Ellis v. Kramer

Filing 5

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

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