United States District Court, D. Hawaii
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
Oki Mollway, United States District Judge.
the court is Petitioner Christopher Slavick's petition
for writ of habeas corpus brought pursuant to 28 U.S.C.
§ 2254 (“Petition”). Pet., ECF No. 1.
Slavick challenges the legality of the sentence imposed in
State v. Slavick, Cr. No. 04-1-1534 (Haw. 1st Cir.
Feb. 15, 2013).
court has screened the Petition pursuant to Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts (“Habeas Rule 4”), and finds that
it is second or successive and must be dismissed for lack of
the necessary certification. See 28 U.S.C. §
2244(a). The Petition is DISMISSED without prejudice pursuant
to 28 U.S.C. § 2244(b)(2), and is referred to the Ninth
Circuit Court of Appeals. See Ninth Circuit Rule
22-3. Any request for a certificate of appealability is
DENIED. Slavick's informal request to proceed in forma
pauperis, see Pet., PageID #16, is DENIED as moot.
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) “restricts the power of federal
courts to award relief to state prisoners who file second or
successive habeas corpus applications.” Tyler v.
Cain, 533 U.S. 656, 661 (2001) (citing 28 U.S.C. §
2244(b)(1)). A petition is second or successive if it
challenges “the same custody imposed by the same
judgment of a state court” as a previous federal habeas
petition. Burton v. Steward, 549 U.S. 147, 153
2244 first instructs courts to dismiss any claim
“presented in a second or successive habeas corpus
application” that the petitioner “presented in a
prior application.” 28 U.S.C. § 2244(b)(1).
claims that are presented in a second or successive habeas
corpus petition must also be dismissed unless one of two
(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 due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2)(A)-(B)(ii). “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.” 28 U.S.C.
§ 2244(b)(3)(A). A petitioner's failure to obtain
authorization from the circuit court to proceed with a
successive petition is jurisdictional. Rishor v.
Ferguson, 822 F.3d 482, 490 (9th Cir. 2016).
February 15, 2013, Slavick was convicted in the Circuit Court
of the First Circuit, State of Hawaii (“circuit
court”), of Promoting a Harmful Drug in the First
Degree, in violation of Hawaii Revised Statutes
(“HRS”) § 712-1244(1)(a), a class A felony.
See State v. Slavick, Cr. No. 04-1-1534 (Haw. 1st
circuit court sentenced Slavick to an indeterminate term of
twenty years. The Hawaii Intermediate Court of Appeals
(“ICA”) affirmed on July 24, 2014; judgment on
appeal was filed September 15, 2014.
October 15, 2015, Slavick filed a habeas corpus petition
pursuant to 28 U.S.C. § 2254 challenging his conviction
in Cr. No. 04-1-1534. See Slavick v. Sequeira, No.
1:15-cv-00424-DKW-KJM (D. Haw. Oct. 15, 2015). Slavick
asserted that his conviction violated his ...