Lawrence Remsen v. Attorney General of the State
Opinion
Opinion
MEMORANDUM
Lawrence Remsen appeals pro se the district court’s order dismissing his petition for habeas corpus under 28 U.S.C. § 2254 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . The facts of the case are known to the parties. We repeat them only as necessary.
The Antiterrorism and Effective Death Penalty Act (AEDPA) bars the filing of second or successive petitions unless the prisoner has obtained an order from the appropriate court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244 (b)(3)(A)-(E). If a prisoner fails to obtain such an order, the district court lacks jurisdiction to consider the petition and should dismiss it. Burton v. Stewart, 549 U.S. 147, 157 , 127 S.Ct. 793 , 166 L.Ed.2d 628 (2007) (per curiam).
Remsen filed a federal habeas petition in 2002, which was dismissed as untimely under 28 U.S.C. § 2244 (d)(1). This constitutes a dismissal on the merits under AEDPA, McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.2009), making the 2002 peti tion Remsen’s first federal habeas petition for the purposes of AEDPA’s bar on second petitions. Therefore when Remsen sought to file the instant petition in 2008, he was obligated to…