Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)
Annotate this CaseNorman E. TEDDER, Plaintiff-Appellant,v.STATE OF OREGON CORRECTIONS DEPT., Defendant-Appellee.
No. 89-35574.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 20, 1990.* Decided Aug. 22, 1990.
Before TANG, ALARCON and WIGGINS, Circuit Judges.
MEMORANDUM**
Norman E. Tedder, an Oregon state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. Tedder contends that his conviction was based on evidence obtained through an unconstitutional search and seizure and on perjured testimony. We review for an abuse of discretion, Howard v. Lewis, 905 F.2d 1318, 1321 (9th Cir. 1990), and affirm.
A district court may dismiss a habeas petition, without a hearing, on the basis of a prior adjudication only if: "(1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States, 373 U.S. 1, 15 (1963); see also 28 U.S.C. § 2244(b); Rule 9(b), 28 U.S.C. foll. Sec. 2254. The burden of proof is on the petitioner to establish that the ends of justice would be served by relitigation of the claims previously decided against him. Sanders, 373 U.S. at 17. To meet this burden, the petitioner must supplement his constitutional claim with a colorable showing of factual innocence. Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion).
Here, after exhausting his state post-conviction remedies, Tedder filed his first federal habeas petition in May, 1987. In that petition, Tedder claimed that the police searched his house without a warrant and seized evidence which was admitted at his trial. Tedder also claimed that perjured testimony had been given at his trial, and alleged that a conspiracy existed to cover-up the criminal activities of the police and officers of the court. After reviewing the records from both Tedder's trial and his state post-conviction hearing, the district court dismissed the petition, finding that: (1) the police had a warrant to search Tedder's house; (2) Tedder had a full and fair opportunity to litigate this fourth amendment claim at his state post-conviction hearing, and therefore was precluded from raising it in his federal habeas petition; and (3) there was no evidence to support his allegations of perjury and conspiracy.
In July of 1988, Tedder filed another habeas petition, the subject of this appeal. Tedder again claimed that the police did not have a warrant to search his house. Tedder further alleged that the district attorney coerced the police officers to commit perjury at his trial by testifying that they had conducted the search pursuant to a warrant. The district court adopted the magistrate's findings and recommendation and dismissed the petition as successive.
The district court did not err by dismissing the petition because the three factors set forth in Sanders apply to Tedder's current habeas petition. First, Tedder has raised the same grounds for relief in a previous petition and they were determined adversely to him.1 See Sanders, 373 U.S. at 16. Second, the prior determination was on the merits. See id. Finally, the ends of justice would not be served by reaching the merits of these claims again because Tedder has made no colorable showing of factual innocence. See Kuhlmann, 477 U.S. at 454.2
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
In his first petition, Tedder made general allegations of perjury and of a conspiracy among the police and officers of the court. In his current petition, Tedder characterizes his perjury claim in a slightly different manner by stating that the district attorney coerced the police to commit perjury. Nevertheless, both petitions raise the same grounds for relief--that the police did not have a search warrant and that their testimony at trial regarding the warrant was perjured. The district court already has considered these grounds and has determined them adversely to Tedder
It has not yet been decided whether the Ninth Circuit should follow the "ends of justice" standard set forth in the Kuhlmann plurality opinion. See Howard, 905 F.2d at 1325. Nevertheless, even under this court's earlier formulation of the standard, the ends of justice would not be served by reaching the merits of Tedder's successive petition. See id. (" 'a district court may refuse to entertain a repetitious petition absent a showing of manifest injustice or a change in law.' ") (quoting Polizzi v. United States, 550 F.2d 1133, 1135 (9th Cir. 1976))
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