Jackie Gregg v. Brian Belleque

395 F. App'x 332

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 3, 2010
• Docket: 09-35600
• Status: Unpublished

Opinion

MEMORANDUM **

Oregon state prisoner Jackie Richard Gregg appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as second or successive. We have jurisdiction under 28 U.S.C. § 2258, and we affirm.

Relying on the “legitimate excuse” doctrine, Gregg contends that his petition is not second or successive within the meaning of the Antiterrorism and Effective Death Penalty Act because Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), had not been decided at the at the time he filed his previous habeas petition. Because Gregg neither sought nor received authorization from this court before filing the instant petition, the district court was without jurisdiction to consider it. See 28 U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 152-54, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007).

To the extent Burton is applying for an order authorizing a second or successive petition, such request is denied. See Cook v. United States, 386 F.3d 949, 950 (9th Cir.2004) (denying an application for a second or successive § 2255 motion because “the Supreme Court has not made Blakely retroactive to cases on collateral review”).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.