United States v. 2008-10-14 | 08-73272 | FREDDIE WRIGHT V D. DEXTER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 FREDDIE WRIGHT,
Petitioner, No. 08-73272
v.  ORDER
D. DEXTER, Warden,
Respondent. 
Filed October 14, 2008
Before: Kim McLane Wardlaw, William A. Fletcher and
Johnnie B. Rawlinson, Circuit Judges.
ORDER
The application for authorization to file a second or succes-
sive 28 U.S.C. § 2254 habeas corpus petition in the district
court is denied. Petitioner has not made 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 unavail-
able; or
(B)(i) the factual predicate for the claim could not
have been discovered previously through the exer-
cise of due diligence; and (ii) the facts underlying
the claim, if proven and viewed in light of the evi-
dence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitu-
tional error, no reasonable fact finder would have
found the applicant guilty of the underlying offense.
14465

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Petitioner asserts that the district court should vacate his
sentence because it was imposed in violation of Cunningham
v. California, 549 U.S. 270 (2007). We have held that Cun-
ningham “did not announce a new rule of constitutional law.”
Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008). Therefore,
Cunningham cannot form the basis of an application for a sec-
ond or successive 28 U.S.C. § 2254 habeas corpus petition.
No petition for rehearing or motion for reconsideration
shall be filed or entertained in this case. See 28 U.S.C.
§ 2244(b)(3)(E).
DENIED.
14466 WRIGHT v. DEXTER

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