                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 15 2017

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BYRON LEROY SCOTT,                               No.   13-55950

              Petitioner-Appellant,              D.C. No. 5:13-cv-00703-R

 v.
                                                 MEMORANDUM*
STATE OF CALIFORNIA,

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                          Submitted February 14, 2017**

Before:      GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

      Byron Leroy Scott appeals from the district court’s judgment dismissing his

28 U.S.C. § 2254 habeas petition as an unauthorized second or successive petition.

Scott contends that the district court erred because his Eighth Amendment

challenge to his sentence did not become ripe until the Supreme Court announced

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
its decision in Miller v. Alabama, 132 S. Ct. 2455 (2012). He requests, in the

alternative, that this court treat his opening brief as an application to file a second

or successive habeas petition under 28 U.S.C. § 2244(b). We grant this request.

         Scott’s opening brief, treated as an application for authorization, makes a

prima facie showing under section 2244(b)(2)(A), and is granted. See Montgomery

v. Louisiana, 136 S. Ct. 718 (2016); Woratzeck v. Stewart, 118 F.3d 648, 650 (9th

Cir. 1997).

         The Clerk shall transfer Scott’s opening brief (Docket Entry No. 16), to the

United States District Court for the Central District of California, to be processed

as a section 2254 habeas petition. The petition shall be deemed filed in the district

court on September 29, 2014, the date the opening brief was filed in this court. See

Orona v. United States, 826 F.3d 1196 (9th Cir. 2016).

         Because we grant the alternative request for authorization, the appeal has

been rendered moot and we do not address the certified issue raised on appeal. We

leave it to the district court to address the merits of Scott’s claim and the effect, if

any, of Scott’s proceedings under California Penal Code section 1170(d)(2) on his

claim.

         All pending motions are denied as moot.

         GRANTED.


                                             2                                     13-55950
