19 F.3d 33
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Bufford McDONALD, Petitioner-Appellant,v.STATE of New Mexico;  Attorney General for the State of NewMexico, Respondents-Appellees.
No. 93-2277.
United States Court of Appeals, Tenth Circuit.
March 8, 1994.

Before TACHA, BRORBY and EBEL, Circuit Judges.

ORDER AND JUDGMENT1

1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.


2
This appeal is from an order of the district court dismissing petitioner Bufford McDonald's petition for a writ of habeas corpus.  Petitioner alleges on appeal the same issue that he has raised in prior petitions for writs of habeas corpus--the improper use of a prior Texas felony for enhancement of his sentence.  The district court dismissed the petition because it is successive and constitutes an abuse of the writ.  Appellant failed to demonstrate cause and prejudice and has failed to show that any fundamental miscarriage of justice would result.  The record contains no colorable claim of factual innocence.  We agree with the district court that this successive petition constitutes an abuse of the writ.  We AFFIRM the dismissal of the petition, GRANT in forma pauperis status and GRANT the certificate of probable cause.  The mandate shall issue forthwith.



1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993.  151 F.R.D. 470


