United States District Court, D. Hawaii
ORDER TRANSFERRING SECOND OR SUCCESSIVE PETITION AND
DENYING MOTION FOR APPOINTMENT OF COUNSEL
Derrick K. Watson District Judge.
the court is Derrick Smith’s petition for writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254.
Pet., Doc. No. 1. Smith challenges his August 23, 2004
judgment of conviction and sentence in the Circuit Court of
the First Circuit, State of Hawaii (“circuit
court”). See State v. Smith, FC-Cr. No.
(Hawai`i State Judiciary’s Public Access to Court
Information, (“Ho`ohiki”)) (last visited
2006, Smith unsuccessfully challenged his state criminal
conviction in FC-Cr. No. 03-1-0027 in this court pursuant to
28 U.S.C. § 2254. See Smith v. Hawaii, Civ. No.
06-00618 SOM/KSC (D. Haw. 2006). In this earlier petition,
Smith alleged that the circuit court erred by: (1) admitting
Smith’s statement, made seven weeks before his
son’s death, “Do you want me to drop that baby
over the balcony?” (Ground One); (2) allowing
Smith’s full-length photograph to be introduced at
trial (Ground Two); and (3) permitting the prosecutor to use
PowerPoint slides during opening statement and closing
argument that contained allegedly inappropriate text, a
photograph of Smith’s newborn son, autopsy photographs
of the baby, and Smith’s full-length photograph (Ground
Three). See Civ. No. 06-00618, Am. Pet., Doc. No. 7;
see also Findings and Recommendation to Deny the
Amended Petition, Doc. No. 21.
15, 2007, the magistrate judge found that Grounds One and
Three were without merit, and Ground Two was procedurally
barred, and recommended denying the Petition in its entirety
and dismissing with prejudice. Id., Doc. No. 21,
PageID #1101. Smith did not file objections.
26, 2007, District Judge Susan Oki Mollway adopted the
Findings and Recommendations. Doc. No. 23. Smith appealed,
and Judge Mollway granted a certificate of appealability.
Doc. Nos. 26, 29.
December 19, 2008, the Ninth Circuit Court of Appeals
affirmed. App. No. 07-16319; see also Civ. No.
06-00618, Doc. No. 39. On October 5, 2009, the United States
Supreme Court denied certiorari. Civ. No. 06-00618, Doc. No.
2010, Smith challenged his conviction and sentence in the
state court pursuant to Rule 40 of the Hawaii Rules of Penal
Procedure. See Smith v. State, 1:PR-10-1-000007
(S.P.P. No. 10-1-0007). Smith alleged he had received
ineffective assistance of trial counsel. The Intermediate
Court of Appeals (“ICA”) affirmed the circuit
court’s order denying the post-conviction petition.
Id.; see also Smith v. State, No.
CAAP-14-0000737, 2015 WL 1959256, at *7 (Haw. App. April 30,
2015). The Hawaii Supreme Court rejected certiorari on August
7, 2015. See id., 2015 WL 4724937, at *1.
filed the present Petition on May 23, 2016. Civ. No.
16-00261, Doc. No. 1. He raises one claim for relief: that
his trial counsel was ineffective for failing to contact an
expert witness, John Plunkett, M.D., to rebut the
State’s expert witness, Dr. Kanthe Von Guenther,
to filing a second or successive petition 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.” 28 U.S.C.
§ 2244(b)(3)(A) (emphasis added). The appellate court
“shall” dismiss claims that were presented in a
prior petition. 28 U.S.C. § 2244(b)(1); Magwood v.
Patterson, 561 U.S. 320, 330 (2010). The appellate court
may authorize claims that were never presented in a prior
petition if -
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B)(I) the factual predicate for the claim could not have
been discovered previously through the exercise of ...