NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JAN 05 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHAEL WAYNE SEAWRIGHT, No. 07-56202

Petitioner - Appellant, D.C. No. CV-06-08273-CBM

v.

MEMORANDUM*

DIRECTOR OF THE CALIFORNIA

DEPARTMENT OF CORRECTIONS

AND REHABILITATION,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted December 7, 2010 Pasadena, California

Before: PREGERSON, CLIFTON, and BEA, Circuit Judges.

California state prisoner Michael Wayne Seawright (“Seawright”) appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his

conviction for his part in the 1983 first degree murder of Catherine Stroup.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Seawright’s petition alleged that the state trial court violated his due process rights

when it did not allow him to present defense evidence that the crime was

committed by Catherine’s husband, James Stroup Sr. The district court dismissed

Seawright’s habeas petition because it found it to be a second or successive

petition. We affirm.

This court has held that a habeas petition is second or successive if it raises

claims that were or could have been adjudicated on the merits. See Woods v.

Carey, 525 F.3d 886, 888 (9th Cir. 2008). Seawright’s current petition is a second

or successive petition because the district court had previously dismissed

Seawright’s similar petition on the merits with prejudice. On appeal, this court

found that Seawright failed to exhaust his due process claim in state courts.

However, this court stated that it “affirmed” the judgment of the district court.1

Seawright contends this court mistakenly stated that it “affirmed” the

judgment of the district court. Yet, Seawright never filed a rehearing petition or

otherwise appealed this court’s affirmance of the district court’s judgment. Thus,

because the time to challenge this court’s 2002 decision had long since lapsed, he

cannot collaterally attack that judgment on this appeal.

1 Despite the fact that Seawright’s due process claim was unexhausted, the district court had jurisdiction to deny Seawright’s petition on the merits. 28 U.S.C. § 2254(b)(2).

2 Seawright was required to obtain authorization from this court to file a

second or successive petition. 28 U.S.C. § 2244(b)(3)(A). Seawright did not

receive such authorization. Hence, the district court properly dismissed

Seawright’s current petition.

AFFIRMED

3

FILED

Searight v. Director of CDC, No. 07-56202 JAN 05 2011

MOLLY C. DWYER, CLERK

PREGERSON, Circuit Judge, specially concurring: U.S. COURT OF APPEALS

Another panel of this court previously decided Seawright’s appeal of his

first habeas petition and concluded that Seawright had failed to exhaust his federal

claims in state court. Seawright v. Terhune, 42 F. App’x 945, 946 (9th Cir. 2002).

Even though the panel did not reach the merits of Seawright’s habeas petition,

oddly the panel “affirmed” the district court’s judgment, id., which denied

Seawright’s habeas petition on the merits and dismissed it with prejudice.

While this court is permitted to affirm the district court’s judgment of the

unexhausted claim on the merits pursuant to 28 U.S.C. § 2254(b)(2), it is not clear

from the previous panel’s memorandum disposition that this is what the panel

actually intended. Thus, it is our court that may have made a fatal mistake. But

because Seawright’s attorney did not file a petition for panel rehearing and the

mandate issued long ago, the judgment of the previous panel unfortunately stands.