                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 13 2014

                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


JOHNNEY RAMEY,                                    No. 11-16774

               Petitioner - Appellant,            D.C. No. 1:11-cv-00449-OWW
  v.

R. HILL, Warden,                                  MEMORANDUM*

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                            Submitted March 10, 2014**

Before:        PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       California state prisoner Johnney Ramey appeals from the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have

jurisdiction under 28 U.S.C. § 2253, and we vacate and remand.

       The state argues several alternative bases for affirmance, including that the

petition was an unauthorized second or successive petition within the meaning of

          *
             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).
28 U.S.C. § 2244(b). When Ramey filed his first section 2254 petition, in

September 1998, he was in custody pursuant to the state court’s July 1998

amended judgment, which is the very judgment that he seeks to challenge in the

instant petition. Ramey did not seek authorization prior to filing his petition in this

case, and neither his petition nor his brief on appeal makes a prima facie showing

of his entitlement to do so. See 28 U.S.C. § 2244(b). Accordingly, the district

court was without jurisdiction to entertain the petition. See Burton v. Stewart, 549

U.S. 147, 156-57 (2007). We vacate and remand with instructions to dismiss the

petition for lack of jurisdiction.

       VACATED and REMANDED.




                                           2                                    11-16774
