IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30494 Summary Calendar

BOBBY BOSUN SMITH,

Petitioner-Appellant,

versus

JOHN ASHCROFT, U.S. Attorney General; KEVIN D. ROONEY, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; ANDREA QUARANTILLO, District Director, Immigration and Naturalization Service; CHRISTINE G. DAVIS, District Director, Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CV-444 -------------------- October 31, 2001

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Bobby Bosun Smith, federal prisoner # 18748-083, appeals the

district court’s dismissal of his

petition as an

abuse of the writ. Smith argues that the district court abused

its discretion in dismissing his habeas petition as the district

court did not address the merits of his prior habeas petitions.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-30494 -2-

Contrary to Smith’s argument, the district court addressed the

merits of one of Smith’s prior habeas petitions in which he

raised exactly the same issues as those raised in this petition.

See Smith v. Reno, No. 2:99-CV-2157 (W.D. La. May 22, 2000).

Smith’s failure to raise a new ground for habeas relief in this

habeas petition constitutes an abuse of the writ. See United

States v. Tubwell,

(5th Cir. 1994).

Smith argues that the issue whether his habeas petition is

an abuse of the writ is moot in view of the Supreme Court’s

decision in INS v. St. Cyr,

(2001). In St. Cyr,

the Supreme Court held that habeas jurisdiction under

was not repealed by the Antiterrorism and Effective Death

Penalty Act and Illegal Immigration Reform and Immigrant

Responsibility Act.

. The Supreme Court’s decision

in St Cyr did not change the law concerning abuse of the writ and

is inapplicable to the instant case. Smith’s motion to subpoena

records is DENIED.

AFFIRMED; MOTION TO SUBPOENA RECORDS DENIED.