FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FREDDIE WRIGHT,                         
                          Petitioner,
                                        
                                             No. 08-73272
              v.
                                               ORDER
D. DEXTER, Warden,
                        Respondent.
                                        
                   Filed October 14, 2008

  Before: Kim McLane Wardlaw, William A. Fletcher and
           Johnnie B. Rawlinson, Circuit Judges.


                           ORDER

   The application for authorization to file a second or succes-
sive 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 unavail-
    able; or

    (B)(i) the factual predicate for the claim could not
    have been discovered previously through the exer-
    cise of due diligence; and (ii) the facts underlying
    the claim, if proven and viewed in light of the evi-
    dence as a whole, would be sufficient to establish by
    clear and convincing evidence that, but for constitu-
    tional error, no reasonable fact finder would have
    found the applicant guilty of the underlying offense.

                             14465
14466                 WRIGHT v. DEXTER
   Petitioner asserts that the district court should vacate his
sentence because it was imposed in violation of Cunningham
v. California, 

(2007). We have held that Cun-
ningham “did not announce a new rule of constitutional law.”
Butler v. Curry, 

, 639 (9th Cir. 2008). Therefore,
Cunningham cannot form the basis of an application for a sec-
ond or successive 28 U.S.C. § 2254 habeas corpus petition.

   No petition for rehearing or motion for reconsideration
shall be filed or entertained in this case. See 28 U.S.C.
§ 2244(b)(3)(E).

  DENIED.
                             PRINTED FOR
                   ADMINISTRATIVE OFFICE—U.S. COURTS
                BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
                          © 2008 Thomson Reuters/West.