108 F.3d 1384: Louis R. Fresquez, Petitioner-appellant, v. Teresa Rocha, Warden, Respondent-appellee

United States Court of Appeals, Ninth Circuit. - 108 F.3d 1384

Submitted March 11, 1997.*Decided March 14, 1997


Before: SNEED, LEAVY, and THOMAS, Circuit Judges.

1

MEMORANDUM**

2

Louis R. Fresquez, a California state prisoner, appeals pro se the district court's denial of his consolidated 28 U.S.C. § 2254 petitions. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, Calderon v. Prunty, 59 F.3d 1005, 1008 (9th Cir.1995), and affirm.

3

Fresquez requests injunctive relief in the form of access to the law library. We earlier denied this request in an order filed April 15, 1996, and decline to reconsider this issue on the basis of the law of the case doctrine. See United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986) (noting that "a merits panel does not lightly overturn a decision made by a motions panel during the course of the same appeal"). To the extent that Fresquez is contending that he was denied access to the courts in an earlier habeas petition, we note that this claim is properly brought as a civil rights action. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir.1991).

4

We affirm issues numbered one, two, three, six and eight in Fresquez's Opening Brief for the reasons stated by the district court in its order filed July 1, 1995. We decline to consider issues numbered four, five and seven because they were raised for the first time on appeal. See Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.1993). Moreover, these issues were raised and rejected in Fresquez's earlier section 2254 petition and are thus successive. See Farmer v. McDaniel, 98 F.3d 1548, 1554 (9th Cir.1996) ("A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits.")

5

Accordingly, the district court's denial is

6

AFFIRMED.