UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT L. HOLLOWAY,

Petitioner-Appellant,

v.

No. 95-7737

WILLIAM L. SMITH, Warden; THE

ATTORNEY GENERAL OF THE STATE OF

MARYLAND,

Respondents-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-94-3155-AMD)

Submitted: February 13, 1996

Decided: April 8, 1996

Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert Holloway, Appellant Pro Se. John Joseph Curran, Jr., Attorney

General, Ann Norman Bosse, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The Appellant, Robert Holloway, appeals from the district court's

order denying relief on his second 28 U.S.C. § 2254 (1988) petition.

The district court dismissed the action without prejudice to allow Holloway to refile this habeas petition if the state has not corrected its

sentencing error before he has satisfied the legal component of his

sentence and is illegally detained on an excessive consecutive sentence.

Peyton v. Rowe1 allows Holloway to attack his future sentence now

because a prisoner serving the first of two consecutive sentences is "in

custody" under the aggregate term of imprisonment which encompasses the future as well as the present sentence. 2 While the evidence

shows and the state concedes that Holloway received a sentence longer than the law allows, McCleskey v. Zant, 499 U.S. 467 (1991), bars

Holloway's claim even though Peyton v. Rowe allows Holloway to

attack his future consecutive sentence. The Supreme Court held that

the determination of whether a successive petition was abusive should

be analyzed by the same standards as a procedural default,3 thus Holloway must make a showing of cause and prejudice or a colorable

showing of factual innocence. Holloway does not meet the cause and

prejudice standard because unfamiliarity with the law and his pro se

status do not constitute adequate justification to excuse his failure to

present the claim earlier,4 nor does Holloway assert a colorable claim

of innocence. If Holloway could produce evidence of his innocence

then he would be entitled to a review on the merits of his claim. In

conclusion, Holloway could challenge the legality of a future sentence

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1 Peyton v. Rowe, 391 U.S. 54 (1968).

2 Id. at 64-65.

3 McCleskey v. Zant, 499 U.S. 467, 493-96 (1991).

4 Miller v. Bordenkircher, 764 F.2d 245, 251-52 (4th Cir. 1985).

 2
that he has not begun to serve but for the bar imposed by McCleskey

v. Zant.

Accordingly, we affirm the decision of district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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