Ellis v. Kramer

Filing 5

ORDER of USCA. (slh, COURT STAFF) (Filed on 12/15/2008)

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F IL E D U N IT E D STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NOV 05 2008 MOLLY C. DWYER, CLERK U . S . C O U R T OF APPE A L S R O B E R T ELLIS, Petitioner, v. N o . 08-73498 ORDER M .C . KRAMER, Warden, Respondent. B efo re: TROTT, GOULD and TALLMAN, Circuit Judges. T h e application for authorization to file a second or successive 28 U.S.C. 2254 habeas corpus petition in the district court is denied. Petitioner has not m ad e a prima facie showing under 28 U.S.C. 2244(b)(2) that: (A ) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously u n av ailab le; or ( B ) (i) the factual predicate for the claim could not have been discovered p rev io u sly through the exercise of due diligence; and (ii) the facts u n d erlyin g the claim, if proven and viewed in light of the evidence as a w h o le , would be sufficient to establish by clear and convincing evidence th at, but for constitutional error, no reasonable fact finder would have found th e applicant guilty of the underlying offense. N o petition for rehearing or motion for reconsideration shall be filed or en tertain ed in this case. See 28 U.S.C. 2244(b)(3)(E). KB/MOATT

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