concurring:
I concur in the result reached by the court but respectfully disagree that Mr. Loritz lacks standing to assert his claims. And, I also disagree that Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 820 (9th Cir.2002), provides controlling precedent in this particular case. Mr. Schmier alleged that as an attorney who practices in the courts of the Ninth Circuit and as a beneficially interested citizen with personal concerns about how and when the Ninth Circuit allows precedential use of its opinions, he had standing to seek injunctive relief. I agree with the court that he did not. Obviously, any purported injury suffered by Mr. Schmier was not “fairly traceable” to the challenged action. Envtl. Def. Ctr., Inc. v. EPA 344 F.3d 832, 863 (9th Cir.2003)(quotation omitted). Here, however, Mr. Loritz’s interests are not so remote. He asserts immediate and particularized claims clearly concerned with his own criminal conviction and his continuing incarceration in California prisons.
*993Although Mr. Loritz states, as noted by the court, that his pleadings constitute “a civil suit, not a habeas petition,”1 his operative allegations belie that analysis. He contends that the Ninth Circuit’s publication rule caused him direct injury and harm. Were it not for the erroneous application of the court’s allegedly unconstitutional procedures, he would have and should have been granted habeas relief, Mr. Loritz says. While he “does not show that the outcome of his particular case could have been affected were he able to cite an unpublished disposition,” ante, at 992, Mr. Loritz does allege that the outcome in his earlier habeas appeal would have been different had the Ninth Circuit been required to publish his disposition, because then prior precedent would have dictated a favorable result. This is enough for me. Though his claim may sound frivolous, that is not a basis for finding he has no standing.
Mr. Loritz is clearly seeking to collaterally attack the judgment in his criminal ease, an effort that he has previously undertaken. And he is using the guise of this Rule 36-3 suit to voice his claim. That he surely cannot do in light of 28 U.S.C. § 2244(b)(1) or (2).2
Accordingly, I would remand this matter to the district court with instructions to dismiss the case on that basis.
. Of course, a habeas action is a civil suit. The relief requested, not the subjective procedural intent or beliefs of the plaintiff, govern the nature of the litigation.
. This approach may be Mr. Loritz's creative but disingenuous attempt to avoid the limitations adopted by Congress in the Anti-Terrorism and Effective Death Penalty Act of 1996.