                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 03 2010

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




                            FOR THE NINTH CIRCUIT



JACKIE RICHARD GREGG,                            No. 09-35600

               Petitioner - Appellant,           D.C. No. 1:07-cv-00984-OMP

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                            Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       Oregon state prisoner Jackie Richard Gregg appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 petition as second or successive. We

have jurisdiction under 28 U.S.C. § 2253, 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).
      Relying on the “legitimate excuse” doctrine, Gregg contends that his petition

is not second or successive within the meaning of the Antiterrorism and Effective

Death Penalty Act because Blakely v. Washington, 542 U.S. 296 (2004), had not

been decided at the at the time he filed his previous habeas petition. Because

Gregg neither sought nor received authorization from this court before filing the

instant petition, the district court was without jurisdiction to consider it. See 28

U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 152-54 (2007).

      To the extent Burton is applying for an order authorizing a second or

successive petition, such request is denied. See United States v. Cook, 386 F.3d

949, 950 (2004) (denying an application for a second or successive § 2255 motion

because “the Supreme Court has not made Blakely retroactive to cases on collateral

review”).

      AFFIRMED.




                                            2                                    09-35600
