Manse Sullivan, Petitioner-appellant, v. Eddie Ylst, Warden, Respondent-appellee, 46 F.3d 1145 (9th Cir. 1995)

MEMORANDUM^** 

Manse Sullivan, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition. In 1984, Sullivan pleaded guilty to rape and was sentenced to a total term of 28 years' imprisonment. He contends the district erred when it summarily dismissed his petition on the grounds that it was successive and therefore legally frivolous. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

A district court may, without a hearing, dismiss a claim as successive 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). A district court's decision to deny consideration of the merits of a habeas petition because it is successive is subject to review for abuse of discretion. Howard v. Lewis, 905 F.2d 1318, 1321 (9th Cir. 1990). We hold there was no abuse of discretion based upon the reasons stated by the district judge.

AFFIRMED.