Jackie Gregg v. Brian Belleque

FILED
NOT FOR PUBLICATION SEP 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JACKIE RICHARD GREGG, No. 09-35600
Petitioner - Appellant, D.C. No. 1:07-cv-00984-OMP
v.
MEMORANDUM *
BRIAN BELLEQUE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted August 23, 2010 **
Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges.
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. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 (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 (2007).
To the extent Burton is applying for an order authorizing a second or
successive petition, such request is denied. See United States v. Cook, 386 F.3d
949, 950 (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.
2 09-35600