United States District Court, D. Hawaii
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
the court is Marshall Martinez's petition for writ of
habeas corpus brought pursuant to 28 U.S.C. § 2241.
Martinez challenges the legality of his sentence in State
v. Martinez, Cr. No. 7716(2) (Haw. 2d Cir. 1988).
Martinez alleges that his sentence was improperly enhanced
based on his “Alford plea” in State v.
Martinez, Cr. No. 0000-104149 (Ariz. Super. Ct. 1979).
recently asserted this argument in Martinez v.
State, Civ. No. 17-00184 JMS-RLP (D. Haw. 2017), in
which he sought habeas relief pursuant to 28 U.S.C. §
2254. That action was dismissed without prejudice and
referred to the Ninth Circuit Court of Appeals because
Martinez did not have appellate authorization to proceed with
an apparent second or successive petition. See id.,
ECF No. 4. The Ninth Circuit thereafter denied Martinez's
application for authorization to file a second or successive
28 U.S.C. § 2254 habeas corpus petition. Id.,
ECF No. 6; App. No. 17-72457 (9th Cir. Apr. 19, 2018).
may not pursue this challenge to his state sentence under 28
U.S.C. § 2241, and the Petition is DISMISSED. Even if
the Court construes the Petition as brought pursuant to 28
U.S.C. § 2254, it may not review the Petition until
Martinez has authorization from the Ninth Circuit Court of
Appeals to proceed with a second or successive petition, and
the Ninth Circuit has already denied a substantively
identical request. Any request for a certificate of
appealability is DENIED.
says that, in denying his application to proceed with a
second or successive petition under § 2244(b), the Ninth
Circuit held that he “is subject to . . . [a] violation
created [under] § 2244(c).” See Pet., ECF
No. 1. He asserts that this statement authorizes him to
challenge his sentence under 28 U.S.C. § 2241.
Martinez is in custody pursuant to a state court judgment.
Thus, 28 U.S.C. § 2254, rather than 28 U.S.C. §
2241, applies to his challenge to his sentence. See White
v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004) (holding
that § 2241 “is properly understood as a general
grant of habeas authority that provides federal court
jurisdiction to a state prisoner when that prisoner is
not in custody pursuant to a ‘state court
judgment'”) (emphasis added), overruled on
other grounds, Hayward v. Marshall, 603 F.3d 546 (9th
Cir. 2010). Because Martinez is in custody pursuant to a
state court judgment, however, “28 U.S.C. § 2254
is the proper jurisdictional basis for his habeas
the Ninth Circuit's Order denying Martinez's
application to proceed with a second or successive petition
did not state that there was a “violation created [b]
§ 2244(c)” or that he could challenge his sentence
under § 2241. See Martinez v. Thomas, No.
17-72457 (9th Cir. 2018).
Martinez has previously challenged his conviction and
sentence under § 2254, and that petition was dismissed
with prejudice on the merits. See Martinez v.
Sumner, Civ. No. 89-00770 ACK (D. Haw. 1992) (dismissing
petition on merits); see also Martinez v. State,
Civ. No. 17-00184 JMS (D. Haw. 2017) (dismissing petition and
transferring it to appellate court); Martinez v.
State, Civ. No. 08-00388 JMS (D. Haw. 2008)
(transferring petition to appellate court and attaching
copies of earlier petitions to Order); Martinez v.
Penarosa, Civ. No. 96-01208 ACK (D. Haw. 1997)
(dismissing petition as second or successive). This Court is
without jurisdiction to consider the present Petition without
appellate authorization. See 28 U.S.C. §
2244(b)(3)(A); Rishor v. Ferguson, 822 F.3d 482, 490
(9th Cir. 2016) (holding failure to obtain appellate
authorization for successive petition is jurisdictional).
Martinez has long argued that the state court improperly
relied on his Alford plea when it enhanced his
sentence in Cr. No. 7716(2). See, e.g., Martinez
v. Sumner, Civ. No. 89-00770, Order at 16
(“Petitioner asserts that . . . [a] prior conviction .
. . was obtained by means of an Alford
plea.”); see also Civ. No. 96-01208 ACK
(arguing Alford plea claim); Civ. No. 08-00388 JMS
(same). Martinez's Alford plea claim is not new
nor does it rely on newly discovered evidence.
Court is without jurisdiction to consider the Petition
without authorization from the Ninth Circuit. See 28
U.S.C. § 2244(b)(3)(A); Rishor, 822 F.3d at
490. This action is DISMISSED without prejudice for lack of
jurisdiction pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the U.S. District Courts.
Clerk shall send a copy of the Petition and a copy of this
Order to the Clerk of the U.S. Court of Appeals for the Ninth
Circuit. The Clerk shall also provide Martinez with the form
recommended by the Ninth Circuit for filing an Application
for Leave to File Second or Successive Petition Under 28
U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.
of reason would” not “find it debatable”
that this court lacks jurisdiction over this Petition without
authorization from the Ninth Circuit. Slack v.
McDaniel,529 U.S. 473, 484 (2000). ...