United States of America, Plaintiff-appellee, v. Gary D. Ruster, Defendant-appellant, 942 F.2d 795 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 942 F.2d 795 (9th Cir. 1991) Submitted July 15, 1991. *Decided Aug. 23, 1991

Before CHAMBERS and SNEED, Circuit Judges, and KELLEHER, District Judge** .

MEMORANDUM*** 

Gary Ruster, a federal prisoner, appeals pro se the denial of his 28 U.S.C. § 2255 motion, challenging the sentence imposed upon him following his conviction by jury trial for fraud in a social security application, in violation of 18 U.S.C. § 287.

We review for an abuse of discretion a district court's decision to deny consideration on the merits of a petition for habeas relief on the basis that the petition is successive. Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir. 1988), cert. denied, 110 S. Ct. 264 (1989). Rule 9(b) of the Rules Governing Section 2255 Proceedings provides in part that a "successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits."

Ruster's first habeas motion was dismissed as moot after he escaped. His second motion was dismissed on the merits. This is his third habeas motion. The lower court did not abuse its discretion when it denied his motion.

AFFIRM.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

The Honorable Robert Kelleher, United States District Judge for the Central District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3