               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.


                         - - - - - - - - - -
           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 6:95-CV-967
                         - - - - - - - - - -
                           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that this opinion should not be published and is not precedent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
                                 - 2 -

§ 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
                              - 3 -

981 F.2d 231, 234 (5th Cir. 1993).

     AFFIRMED.
