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Slavick v. Harrington

United States District Court, D. Hawaii

May 4, 2018

CHRISTOPHER SLAVICK, #A0765881, Petitioner,
v.
SCOTT HARRINGTON, Respondent.

          ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan Oki Mollway, United States District Judge.

         Before 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).

         The 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.

         I. LEGAL STANDARD

         The 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 (2007).

         Section 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).

         New claims that are presented in a second or successive habeas corpus petition must also be dismissed unless one of two exceptions applies:

(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 unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(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).

         II. BACKGROUND[1]

         On 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 Cir. 2013); http://hoohiki.courts.hawaii.gov/#/search. The circuit court sentenced Slavick to an indeterminate term of twenty years.[2] The Hawaii Intermediate Court of Appeals (“ICA”) affirmed on July 24, 2014; judgment on appeal was filed September 15, 2014.

         On 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 ...


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