Lazor v. Yarborough

61 F. App'x 430

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2003
• Docket: No. 02-15624; D.C. No. CV-99-20586-RMW
• Status: Published

Opinion

MEMORANDUM

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California state prisoner P.F. Lazor appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). The district court dismissed Lazor’s petition because it found that it was his second petition and he had not received our authorization before filing it in the district court. See 28 U.S.C. § 2244(b)(3). We review the dismissal de novo, any findings of fact for clear error, and the decision not to hold an evidentiary hearing for abuse of discretion. Karis v. Calderon, 283 F.3d 1117, 1126 (9th Cir.2002). We affirm.

Lazor contends that the instant petition is in fact his first federal petition because the petition he filed earlier was dismissed for failure to exhaust and a paralegal subsequently amended and refiled the petition without his knowledge. The district court, after reviewing Lazor’s affidavits and the record, found that Lazor was at least “complicit” in the further prosecution of his first petition, and we cannot say that this finding was clearly erroneous. In addition, the district court did not abuse its discretion when it made this decision without holding an evidentiary hearing. See Williams v. Woodford, 306 F.3d 665, 688-89 (9th Cir.2002) (stating that a district court need not hold an evidentiary hearing in a habeas case, even if credibility is at issue, when the evidence already in the record “fully present[s] the relevant facts” and live testimony “would not alter the court’s view of the record”).

Thus, the district court properly dismissed Lazor’s petition as an unauthorized successive petition. See 28 U.S.C. § 2244(b)(3); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.2001) (per curiam) (stating that district courts lack jurisdiction to consider unauthorized successive petitions).¹

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We deny Lazor's alternative request for authorization to file a successive petition. See 28 U.S.C. § 2244(b)(2)(B).