Opinion
No. 07-16369.
The panel unanimously finds this case suitable * for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 14, 2009.
Mark Lee Stinson, Vacaville, CA, pro se.
Brian Means, Brian George Smiley, AGCA-Office of the California Attorney General, Sacramento, CA, for Respondents-Appellees.
Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, District Judge, Presiding. D.C. No. CV-06-00068-FCD.
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Mark Lee Stinson appeals from the district court's judgment dismissing his 28 U.S.C. § 2254 petition for lack of jurisdication. We affirm.
The district court correctly determined "that Stinson's original § 2254 petition," which was dismissed because it was untimely, was disposed of on the merits for purposes of 28 U.S.C. § 2244(b)(3). McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009) (per curiam). As a result, the § 2254 petition that Stinson filed in 2006 was a second or successive petition. See id at 1030. Therefore, Stinson was required to obtain authorization from this Court before filing the petition in the district court. See 28 U.S.C. § 2244(b)(3). Because Stinson failed to obtain such authorization, the district court properly concluded that it lacked jurisdiction to consider the petition. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam).
Stinson's request for counsel is denied.