916 F. 2d 716 - Garaux v. Vasquez

Randolph GARAUX, Petitioner-Appellant,
v.
Daniel VASQUEZ, Warden, Respondent-Appellee.

No. 89-55268.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 10, 1990.*
Decided Oct. 16, 1990.

Before WILLIAM A. NORRIS, WIGGINS and KOZINSKI, Circuit Judges.

MEMORANDUM**

Randolph Garaux, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas corpus petition as a successive petition. Garaux contends that he was denied his Fifth Amendment privilege against self-incrimination, that this ground was not adjudicated on the merits in the denial of his first habeas petition, and that his petition should not have been dismissed as successive before the court applied the "ends of justice" test.

We agree with the district court that Garaux's petition is successive because it raises no new or different grounds for relief, the prior determination was on the merits, and he was not entitled to reconsideration of the prior ruling. Although the district court did not make a specific finding that the ends of justice would not be served by reaching the merits of the petition, its views on this point may be implied from the record. See Howard v. Lewis, 905 F.2d 1318, 1324 (9th Cir.1990). Here, Garaux filed an ex parte motion for reconsideration in which he challenged the district court's failure to make a specific "ends of justice" determination. In ruling on this motion, the district court stated that after due consideration, the motion was denied. It is clear from this ruling that the district court determined that the ends of justice would not be served by reaching the merits of the petition. Id.