NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

DANNY MCDOWELL,

 Petitioner - Appellant,

 v.

DOMINGO URIBE, Jr., Warden,

 Respondent - Appellee.

No. 13-55159

D.C. No. 5:12-cv-01271-JAK-AN

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding

Argued and Submitted June 3, 2015

Pasadena, California

Before: MELLOY,**

 BYBEE, and IKUTA, Circuit Judges. 

 

State prisoner Danny McDowell filed a federal habeas petition in 2012. A

district court dismissed the petition as successive, finding McDowell knew about the

FILED

AUG 07 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

 ** The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.

Court of Appeals for the Eighth Circuit, sitting by designation.
factual predicate underlying his petition at the time he filed his initial habeas petition. 

For the reasons stated below, we affirm. 

I

McDowell was the victim of a gang-related assault in 1989 or 1990, suffering

a fractured skull and head trauma. He experienced constant headaches, memory loss,

and cognitive issues. Ultimately, he had two brain surgeries over the span of four

years. 

On June 14, 1995, McDowell and his wife, Aretha, burglarized an Allstate

Insurance office. McDowell was subsequently found guilty of burglary. Because this

was McDowell's "third strike," he was sentenced to prison for 26 years to life.

1

In February 2000, McDowell filed his first habeas petition. McDowell alleged

trial counsel was ineffective because counsel failed to investigate his medical and

mental infirmities and failed to present evidence at trial relating to the infirmities. The

district court determined that the habeas petition was filed outside of AEDPA's

one-year statute of limitations. 

1 McDowell has since been paroled under California Proposition 36 and is now

off parole. 

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In August 2009, McDowell filed various motions and attached another habeas

petition in the district court. He asked the district court to reopen his case, grant him

an exemption from AEDPA's one-year statute of limitations, and allow him to file

another habeas petition. The court found that McDowell was not entitled to relief

because his new habeas petition would be successive. 

In January 2012, McDowell filed an application with this Court, requesting

leave to file yet another habeas petition. After our Court granted his request,

McDowell filed another habeas petition in August 2012. The district court again

dismissed McDowell's petition as successive, finding McDowell failed to show the

factual predicate for any of his claims could not have been discovered previously

through the exercise of due diligence. McDowell appeals. 

II

We review a district court's dismissal of a petition for a writ of habeas corpus

for lack of jurisdiction de novo. Hasan v. Galaza, 254 F.3d 1150, 1153 (9th Cir.

2001).

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AEDPA applies to McDowell's successive habeas petition. Relevant to this

appeal, a petitioner may file a successive petition raising a claim that was not

presented in a prior application if: 

(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 applicant guilty of the underlying offense. 

28 U.S.C. § 2244(b)(2)(B). Claims presented in a successive petition that were

presented in a prior application must be dismissed. Id. § 2244(b)(1). 

McDowell's claims in his initial habeas petition related to his mental capacity. 

The initial petition stated he "suffered from mental diminished capacity" and "counsel

failed to present evidence . . . [to show McDowell] is a registered mentally disabled

person by the state of California for a prior history of brain surgery." McDowell’s

current claim that his trial counsel was ineffective because counsel failed to

adequately investigate McDowell’s competence was presented in his initial habeas

petition. We therefore lack jurisdiction over this claim. See id. Because McDowell’s

other claims, like the claims in his initial petition, are derived from his diminished

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mental capacity, he could have discovered, and in fact did discover prior to his initial

habeas petition, the factual predicate underlying those claims—diminished mental

capacity. It is undisputed that McDowell suffers from forgetfulness, a lack of

memory, and an inability to complete simple tasks. These characteristics, standing

alone, do not warrant the conclusion that he was unable to discover the factual

predicate underlying his present claims. And McDowell presents no evidence to

demonstrate he did not know of or could not have discovered these infirmities prior

to his initial habeas petition. Therefore, by failing to include the present claims in his

initial petition, McDowell failed to show due diligence. See 28 U.S.C.

§ 2244(b)(2)(B)(i); Gage v. Chappell, No. 13-73438, 2015 WL 4394008, at *5 (9th

Cir. July 20, 2015). 

Further, we have described the standard within § 2244(b)(2)(B) as 

"demanding." Bible v. Schriro, 651 F.3d 1060, 1063 (9th Cir. 2011). And we

generally have been skeptical of assertions that the underlying factual predicate could

not have been discovered earlier through the exercise of due diligence when a

significant amount of time has passed between the first petition and the successive

petition. Id. at 1064; see also Landrigan v. Trujillo, 623 F.3d 1253, 1256–57 (9th Cir.

2010) (doubting that the applicant was diligent when he waited six years to request

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DNA testing after the state adopted a statute permitting DNA testing). Here,

McDowell waited a significant amount of time before filing either of his successive

habeas petitions (more than nine years), and his claims do not satisfy the demanding

standard within § 2244(b)(2)(B)(i). 

III

Because McDowell's current ineffective assistance of counsel claim based on

his trial counsel’s failure to investigate his mental and medical conditions was

presented in his initial petition, and his other claims are founded upon the same factual

predicate of the claims raised in his initial habeas petition—diminished mental

capacity—the district court properly dismissed his successive petition. 

AFFIRMED. 

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