schlup v.
Delo, 115 S.Ct. 851, 867 (1995). The judgment of the district
court in favor of the respondent is AFFIRMED on grounds that
Nelson’s second habeas corpus petition constitutes an abuse of the
writ. See Rule 9(b) of the Rules Governing 28 U.S.C. § 2254 Cases.
AFFIRMED
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