Manse Sullivan v. Eddie Ylst, Warden , 46 F.3d 1145 ( 1995 )

46 F.3d 1145

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Manse SULLIVAN, Petitioner-Appellant,
v.
Eddie YLST, Warden, Respondent-Appellee.

No. 94-16716.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1995.*
Decided Jan. 23, 1995.

Before: WALLACE, Chief Judge, HALL and KLEINFELD, Circuit Judges.

1

MEMORANDUM**

2

Manse Sullivan, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2254 petition. In 1984, Sullivan pleaded guilty to rape and was sentenced to a total term of 28 years' imprisonment. He contends the district erred when it summarily dismissed his petition on the grounds that it was successive and therefore legally frivolous. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253. We affirm.

3

A district court may, without a hearing, dismiss a claim as successive 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). A district court's decision to deny consideration of the merits of a habeas petition because it is successive is subject to review for abuse of discretion. Howard v. Lewis, 905 F.2d 1318, 1321 (9th Cir.1990). We hold there was no abuse of discretion based upon the reasons stated by the district judge.

4

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3