Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)

MEMORANDUM^** 

William E. Hutchings von Ludwitz, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2255 motion as successive. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and we affirm.

A district court may dismiss a section 2255 motion, without a hearing, on the basis of a prior adjudication only if: "(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States, 373 U.S. 1, 15 (1963); see also 28 U.S.C. § 2244(a); Rule 9(b), Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. Sec. 2255. The burden of proof is on the petitioner to establish that the ends of justice would be served by relitigation of the claims previously decided against him. Sanders, 373 U.S. at 17. To meet this burden, the petitioner must make a colorable showing of factual innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion).

Here, Hutchings von Ludwitz has filed four other section 2255 motions raising the same issues as were raised in his fifth section 2255 motion, which is the subject of this appeal. The district court properly dismissed his most recent section 2255 motion without holding an evidentiary hearing because (1) Hutchings von Ludwitz has raised the same grounds for relief in previous section 2255 motions and they were determined adversely to him, (2) the previous determinations were on the merits, and (3) the ends of justice would not be served by reaching the merits of these claims again because Hutchings von Ludwitz has made no colorable showing of factual innocence. See Kuhlmann, 477 U.S. at 454; Sanders, 373 U.S. at 15-16.

AFFIRMED.¹