Smaage v. Fender et al

Filing 15

ORDER finding as moot 12 Motion to Appoint Counsel ; denying 13 Motion to Dismiss; denying 14 Motion to File. Signed by Judge Dana L. Christensen on 1/31/2018. Mailed to Smaage (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
SHAWN KEVIN SMAAGE,
Petitioner,
ORDER

vs.
DOUGLAS FENDER; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

On May 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 prose.
On 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. 1 l)Gudgment entered 11/28/17.)
Two 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

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& 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. 1

i.

Motion to Dismiss/Motion to Amend

Smaage 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)(l).
A new 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

1

See Houston v. Lack, 487 U.S. 266, 276 (1988)(pro se habeas petitioner's document deemed
filed on the date of submission to prison authorities for mailing, as opposed to the date of its
receipt by the clerk of court).

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raise his grounds for making a second or successive petition before the Ninth
Circuit, in a motion for leave to file a second or successive petition.
"Before 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 curiam).
ii.

Motion to Appoint Counsel

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. 1993)(discussing Chaney v. Lewis, 801F.2d1191, 1196 (9th
Cir. 1986)(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§ 3006A, 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 prose. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam).
Because this Court is without jurisdiction to allow Smaage to refile and
relitigate his habeas claims, Smaage cannot make the requisite showing of
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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.
Based on the foregoing, the Court enters the following:
ORDER

1. Mr. Smaage's Motion to Dismiss Prior Habeas Petition (Doc. 13) and
Motion to File Amended Brief (Doc. 14) are DENIED for lack of jurisdiction.
2. Mr. Smaage's Motion to Appoint Counsel is DENIED as moot.
3. The Clerk of Court is directed to refile the judgment in the docket as of
the date of this order to avoid confusion should Smaage choose to file an appeal.
DATED this

3( ,1:-day of January,

Dana L. Christensen, Chief Judge
United States District Court

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