Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1470 (9th Cir. 1991)

Paul JACOBS, Petitioner-Appellant,v.Daniel VASQUEZ, Respondent-Appellee.

No. 87-2419.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 20, 1991.* Decided Feb. 22, 1991.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

MEMORANDUM** 

Paul Jacobs, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. 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 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, Jacobs's first federal habeas petition was denied in 1984. Jacobs filed another federal habeas petition in 1986, the subject of this appeal. The district court adopted the magistrate's findings and recommendation and dismissed the petition as successive.1 

The district court properly dismissed Jacobs's second petition based on the three factors set forth in Sanders. First, Jacobs has raised the same grounds for relief in a previous petition and they were determined adversely to him. 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 Jacobs 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

 1

Jacobs's contention that the district court lacked jurisdiction to refer his habeas petition to a magistrate is meritless. Pursuant to 28 U.S.C. § 636(b) (1) (B), a magistrate is authorized to prepare proposed findings of fact and a recommendation for disposition of a habeas petition

 2

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 Jacobs'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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