Van Hoosen v. Kramer

319 F. App'x 590

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2009
• Docket: No. 07-55307
• Status: Published

Opinion

MEMORANDUM

*

Daniel Stanley Van Hoosen appeals the district court’s dismissal of his petition for habeas corpus relief. See 28 U.S.C. § 2254. We affirm.

The district court determined that the petition was second or successive because Van Hoosen was, for a second time, attempting to overturn his conviction and the first petition had been decided on the merits. We agree that the petition was a second or successive attack on his conviction. Therefore, Van Hoosen was required to obtain an order from this court before he filed that petition. See 28 U.S.C. § 2244(b)(3)(A); Felker v. Turpin, 518 U.S. 651, 657, 116 S.Ct. 2333, 2337, 135 L.Ed.2d 827 (1996); United States v. Lopez, 534 F.3d 1027, 1033 (9th Cir.), reh’g granted, 301 Fed.Appx. 587 (9th Cir.2008); Cooper v. Calderon, 274 F.3d 1270, 1272-74 (9th Cir.2001) (per curiam). The requirement that he obtain that order is jurisdictional. See Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 796, 166 L.Ed.2d 628 (2007) (per curiam). If Van Hoosen believed that new facts had come to light, that was merely a basis for asking us to issue an order authorizing consideration of an application for relief. See 28 U.S.C. § 2244(b)(2), (b)(3)(A). Moreover, he did not point to any other possible exception to the requirement. Cf. Panetti v. Quarterman, 551 U.S. 930, -, 127 S.Ct. 2842, 2852-55, 168 L.Ed.2d 662 (2007) (claim of incompetence to be executed that could not have been brought up earlier as a matter of law); Slack v. McDaniel, 529 U.S. 473, 485-86, 120 S.Ct. 1595, 1604-05, 146 L.Ed.2d 542 (2000) (claim where prior petition not considered on the merits); Hill v. Alaska, 297 F.3d 895, 899 (9th Cir.2002) (challenge to a later failure to grant a prisoner mandatory parole).¹

AFFIRMED.

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

1 . We decline to consider the issues that Van Hoosen raises for the first time on appeal. See Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.2006).