IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40178
Summary Calendar
DAVID ROBLES,
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
USDC No. C-96-CV-131
March 2, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges
PER CURIAM:*
David Robles, Texas prisoner # 193550, appeals from the
district court’s dismissal of his petition for a writ of habeas
corpus as abusive pursuant to Rule 9(b) of the Rules Governing
Section 2254 Cases.
Robles argues that the district court erred by dismissing
his petition as an abuse of the writ because he has shown that a
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 97-40178
-2-
miscarriage of justice would result from the court’s failure to
address the merits of his petition.
We review a district court’s decision to dismiss a petition
pursuant to Rule 9(b) for abuse of discretion. Hudson v.
Whitley, 979 F.2d 1058, 1062 (5th Cir. 1992). Because Robles
cannot make an “actual innocence” showing, as defined in Sawyer
v. Whitley, 505 U.S. 333, 336 (1992), he fails to show that a
fundamental miscarriage of justice would result from the court’s
failure to address the merits of his petition.
The district court’s judgment dismissing the petition as
abusive pursuant to Rule 9(b) is AFFIRMED.