Bernard Lee Hamilton v. Arthur Calderon, Warden , 134 F.3d 938 ( 1998 )

134 F.3d 938

98 Cal. Daily Op. Serv. 491

Bernard Lee HAMILTON, Petitioner,
v.
Arthur CALDERON, Warden, Respondent.

No. 97-80702.

United States Court of Appeals,
Ninth Circuit.

Jan. 16, 1998.

Bernard Hamilton, San Quentin, California, in pro se for Petitioner.

Pat Zaharopoulos, Deputy Attorney General, San Diego, California, for Respondent.

1

Before: SCHROEDER, FLETCHER, and TROTT, JJ.

ORDER

2

Hamilton, pro se, has applied for authorization to file a subsequent petition in district court. We deny authorization for two reasons:

3

A final judgment imposing sentence has not been entered in his case. Phillips v. Vasquez, 56 F.3d 1030 (9th Cir.1995), relied on by Hamilton, does not apply to his case. The extreme delay in the California Supreme Court's review of Phillips' sentence is not this case. Hamilton's sentence had been under review by the California Supreme Court for less than two years when his latest federal habeas petition was lodged.

4

Secondly, Hamilton does not allege that he is entitled to relief under a new law made retroactive by the Supreme Court. See 28 U.S.C. § 2244(b)(2)(A) (West 1997). Therefore, under section 2244(b)(2)(B), Hamilton must make a prima facie showing that:

5

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

6

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

7

See 28 U.S.C. § 2244(b)(2)(B) (West 1997); see also 28 U.S.C. § 2244(b)(3)(C) (West 1997); Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir.1997). We have concluded, after careful review of all pleadings and exhibits filed, that Hamilton has failed to make a prima facie showing that he has complied with both requirements of section 2244(b)(2)(B) for any claim.

8

Accordingly, his pro se application for authorization to file a subsequent petition in district court is DENIED.