Ware v. Carey

204 F. App'x 657

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 14, 2006
• Docket: No. 05-16760
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Allen Kirk Ware appeals pro se from the district court’s judgment dismissing for lack of jurisdiction his 28 U.S.C. § 2254 habeas corpus petition challenging the 1987 decision of the Board of Prison Terms (“Board”) rescinding his parole date and finding him unsuitable for parole. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

On appeal, Ware contends that the district court erred in dismissing his 2003 habeas petition as successive to his 1998 habeas petition because although “inartfully pled[,] the habeas petition pertained to issues raised at the October 30, 2001 Board hearing, and not merely error from 1987.”

We review for an abuse of discretion the district court’s dismissal of a § 2254 petition as successive. United States v. Gutierrez, 116 F.3d 412, 415 (9th Cir.1997). The fact that a petitioner has previously filed habeas petitions does not automatically render subsequent petitions “second or successive.” See Hill v. Alaska, 297 F.3d 895, 898 (9th Cir.2002). A ground is “successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments.” See United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998) (internal quotations omitted).

We conclude that none of the claims in Ware’s 2003 petition is unique to his 2001 proceeding or reflects intervening changes in the law, but instead his claims stem from his ongoing dissatisfaction with Board’s actions in 1987. Because the claims were addressed on the merits in his 1998 habeas petition, we affirm the district court.

The Government’s motion for a stay of appellate proceedings is denied.

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 9th Cir. R. 36-3.