92
Stevens, J., dissenting
ground that the Tennessee Supreme Court's new Rule 39 demonstrated that the District Court's procedural bar ruling had been based on a mistaken premise.
Relying on Sixth Circuit precedent,5 on November 27, 2001, the District Court entered an order that: (1) characterized the motion as a "second or successive habeas corpus application" governed by 28 U. S. C. § 2244; (2) held that the District Court was therefore without jurisdiction to decide the motion; 6 and (3) transferred the case to the Court of Appeals pursuant to § 1631.7
Petitioner sought review of that order in both the District Court and the Court of Appeals. In the District Court, petitioner filed a notice of appeal and requested a certificate of appealability. See Civil Docket for Case No. 96-CV-380 (MD Tenn., Apr. 23, 1996), App. 11. In the Court of Appeals, petitioner filed the notice of appeal, again sought a certificate of appealability, and moved the court to consolidate the appeal of the District Court's Rule 60(b) ruling with his pre-5 McQueen v. Scroggy, 99 F. 3d 1302, 1335 (CA6 1996) ("We agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition . . .").
6 Title 28 U. S. C. § 2244(b)(ii)(3)(A) provides: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."
7 Section 1631 provides: "Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred." Under Sixth Circuit precedent, a district court presented with a "second or successive" habeas application must transfer it to the Court of Appeals pursuant to that section. See In re Sims, 111 F. 3d 45 (CA6 1997).
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