Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding.
Before O'SCANNLAIN, SILVERMAN, and GOULD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Donald James Meyer appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition as successive pursuant to 28 U.S.C. § 2244(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
The district court dismissed Meyer's section 2254 petition as successive based on the fact that Meyer's previous habeas petition was denied on the merits. We agree. See 28 U.S.C. § 2244(b)(2).
Accordingly, before Meyer can file a successive petition in the district court, section 2244(b)(3) requires that he make a prima facie showing to this court that his petition would satisfy section 2244(b)(2). We therefore construe Meyer's appeal as a request for permission to file a successive petition and conclude that Meyer has not made such a showing. See 28 U.S.C. § 2244(b)(2)(B)(i); see also Woratzeck v. Stewart, 118 F.3d 648, 652 (9th Cir.1997) (concluding that appellant had not made prima facie showing that he could not have uncovered evidence through previous due diligence).
AFFIRMED.