Lawrence Remsen v. Attorney General of the State

FILED
NOT FOR PUBLICATION MAR 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAWRENCE REMSEN, No. 09-15756
Petitioner - Appellant, D.C. No. 2:08-cv-00447-FCD-
EFB
v.
ATTORNEY GENERAL OF THE STATE MEMORANDUM *
OF CALIFORNIA; JAMES E. TILTON;
JAMES DAVIS; M. MARTEL; ARNOLD
SCHWARZENEGGAR,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Submitted December 27, 2011 **
San Francisco, California
Before: FARRIS, BEEZER, and LEAVY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lawrence Remsen appeals pro se the district court’s order dismissing his
petition for habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant
to 28 U.S.C. § 1291. The facts of the case are known to the parties. We repeat
them only as necessary.
The Antiterrorism and Effective Death Penalty Act (AEDPA) bars the filing
of second or successive petitions unless the prisoner has obtained an order from the
appropriate court of appeals authorizing the district court to consider the petition.
28 U.S.C. § 2244(b)(3)(A)–(E). If a prisoner fails to obtain such an order, the
district court lacks jurisdiction to consider the petition and should dismiss it.
Burton v. Stewart, 549 U.S. 147, 157 (2009) (per curium).
Remsen filed a federal habeas petition in 2002, which was dismissed as
untimely under 28 U.S.C. § 2244(d)(1). This constitutes a dismissal on the merits
under AEDPA, McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009), making the
2002 petition Remsen’s first federal habeas petition for the purposes of AEDPA’s
bar on second petitions. Therefore when Remsen sought to file the instant petition
in 2008, he was obligated to obtain an order from this court authorizing the filing.
The district court correctly held that his failure to do so meant that it lacked
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jurisdiction to consider the petition. Accordingly, the judgment of the district court
is affirmed. Remsen’s pending motion to take judicial notice is denied as moot.
AFFIRMED
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