Heinemann v. Murphy

303 F. App'x 619

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 16, 2008
• Docket: 08-8042
• Status: Unpublished

Opinion

ORDER AND JUDGMENT *

MONROE G. McKAY, Circuit Judge.

Petitioner seeks to challenge the district court’s dismissal of his § 2254 petition as an unauthorized “second or successive” habeas petition. Respondents have filed a letter conceding that the instant petition was not a second or successive petition because the prior habeas petition, while raising similar claims, originated from a different conviction. See Hardeman v. Quarterman, 516 F.3d 272, 275-76 (5th Cir.2008) (holding that “ ‘to be considered “successive,” a prisoner’s second petition must, in a broad sense, represent a second attack by federal habeas petition on the same conviction’ ” quoting Vasquez v. Par rott, 318 F.3d 387, 390 (2d Cir.2003)). Therefore, construing Petitioner’s notice of appeal and appellate brief as an implied motion for leave to file a successive petition, see Pease v. Klinger, 115 F.3d 763, 764 (10th Cir.1997), we dismiss the motion as unnecessary and direct the district court to entertain Petitioner’s habeas petition.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.