Richard Phillips v. Dave Davey

ORDER and MEMORANDUM

Petitioner Richard Phillips appeals from the district court’s order dismissing his habeas corpus petition and declining to issue a certificate of appealability (Case Number 15-16361). He also requests permission to file a second or successive habe-as petition if we affirm the district court’s order (Case Number 15-72096). We review de novo the district court’s order concluding that Phillips’s habeas petition is second or successive. United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm the district court’s order and deny Phillips’s request to file a second or successive habeas petition.

Phillips argues that he filed his habeas petition under 28 U.S.C. § 2241 , not § 2254, and, therefore, according to him, his petition is not second or successive (which would obviate any need for him to secure prior permission from us to file it). Phillips’s argument is founded on the incorrect premise that he has no judgment of conviction against him; but his convictions remain intact. See Phillips v. Vasquez, 56 F.3d 1030 ,1033 n.l (9th Cir. 1995) (holding that “a conviction for murder is a final…