Michael T. Senner v. J Gastelo, 8:17-cv-02251

Petitioner Michael T. Senner was convicted in 1994 in Orange County of first-degree murder with a firearm and sentenced to 26 years to life (the State Conviction).
Petitioner filed a federal habeas petition under 28 U.S.C. § 2254 in 2000 (First Petition) raising four claims (including ineffective assistance of counsel and sufficiency-of-evidence challenges); it was dismissed without prejudice for lack of exhaustion in 2001.
Petitioner filed a second § 2254 petition in 2001 (Second Petition); the court dismissed it with prejudice as untimely the same year; Petitioner did not appeal.
In 2017 the California Supreme Court denied a state habeas filing as untimely. In December 2017 Petitioner filed a third federal § 2254 petition (Third Petition) asserting the same four claims raised in the First Petition.
Petitioner did not seek or obtain Ninth Circuit authorization to file a second or successive § 2254 petition prior to filing the Third Petition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Third Petition is second or successive	Senner contends he may pursue federal review of his claims again	Respondent argues the Third Petition repeats claims that were or could have been adjudicated earlier	Court held the Third Petition is second or successive under § 2244(b)
Whether district court may hear merits without Ninth Circuit authorization	Senner implicitly asks the district court to consider the petition	Respondent contends district court lacks jurisdiction absent circuit authorization under § 2244(b)(3)	Court held it lacks jurisdiction to consider merits without Ninth Circuit permission (citing Burton)
Effect of prior dismissal as untimely	Senner did not challenge that dismissal	Respondent asserts the prior untimely dismissal is a disposition on the merits, creating a permanent bar to federal review	Court held the Second Petition’s untimely dismissal constitutes a merits disposition, making subsequent petitions second or successive (citing McNabb)
Certificate of appealability (COA)	Senner might seek a COA to appeal the dismissal	Respondent opposed a COA	Court denied a COA under 28 U.S.C. § 2253(c), concluding appealability is unwarranted

McNabb v. Yates, 576 F.3d 1028 (9th Cir. 2009) (dismissal as time-bar renders later petitions second or successive under § 2244(b))
Burton v. Stewart, 127 S. Ct. 793 (2007) (district courts lack jurisdiction to consider second or successive petitions absent circuit authorization)
Murray v. Greiner, 394 F.3d 78 (2d Cir. 2005) (untimely dismissal renders later petitions second or successive)
Altman v. Benik, 337 F.3d 764 (7th Cir. 2003) (same principle regarding successive petitions)
Slack v. McDaniel, 120 S. Ct. 1595 (2000) (standards for issuing a certificate of appealability)