                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 06 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LAWRENCE REMSEN,                                 No. 09-15756

              Petitioner - Appellant,            D.C. No. 2:08-cv-00447-FCD-
                                                 EFB
  v.

ATTORNEY GENERAL OF THE STATE                    MEMORANDUM *
OF CALIFORNIA; JAMES E. TILTON;
JAMES DAVIS; M. MARTEL; ARNOLD
SCHWARZENEGGAR,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                          Submitted December 27, 2011 **
                             San Francisco, California

Before: FARRIS, BEEZER, and LEAVY, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Lawrence Remsen appeals pro se the district court’s order dismissing his

petition for habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant

to 28 U.S.C. § 1291. The facts of the case are known to the parties. We repeat

them only as necessary.

      The Antiterrorism and Effective Death Penalty Act (AEDPA) bars the filing

of second or successive petitions unless the prisoner has obtained an order from the

appropriate court of appeals authorizing the district court to consider the petition.

28 U.S.C. § 2244(b)(3)(A)–(E). If a prisoner fails to obtain such an order, the

district court lacks jurisdiction to consider the petition and should dismiss it.

Burton v. Stewart, 549 U.S. 147, 157 (2009) (per curium).

      Remsen filed a federal habeas petition in 2002, which was dismissed as

untimely under 28 U.S.C. § 2244(d)(1). This constitutes a dismissal on the merits

under AEDPA, McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009), making the

2002 petition Remsen’s first federal habeas petition for the purposes of AEDPA’s

bar on second petitions. Therefore when Remsen sought to file the instant petition

in 2008, he was obligated to obtain an order from this court authorizing the filing.

The district court correctly held that his failure to do so meant that it lacked




                                            2
jurisdiction to consider the petition. Accordingly, the judgment of the district court

is affirmed. Remsen’s pending motion to take judicial notice is denied as moot.

AFFIRMED




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