United States District Court, W.D. Washington, Tacoma
TONY J. JACKSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER GRANTING PETITIONER'S MOTION FOR
RECONSIDERATION, VACATING JUDGMENT, AND RENOTING
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Petitioner Tony
Jackson's (“Jackson”) motion for
reconsideration. Dkt. 17.
January 14, 2019, the Court dismissed Jackson's petition
for lack of jurisdiction because the Court deemed it a second
or successive petition. Dkt. 14. The factual predicate for
Jackson's claim is his co-defendant's plea bargain,
which did not occur until after Jackson's first petition
became final. Id.
February 7, 2019, Jackson filed the instant motion arguing
that his petition is a second-in-time petition because the
factual predicate of the claim did not occur until after his
first petition was denied. Dkt. 17. On April 2, 2019, the
Court requested a response from the Government. Dkt. 19. On
April 12, 2019, the Government responded. Dkt. 20. On April
22, 2019, Jackson replied. Dkt. 21.
the Ninth Circuit has held that “[p]risoners may file
second-in-time petitions based on events that do not occur
until a first petition is concluded, ” it seemed that
the exception only applied to certain specific issues.
United States v. Buenrostro, 638 F.3d 720, 725 (9th
Cir. 2011) (“petitions relating to denial of parole,
revocation of a suspended sentence, and the like because such
claims were not ripe for adjudication at the conclusion of
the prisoner's first federal habeas proceeding.”)
(citing multiple authorities). However, in Brown v.
Muniz, 889 F.3d 661, 667 (9th Cir. 2018), cert.
denied sub nom. Brown v. Hatton, 139 S.Ct. 841 (2019),
the Ninth Circuit cited Buenrostro for the broad
proposition that a petition is not “second or
successive if the factual predicate for the claim accrued
only after the time of the initial petition.” 889 F.3d
at 667 (citing Buenrostro, 638 F.3d at 725-26).
case, Jackson has established that the factual predicate for
his claim did not accrue until after the district court
denied his first petition. Thus, reconsideration is
warranted. The Government, however, argues that even a
“second-in-time” petition requires certification
by the Ninth Circuit. Dkt. 20 at 2-3 (citing
Buenrostro, 638 F.3d at 723). The Court disagrees.
“[T]he term ‘second or successive' is not to
be taken literally but is ‘informed by' the
abuse-of-the-writ doctrine.” Buenrostro, 638
F.3d at 723 (quoting United States v. Lopez, 577
F.3d 1053, 1063 n.8 (9th Cir. 2009), cert. denied,
559 U.S. 984 (2010)). That doctrine precluded review of a
claim “if the petitioner had a full and fair
opportunity to raise the claim in the prior application . . .
.” Magwood v. Patterson, 561 U.S. 320, 345
(2010) (Kennedy, J., dissenting). Petitioners do not have
such an opportunity “where the claim was not yet ripe
at the time of the first petition . . . .” Id.
(citing Panetti v. Quarterman, 551 U.S. 930, 947
(2007)). Under this definition or interpretation of
“second or successive, ” a second-in-time
petition based on a factual predicate that occurred after the
denial of a first petition is not a second or successive
petition. Therefore, the Court concludes that Jackson's
petition is not a second or successive petition.
the Government disputes the Court's reluctance to
transfer a second or successive petition to the Ninth Circuit
per Circuit Rule 22-3(a). To further clarify the Court's
position, that rule is not intended for petitions in which
the parties dispute whether it is a second or successive
petition. To resolve such a dispute, the Court must make a
legal determination subject to de novo review and
consider issuing a certificate of appealability. See
Richey v. Obenland, C13-5231 BHS, 2013 WL 4054589, at *1
(W.D. Wash. Aug. 12, 2013), vacated and remanded sub nom.
Richey v. Sinclair, 585 Fed.Appx. 636 (9th Cir. 2014).
Therefore, the Court declines to transfer any disputed second
or successive petition.
Jackson has established a manifest error of law in the
Court's prior order. Local Rules W.D. Wash. LCR 7(h)(1).
The Court GRANTS Jackson's motion and
VACATES the prior order and judgment, Dkts.
14, 15. Although the Government provided some substantive
response, it may file an additional substantive response no
later than June 28, 2019. Jackson may reply no later than
July 19, 2019. The Clerk shall note Jackson's petition
for consideration on the Court's July 19, 2019 calendar.