United States District Court, D. Hawaii
A. OTAKE UNITED STATES DISTRICT JUDGE
the Court is pro se Petitioner Francis Grandinetti's
pleading entitled: “AEDPA Federal Law, on Stay
Application.” ECF No. 1. Because Grandinetti is a
Hawaii state prisoner and apparently seeks release from
custody, the Court construes the pleading as a Petition for
Writ of Habeas Corpus Under 28 U.S.C. § 2254
(“Petition”). Grandinetti seeks relief based on
his assertion that the Prison Litigation Reform Act
(“PLRA”) and the Anti-terrorism and Effective
Death Penalty Act (“AEDPA”) are unconstitutional.
See id., PageID #1. Grandinetti attaches two recent
Hawaii Supreme Court decisions denying his petitions for writ
of mandamus and habeas relief, various prison medical and
other requests, copies of envelopes, and letters as exhibits
to the Petition.
28 U.S.C. § 2254
of the Rules Governing § 2254 Cases in the United States
District Courts (“Habeas Rules”) requires the
court to make a preliminary review of each petition for writ
of habeas corpus. The court must summarily dismiss a petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court.” Habeas Rule 4;
O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990); see also Hendricks v. Vasquez, 908 F.2d 490
(9th Cir. 1990).
extent Grandinetti alleges that he should be released because
AEDPA is unconstitutional, his Petition is DISMISSED.
Grandinetti unsuccessfully challenged his 1994 conviction in
Grandinetti v. State, Civ. No. 05-00254 DAE (D. Haw.
2005) (dismissing petition with prejudice as time-barred). He
may not challenge his conviction or sentence again, until he
receives authorization from the appropriate court of appeals
allowing the district court to consider his second or
successive application. See Burton v. Stewart, 549
U.S. 147, 152-53 (2007) (citing 28 U.S.C. §
2244(b)(3)(A)). This provision “creates a
‘gatekeeping' mechanism for the consideration of
second or successive applications in district court.”
Felker v. Turpin, 518 U.S. 651, 657 (1996). A
district court lacks jurisdiction to consider the merits of a
second or successive habeas petition in the absence of proper
authorization from a court of appeals. Cooper v.
Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per
curiam) (citing United States v. Allen, 157 F.3d
661, 664 (9th Cir. 1998)). Nothing within Grandinetti's
documents suggests that he challenges the revocation of
parole or probation, to which he might raise a habeas claim
for relief that would not require appellate authorization as
second or successive. This Court therefore lacks jurisdiction
to consider the Petition.
Grandinetti's allegation that the AEDPA is
unconstitutional, is wholly frivolous and cannot entitle him
to habeas relief. See Felker, 518 U.S. at 661-62
(holding AEDPA does not act as “suspension of the
Writ”); Duhaime v. Ducharme, 200 F.3d 597, 601
(9th Cir. 2000) (holding “§ 2254(d)(1) does not
suffer from any Article III constitutional
infirmities”); Crater v. Galaza, 491 F.3d
1119, 1125-26 (finding AEDPA modifies preconditions for
habeas relief but does not remove the courts'
jurisdiction over habeas petitions).
Petition is DISMISSED without prejudice until he obtains
authorization from the United States Court of Appeals for the
Ninth Circuit to proceed in this court. To the extent a
certificate of appealability is required, it is DENIED.
42 U.S.C. § 1983
has accrued three strikes under 28 U.S.C. § 1915(g),
may have labeled this pleading as seeking habeas relief to
avoid the penalties imposed on his filings by 28 U.S.C.
§ 1915(g). See Andrews v. King, 398 F.3d 1113,
1122-23, n.12 (9th Cir. 2005) (recognizing that some habeas
petitions are civil rights actions mislabeled as habeas
petitions to avoid § 1915(g)'s penalties)
(“Andrews I”). Grandinetti may not bring
a civil action without complete prepayment of the filing fee,
however, unless he plausibly alleges that he was in imminent
danger of serious physical injury at the time he filed his
pleading. See id.; Andrews v. Cervantes,
493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews
extent Grandinetti asserts a cause of action under §
1983, based on his allegation that the PLRA is
unconstitutional, he alleges no facts showing that he is in
imminent danger of serious physical injury and this claim is
frivolous. See Taylor v. Delatoore, 281 F.3d 844,
848 (9th Cir. 2002). Grandinetti may not proceed in forma
pauperis in this action if he is alleging claims under §
extent Grandinetti seeks habeas relief, his Petition is
DISMISSED without prejudice for lack of jurisdiction. Any
request for a certificate of appealability is DENIED.
extent Grandinetti raises claims under 42 U.S.C. § 1983,