                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 11 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 08-50161

               Plaintiff - Appellee,              D.C. No. 2:88-cr-00983-TJH

  v.
                                                  MEMORANDUM *
DARNELL GARCIA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Terry J. Hatter, Jr., District Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       California state prisoner Darnell Garcia appeals pro se from the district

court’s judgment dismissing his habeas petition. We have jurisdiction under 28

U.S.C. § 1291, 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).
      Garcia contends that he has served more time than is necessary because the

district court did not modify his presentence investigation report (“PSR”), or order

a supplemental report, to reflect the sentence reduction that he received on direct

appeal. Garcia’s petition challenges the legality, rather than the execution, of his

sentence, and his claims do not qualify for the savings clause of 28 U.S.C. § 2255,

whereby a prisoner may challenge his sentence in a 28 U.S.C. § 2241 petition. We

therefore construe this appeal as a successive § 2255 motion, which must be

certified by this court before it can be presented to the district court. See Harrison

v. Ollison, 519 F.3d 952, 956, 959-960 (9th Cir. 2008). The district court therefore

lacked jurisdiction to consider this claim. See 28 U.S.C. § 2244(b); see also United

States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998).

      We construe Garcia’s notice of appeal as a request for a certificate of

appealability on the issue of whether his motion was properly dismissed as second

or successive without authorization. So construed, the motion is denied. See 9th

Cir. R. 22-1(d); see also Slack v. McDaniel, 529 U.S. 473, 483-85 (2000).

      AFFIRMED.




                                           2                                    08-50161
