Freddie Wright v. D. Dexter

546 F.3d 1096, 2008 U.S. App. LEXIS 21678, 2008 WL 4558410

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 14, 2008
• Docket: 08-73272
• Status: Published

Opinion

ORDER

The application for authorization to file a second or successive 28 U.S.C. § 2254 ha-beas corpus petition in the district court is denied. Petitioner has not made a prima facie showing under 28 U.S.C. § 2244(b)(2) that:

(A) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (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 fact finder would have found the applicant guilty of the underlying offense.

Petitioner asserts that the district court should vacate his sentence because it was imposed in violation of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). We have held that Cunningham “did not announce a new rule of constitutional law.” Butler v. Curry, 528 F.3d 624, 639 (9th Cir.2008). Therefore, Cunningham cannot form the basis of an application for a second or successive 28 U.S.C. § 2254 habeas corpus petition.

No petition for rehearing or motion for reconsideration shall be filed or entertained in this case. See 28 U.S.C. § 2244(b)(3)(E).

DENIED.