Freeman Stanton v. Sam Law

FILED
NOT FOR PUBLICATION NOV 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FREEMAN WILLIAM STANTON, No. 08-35917
Petitioner - Appellant, D.C. No. 2:08-cv-00057-RFC
v.
MEMORANDUM *
SAM LAW, Warden; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief Judge, Presiding
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Montana state prisoner Freeman William Stanton appeals from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
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).
The district court properly dismissed Stanton’s petition as successive. We
take judicial notice of: (1) the 1987 district court order adjudicating the merits of a
habeas petition Stanton filed in 1986; and (2) this court’s memorandum disposition
affirming the district court’s judgment dismissing the 1986 petition. See United
States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,
248 (9th Cir. 1992) (stating that appellate courts generally “will not consider facts
outside the record developed before the district court[, but] may take notice of
proceedings in other courts, both within and without the federal judicial system, if
those proceedings have a direct relation to matters at issue”) (internal quotation
marks and citations omitted). Because the instant petition challenges the same
conviction which was the subject of Stanton’s 1986 petition, and because Stanton
did not obtain an order from this court pursuant to 28 U.S.C. § 2244(b)(3)(A) prior
to filing the successive petition, the district court properly dismissed the petition.
See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). The
district court committed no error in dismissing the petition rather than transferring
it to this court. See Allen v. Ornoski, 435 F.3d 946, 958 (9th Cir. 2006). We affirm
the district court.
We also construe Stanton’s appeal as a motion for an order authorizing the
district court to consider his successive petition pursuant to 28 U.S.C.
2 08-35917
§ 2244(b)(3)(A). See Cooper, 274 F.3d at 1274-75. So construed, we deny the
motion because Stanton fails to make “a prima facie showing that the application
satisfies the requirements of” § 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(C).
AFFIRMED.
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