97 F.3d 1459
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Nathan J. ELLIS, Petitioner-Appellant,v.Ivalee HENRY, Warden, Respondent-Appellee.
No. 96-15449.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 10, 1996.*Decided Sept. 12, 1996.

Before:  FLETCHER, BRUNETTI and JOHN T. NOONAN, Jr., Circuit Judges.


1
MEMORANDUM**


2
Nathan Jerome Ellis, a California state prisoner, appeals pro se the district court's dismissal of his third 28 U.S.C. § 2254 habeas petition as an abuse of the writ.  We affirm the district court's conclusion that Ellis abused the writ.   See McCleskey v. Zant, 499 U.S. 467, 495 (1991) (in order to show a fundamental miscarriage of justice to excuse subsequent petition, the petitioner must supplement his claim of constitutional error with a colorable claim of factual innocence);   see also Harris v. Vasquez, 949 F.2d 1497, 1515 (9th Cir.1990) (even if constitutional violation undermined accuracy of sentencing decision, it would not demonstrate defendant's actual innocence).

AFFIRMED.1


*
 The panel unanimously finds this case suitable for decision without oral argument.  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


1
 Because of our disposition of this appeal, we do not consider the applicability, if any, of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), to this appeal


