Opinion
No. CIV S-06-1764 FCD CMK P.
August 22, 2006
ORDER
Petitioner, Donato Estrada, filed a pro se federal habeas corpus petition pursuant to 28 U.S.C. § 2254 in this court on August 10, 2006.
Mr. Estrada filed a previous federal habeas corpus application with this Court on February 28, 2002. Estrada v. Terhune, No. Civ. S02-0440 WBS JFM. The petition was denied on the merits on August 16, 2004, and on January 1, 2006, the Ninth Circuit affirmed the judgment. Because Mr. Estrada filed a previous federal habeas corpus application that was denied on the merits, the application filed on August 10, 2006 is a "successive habeas corpus application" within the meaning of 28 U.S.C. § 2244. Before filing such a petition, "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
Because Mr. Estrada has not been granted leave by the Ninth Circuit to file a second or successive habeas corpus application, this Court lacks jurisdiction to entertain the November 30, 2005 application. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001); Nuñez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Accordingly, this action shall be transferred, pursuant to 28 U.S.C. § 1631, to the Ninth Circuit Court of Appeals. See United States v. Barrett, 178 F.3d 34, 41 n. 1 (1st Cir. 1999);Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997);Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996).
IT IS SO ORDERED.