United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.
District Court has referred this action to United States
Magistrate Judge David W. Christel. Petitioner John Garrett
Smith, proceeding pro se, filed a Petition
(“Second Petition”) requesting the Court declare
the Washington State courts and agencies lacked jurisdiction
to prosecute and convict Petitioner. Dkt. 4. Having reviewed
the Petition under the Rules Governing Section 2254 Cases,
the Court finds Petitioner is not entitled leave to amend and
finds the Second Petition is the “functional
equivalent” of a second or successive petition.
Accordingly, the Court recommends the Petition be dismissed
and all pending Motions be denied as moot.
a prisoner in custody at the Stafford Creek Corrections
Center, filed this Second Petition requesting the Court
declare that Washington State courts and agencies lacked
jurisdiction to prosecute him. Dkt. 4. If this Court were to
declare Washington State courts and agencies lacked
jurisdiction to prosecute him, the Court would essentially
invalidate Petitioner's sentence. Therefore, Petitioner
is requesting relief under habeas corpus. See Preiser v.
Rodriguez, 411 U.S. 475, 503 (1973) (internal quotation
omitted) (“action lying at the core of habeas corpus is
one that goes directly to the constitutionality of the
prisoner's physical confinement itself and seeks either
immediate release from that confinement or the shortening of
its duration. With regard to such actions, habeas corpus is
now considered the prisoner's exclusive remedy.”).
December 6, 2017, Petitioner filed a separate 28 U.S.C.
§ 2254 action challenging his state court conviction and
sentence. See Smith v. Haynes, Case No.
3:17-cv-06019-BHS-DWC (“First Petition”). The
First Petition became ready for the Court's consideration
on May 29, 2018. See id. Petitioner initiated the
Second Petition on March 12, 2018. Dkt. 1.
to Rule 4 of the Rules Governing Section 2254 Cases, the
Court must promptly examine the petition, and “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition.”
“Generally, a new petition is ‘second or
successive' if it raises claims that were or could have
been adjudicated on their merits in an earlier
petition.” Cooper v. Calderon, 274 F.3d 1270,
1273 (9th Cir.2001). The Antiterrorism and Effective Death
Penalty Act (“AEDPA”) implemented a gatekeeper
function, requiring that successive § 2254 petitions be
dismissed unless they meet one of the exceptions outlined in
28 U.S.C. § 2244(b)(2). Even if a petitioner can
demonstrate he qualifies for § 2244(b)(2) exception, he
must seek authorization from the court of appeals before
filing his new petition with the district court. 28 U.S.C.
§ 2244(b)(3); see Woods v. Carey, 525 F.3d 886,
888 (9th Cir. 2008).
when the first petition is still pending in the district
court, a subsequently filed petition is not a “second
or successive petition.” Woods, 525 F.3d at
890. Rather, where a new pro se petition is filed
before the adjudication of a prior petition is complete, the
new petition should be construed as a motion to amend the
pending petition rather than as a successive application.
Id. at 888, 890. The reason for this rule is that in
general “[a] petitioner who seeks to assert new claims
before his first petition has been finally adjudicated is
not, by any stretch, abusing the writ, ” but “is
instead attempting, as the abuse-of-the-writ doctrine
requires, to litigate all available claims in a single
proceeding.” Goodrum v. Busby, 824 F.3d 1188,
1194 (9th Cir. 2016).
Petitioner has not asserted any new claims, nor is he seeking
to have them heard in a single proceeding. However, as
Petitioner's First Petition is still pending, the Court
finds the Second Petition should be construed as a motion to
amend the First Petition.
decision to grant a motion to amend is committed to the sound
discretion of the district court and . . . the district court
may deny that leave where necessary to thwart tactics that
are dilatory, unfairly prejudicial or otherwise
abusive.” Woods, 525 F.3d at 889 (internal
quotations omitted). Equitable principles governing abuse of
the writ of habeas corpus, the application of which
also is in the sound discretion of the district court,
include the principle that a petitioner's “conduct
in relation to the matter at hand may disentitle him to the
relief he seeks.” McCleskey v. Zant, 499 U.S.
467, 484-85 (1991) (quoting Sanders v. United
States, 373 U.S. 1, 17-18 (1963)). The Supreme Court has
expressly stated that “[n]othing in the traditions of
habeas corpus requires the federal courts to tolerate
needless, piecemeal litigation, or to entertain collateral
proceedings whose only purpose is to vex, harass, or
delay.” McCkeskey, supra at 485
(quoting Sanders, 373 U.S. at 18). Thus, “[i]f
a post-conviction motion has the effect of circumventing
these prohibitions against the abuse of the writ, it may be
treated as the functional equivalent of a ‘second or
successive'” habeas corpus petition.
Ching v. United States, 298 F.3d 174, 179-80 (2nd
Cir. 2002) (discussing § 2255 petitions).
Second Petition, Petitioner states the state court does not
have jurisdiction over him. This is a theme he repeats
throughout his First Petition and motions filed related to
his First Petition. The Court finds Petitioner's tactics
in this case -and the now eleven separate actions he has
filed relating to his underlying conviction - have been
vexatious, harassing, and overall abusive of the judicial
process. For example, at this time, Petitioner has filed
twenty-four motions in this matter alone asserting the
illegality of his conviction and demanding immediate relief.
See Dkt. 7, 9-10, 12, 21-27, 29-38, 40-41, 44. He
has also filed numerous other letters and filings asserting
the illegality of his conviction and filed a premature appeal
to the Ninth Circuit. See e.g. Dkt. 11, 13-20, 42.
The Court notes several of his filings are repetitive
addition, the above filings mirror the more than thirty
similar filings Petitioner has submitted in relation to his
First Petition, which assert substantively the same
allegations of illegality and demands for immediate relief.
See Case No. 3:17-cv-06019-BHS-DWC, Dkt. 7-13,
17-19, 22-23, 27, 29-30, 35, 64-70, 72-75, 77-80.
Furthermore, Petitioner filed a third habeas petition in this
Court, which Magistrate Judge Theresa L. Fricke recommended
be dismissed as successive because Petitioner's tactics
have been vexatious, harassing, and overall abusive of the
judicial process. See Smith v. Haynes, Case No.
Petitioner's claim in the Second Petition is duplicative
of the claims alleged in his First Petition, and in light of
the vexatious nature of his filings and the clear abuse of
the judicial process noted herein, the Court finds Petitioner
should not be given leave to amend his First Petition and the
Second Petition should be denied as the “functional
equivalent” of a second or successive petition. See
Ching, 298 F.3d at 179-80.