United States v. Robert Pryce

FILED
NOT FOR PUBLICATION FEB 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-56989
Plaintiff - Appellee, D.C. Nos. 2:06-cv-01571-PA
2:02-cr-01206-PA-
v. 001
ROBERT DENNIS PRYCE, AKA Seal A,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 9, 2011
Pasadena, California
Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.
Robert Pryce appeals the district court’s dismissal of his 28 U.S.C. § 2255motion to vacate, set aside, and correct his sentence as a “second or successive”
habeas petition. Pryce’s subsequent § 2255 motion constitutes a “second or
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
successive” motion because (1) his initial § 2255 motion was dismissed with
prejudice and he failed to pursue his appeal of that dismissal, and (2) his
subsequent § 2255 motion in the same matter asserts “claims that were or could
have been adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th
Cir. 2009) (per curiam) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)).
Because Pryce failed to obtain the requisite authorization from “a panel of
the . . . court of appeals” under § 2255(h), the district court “never had jurisdiction
to consider [Pryce’s second or successive petition] in the first place.” Burton v.
Stewart, 549 U.S. 147, 152 (2007); see also 28 U.S.C. § 2244(b)(3)(a) (“Before a
second or successive application permitted by this section is filed in the district
court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”) (emphasis added).
Accordingly, we dismiss for lack of jurisdiction.
DISMISSED.
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