142 F.3d 443
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Vernon A. HARVEY, Petitioner-Appellant,v.A.C. Newland,* Warden, Respondent-Appellee.No. 97-16874.D.C. No. CV 95-3005-FMS.
United States Court of Appeals,Ninth Circuit.
.Submitted April 20, 1998***.Decided April 28, 1998.

Appeal from the United States District Court for the Northern District of California Fern M. Smith, District Judge, Presiding.
Before BRUNETTI, RYMER, and T.G. NELSON, Circuit Judges.


1
MEMORANDUM**


2
Vernon A. Harvey, a California state prisoner, appeals pro se the dismissal as an abuse of the writ of his second 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for second degree murder.  He contends that because he established a fundamental miscarriage of justice, the district court erred by refusing to consider his claim that his trial counsel provided ineffective assistance when counsel failed to object to the admission of a non-testifying codefendant's tape recorded statement.  We affirm the district court's judgment.


3
To establish that a fundamental miscarriage of justice would result from the failure to consider an abusive claim, a habeas petitioner must show that a constitutional error probably resulted in the conviction of one who is actually innocent.  See Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir.1997) (en banc), petition for cert. filed, --- U.S.L.W. ---- (U.S. Mar. 13, 1998) (No. 97-1509).


4
In the district court, Harvey asserted that had counsel's ineffective assistance not denied him his right to confront his codefendant, he "could have shown the trier of fact his actual innocence."   Harvey, however, was required to establish his actual innocence before the district court.  See id. at 478 (petitioner must present evidence of innocence strong enough that court cannot have confidence in outcome of trial unless also satisfied that trial was free of nonharmless constitutional error).  Accordingly, we affirm the district court's judgment.


5
AFFIRMED.



*
 A.C. Newland, current warden of the California State Prison at Solano, is substituted as respondent-appellee pursuant to Fed.  R.App. P. 43(c)(1)


**
 * The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


