                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         July 25, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    M AR VIN TILLETT,

             Petitioner,

    v.                                                    No. 06-9543
                                                       (No. A 34-496-797)
    JOE BOOKER, W arden, FM C                         (Petition for Review)
    Lexington, K Y ; D EPA RTM EN T OF
    H O ME LA N D SEC UR ITY ;
    IM M IG RA TIO N &
    NA TURALIZATION SERVICE,

             Respondents.



                             OR D ER AND JUDGM ENT *


Before M U RPH Y, EBEL, and O’BRIEN, Circuit Judges.




         This case was originally filed in October 2005 in the United States District

Court for the Eastern District of Kentucky as a petition for a writ of habeas

corpus challenging a final order of deportation issued by the Board of


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Immigration Appeals (BIA) in 1994. The district court dismissed the habeas

petition for lack of jurisdiction holding that the REAL ID Act of 2005 (RIDA)

“clearly deprived this Court of jurisdiction over the petitioner’s claims by

amending the judicial review provisions of section 242 of the Immigration and

Nationality Act, to make a petition for review in the federal courts of appeals the

sole means of review of a final immigration order of removal, deportation, or

exclusion.” Tillett v. Booker, No. Civ.A.05-CV-406-JM H, 2005 W L 2736740, at

*2 (E.D. Ky. Oct. 24, 2005) (quotation omitted). M r. Tillett appealed the district

court’s decision to the United States Court of Appeals for the Sixth Circuit.

      On April 23, 2006, the Sixth Circuit issued an order affirming the district

court’s dismissal. The Sixth Circuit, however, construed M r. Tillett’s habeas

petition as a petition for review and decided to transfer the case to this court

because this court is the proper venue in which to file the petition for review.

Relying on the transfer provision in 28 U.S.C. § 1631, the Sixth Circuit concluded

that transferring the case to this court would be in the interest of justice. The

Sixth Circuit did note that there was a question as to whether the petition for

review was timely, but stated that this court should decide the timeliness issue.

      On M ay 1, the petition for review was filed in this court. The government

filed a motion to dismiss for lack of jurisdiction because the petition for review

was untimely. M r. Tillett did not file a response to the motion. W e conclude that




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M r. Tillett’s petition for review is untimely and dismiss the case for lack of

jurisdiction.

      Under RIDA, if a 28 U.S.C. § 2241 habeas case challenging a final order of

removal was pending in the district court as of M ay 11, 2005, that case must be

transferred to the court of appeals and treated as a petition for review. See RID A ,

Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005), reprinted in 8 U.S.C.

§ 1252 note. Cases transferred under this provision are not subject to the

jurisdictional thirty-day time limit to file a petition for review , which is set forth

in 8 U.S.C. § 1252(b)(1). See id.; M edellin-Reyes v. Gonzales, 435 F.3d 721, 723

(7th Cir. 2006). As the Seventh Circuit explained:

      [A]ll collateral proceedings pending on M ay 11, 2005, when the Real
      ID Act took effect, and transferred to courts of appeals under
      § 106(c), must be treated as timely petitions for review, no matter
      how long it has been since the Board rendered its decision.
      Collateral proceedings filed on or after M ay 11 . . . will be dismissed
      outright; the window for belated judicial review has closed.

 Id. at 723-24.

      M r. Tillett is not eligible to benefit from RIDA’s exception to the

thirty-day time limit for filing a petition for review. M r. Tillett’s petition for

review was transferred pursuant to 28 U.S.C. § 1631, not the transfer provision in

§ 106(c) of RIDA. The Sixth Circuit could not transfer the petition for review

pursuant to RIDA because M r. Tillett’s habeas petition was filed after M ay 11,

2005. RIDA’s transfer provision is only applicable to habeas petitions pending in



                                           -3-
a district court as of M ay 11, 2005. See RIDA § 106(c); Chen v. Gonzales, 435

F.3d 788, 790 (7th Cir. 2006). As a result, M r. Tillett’s case remains subject to

8 U.S.C. § 1252(b)(1), which requires that “[t]he petition for review must be filed

not later than 30 days after the date of the final order of removal.” M r. Tillett’s

final order of removal was entered on October 27, 1994. The petition for review

is therefore untimely and this court lacks jurisdiction to consider it. See

Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003).

      The petition for review is DISM ISSED and petitioner’s motion for release

is D ENIED as moot.

                                                      Entered for the Court
                                                      Per Curiam




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