Heinemann v. Murphy , 303 F. App'x 619 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
December 16, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ANTHONY HEINEMANN,
Petitioner-Appellant,
v. No. 08-8042
(D.C. No. 08-CV-00072-WFD)
MICHAEL MURPHY, in his official (D. Wyo.)
capacity as Wyoming Department of
Corrections State Penitentiary Warden;
BRUCE A. SALZBURG, in his
official capacity as Wyoming Attorney
General,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
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 Hardemon v. Quarterman, 516 F.3d
*
This order and judgment is not binding precedent, except under the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.
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. Parrott, 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.
Entered for the Court
Monroe G. McKay
Circuit Judge
-2-