Wai Chong Leung v. United States

114 F. App'x 850

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2004
• Docket: No. 03-56109
• Status: Published

Opinion

MEMORANDUM

**

Wai Chong Leung appeals pro se the district court’s denial of his 28 U.S.C. § 2241 petition. We lack jurisdiction, and we dismiss.

Although captioned as a habeas petition pursuant to 28 U.S.C. § 2241, this action is properly construed as a § 2255 motion. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir.1998) (“We will not permit a petitioner to circumvent the successive motion bar by bringing a section 2241 petition that would otherwise not require a COA.”). As such, it requires a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(B). Petitioner has not obtained a COA, and cannot, as he filed his successive motion without first receiving authorization to do so from this court. See Porter, 244 F.3d at 1007. Accordingly, we dismiss for lack of jurisdiction. See United States v. Mikels, 236 F.3d 550, 551 (9th Cir.2001); United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998).

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.