                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 28 2011

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-56989

              Plaintiff - Appellee,              D.C. Nos.    2:06-cv-01571-PA
                                                              2:02-cr-01206-PA-
  v.                                             001

ROBERT DENNIS PRYCE, AKA Seal A,
                                                 MEMORANDUM *
              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                      Argued and Submitted February 9, 2011
                               Pasadena, California

Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.




       Robert Pryce appeals the district court’s dismissal of his 28 U.S.C. § 2255

motion to vacate, set aside, and correct his sentence as a “second or successive”

habeas petition. Pryce’s subsequent § 2255 motion constitutes a “second or



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
successive” motion because (1) his initial § 2255 motion was dismissed with

prejudice and he failed to pursue his appeal of that dismissal, and (2) his

subsequent § 2255 motion in the same matter asserts “claims that were or could

have been adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th

Cir. 2009) (per curiam) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)).

      Because Pryce failed to obtain the requisite authorization from “a panel of

the . . . court of appeals” under § 2255(h), the district court “never had jurisdiction

to consider [Pryce’s second or successive petition] in the first place.” Burton v.

Stewart, 549 U.S. 147, 152 (2007); see also 28 U.S.C. § 2244(b)(3)(a) (“Before a

second or successive application permitted by this section is filed in the district

court, the applicant shall move in the appropriate court of appeals for an order

authorizing the district court to consider the application.”) (emphasis added).

      Accordingly, we dismiss for lack of jurisdiction.




      DISMISSED.




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