                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 16, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 ANTHONY HEINEMANN,

              Petitioner-Appellant,

 v.                                                     No. 08-8042
                                                (D.C. No. 08-CV-00072-WFD)
 MICHAEL MURPHY, in his official                          (D. Wyo.)
 capacity as Wyoming Department of
 Corrections State Penitentiary Warden;
 BRUCE A. SALZBURG, in his
 official capacity as Wyoming Attorney
 General,

              Respondents-Appellees.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.


      Petitioner seeks to challenge the district court’s dismissal of his § 2254

petition as an unauthorized “second or successive” habeas petition. Respondents

have filed a letter conceding that the instant petition was not a second or

successive petition because the prior habeas petition, while raising similar claims,

originated from a different conviction. See Hardemon v. Quarterman, 516 F.3d


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
272, 275-76 (5th Cir. 2008) (holding that “‘to be considered “successive,” a

prisoner’s second petition must, in a broad sense, represent a second attack by

federal habeas petition on the same conviction’” (quoting Vasquez v. Parrott, 318

F.3d 387, 390 (2d Cir. 2003)). Therefore, construing Petitioner’s notice of appeal

and appellate brief as an implied motion for leave to file a successive petition, see

Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997), we dismiss the motion as

unnecessary and direct the district court to entertain Petitioner’s habeas petition.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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