Opinion
No. 05-16344.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 21, 2007.
Francisco Javier Orozco-Borboa, Safford, AZ, pro se.
Reese V. Bostwick, Esq., USTU-Office of the U.S. Attorney, Evo A. Deconcini, U.S. Courthouse, Tucson, AZ, for Respondents-Appellees.
Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding. D.C. No. CV-05-00231-DCB.
Before: TROTT, W. FLETCHER, and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Federal prisoner Francisco Javier Orozco-Borboa appeals pro se from the district court's judgment dismissing his habeas petition under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 1291.
On January 25, 2007, a motions panel of this court certified for appeal the issue of whether "the district court erred in re-characterizing appellant's 28 U.S.C. § 2241 petition as an initial 28 U.S.C. § 2255 motion." Upon further review of the record, we conclude that the district court did not, in fact, so re-characterize appellant's petition. Hence we vacate the certificate of appealability previously granted. Because we therefore lack subject-matter jurisdiction, we dismiss the appeal. See 28 U.S.C. § 2253(c)(2); Phelps v. Alameda, 366 F.3d 722, 730-31 (9th Cir. 2004).