UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 15, 2011
JULIO HERRERA, PETITIONER,
SMITH, WARDEN, RESPONDENT.
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LEAVY, TASHIMA, and BYBEE, Circuit Judges.
The application for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court is denied. Petitioner has not made a prima facie showing under 28 U.S.C. § 2244(b)(2) that:
(A) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the petitioner guilty of the underlying offense.
All pending motions are denied as moot.
No petition for rehearing or motion for reconsideration shall be filed or in this case. See 28 U.S.C. § 2244(b)(3)(E).
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