United States District Court, D. Montana, Helena Division
L. Christensen, Chief Judge United States District Court.
25, 2017, Petitioner Shawn Kevin Smaage sought a writ of
habeas corpus under 28 U.S.C. §2254. Mr. Smaage is a
state prisoner proceeding pro se.
October 27, 2017, Magistrate Judge Johnston entered Findings
and Recommendations advising this Court Mr. Smaage's
petition should be dismissed with prejudice because the
claims Smaage advanced were not cognizable in federal habeas.
(Doc. 7.) On November 8, 2017, Smaage filed an objection to
the Magistrate Judge's recommendation. (Doc. 9.) On
November 28, 2017, this Court entered an Order adopting the
Magistrate Judge's Findings and Recommendations in full.
(Doc. 10); see also (Doc. 11)(judgment entered 11/28/17.)
days after the entry of judgment, this Court received
Smaage's Motion to Dismiss Prior Habeas Petition and
Motion to File an Amended Brief. (Docs. 13 & 14.) On
December 1, 2017, the Court received a Motion to Appoint
Counsel. (Doc. 12.) Although Smaage's Motion to Dismiss
and Motion to Appoint Counsel are not dated, the Motion to
File Amended Brief is dated November 27, 2017. Accordingly,
the Court will treat all the documents as if they were filed
on November 27, 2017, prior to this Court's entry of
judgment dismissing Smaage's petition, and address the
merits of his motions.
Motion to Dismiss/Motion to Amend
already had the opportunity to present his claims to the
Court and to lodge his objections to the Magistrate
Judge's Findings and Recommendations. This Court
addressed the merits of Smaage's petition and deemed the
claims were not cognizable in federal habeas. Because Smaage
has had the opportunity to fully litigate his petition, the
Court lacks jurisdiction to hear any claims that Smaage now
wishes to present. 28 U.S.C. § 2244(b)(1).
claim in a second or successive petition must be dismissed
even if not presented in a prior habeas petition, unless the
claim rests on new law, new evidence, or Petitioner's
actual innocence. 28 U.S.C. § 2244(b)(2). Even in the
latter circumstance, leave of the Court of Appeals is
required to maintain the successive petition. 28 U.S.C.
§ 2244(b)(3). Accordingly, Smaage is required to raise
his grounds for making a second or successive petition before
the Ninth Circuit, in a motion for leave to file a second or
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). Until Smaage obtains leave from the
Ninth Circuit Court of Appeals to file a successive habeas
petition, this Court has no jurisdiction to hear his claims.
Burton v. Stewart, 549 U.S. 147, 149 (2007)(per
Motion to Appoint Counsel
must be appointed "when the case is so complex that due
process violations will occur absent the presence of counsel,
" Bonin v. Vasquez, 999 F.2d 425, 428-29 (9th
Cir. l993)(discussing Chaney v. Lewis, 801 F.2d
1191, 1196 (9th Cir. l986)(per curiam)), or when an
evidentiary hearing is required. Rule 8(c), Rules Governing
§ 2254 Cases. Counsel may be appointed at any stage of
the proceedings if "the interests of justice so
require." 18 U.S.C. § 3006A(a)(2)(B). Under §
3 006A, the court must consider the likelihood of success on
the merits, the complexity of the legal issues involved, and
the petitioner's ability to articulate his claims pro se.
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)
this Court is without jurisdiction to allow Smaage to refile
and relitigate his habeas claims, Smaage cannot make the
requisite showing of necessity for the appointment of
counsel. At this juncture, Smaage's request is moot.
Should he receive authorization to file a second or
successive habeas petition from the Ninth Circuit, Smaage may
renew his request for counsel at that time.
on the foregoing, the Court enters the following:
Smaage's Motion to Dismiss Prior Habeas Petition (Doc.
13) and Motion to File Amended Brief (Doc. 14) ...