Seawright v. Director of California Department of Corrections & Rehabilitation

407 F. App'x 257

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 2011
• Docket: 07-56202
• Status: Unpublished

Opinions

MEMORANDUM

*

California state prisoner Michael Wayne Seawright (“Seawright”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for his part in the 1983 first degree murder of Catherine Stroup. Seawright’s petition alleged that the state trial court violated his due process rights when it did not allow him to present defense evidence that the crime was committed by Catherine’s husband, James Stroup Sr. The district court dismissed Seawright’s habeas petition because it found it to be a second or successive petition. We affirm.

This court has held that a habeas petition is second or successive if it raises claims that were or could have been adjudicated on the merits. See Woods v. Carey, 525 F.3d 886, 888 (9th Cir.2008). Sea-wright’s current petition is a second or successive petition because the district court had previously dismissed Seawright’s similar petition on the merits with prejudice. On appeal, this court found that Seawright failed to exhaust his due process claim in state courts. However, this court stated that it “affirmed” the judgment of the district court.¹

Seawright contends this court mistakenly stated that it “affirmed” the judgment of the district court. Yet, Seawright never filed a rehearing petition or otherwise appealed this court’s affirmance of the district court’s judgment. Thus, because the time to challenge this court’s 2002 decision had long since lapsed, he cannot collaterally attack that judgment on this appeal.

Seawright was required to obtain authorization from this court to file a second or successive petition. 28 U.S.C. § 2244(b)(3)(A). Seawright did not receive such authorization. Hence, the district court properly dismissed Seawright’s current petition.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . Despite the fact that Seawright's due process claim was unexhausted, the district court had jurisdiction to deny Seawright’s petition on the merits. 28 U.S.C. § 2254(b)(2).