Palomarez v. Young et al
Filing
3
MEMORANDUM OPINION AND ORDER of Dismissal by District Judge Robert C. Brack dismissing without prejudice for lack of jurisdiction 1 Petition for 2254 Relief; A certificate of appealability is denied. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALEXANDER PALOMAREZ,
Petitioner,
v.
No. 18-CV-00298-RB-SMV
DARIN YOUNG, Warden,
MARTY JACKLEY, Attorney General,
Respondents.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER is before the Court, pursuant to Rules 4 and 11 of the Rules
Governing Section 2254 Cases In The United States District Courts, on Petitioner
Alexander Palomarez’s “Petition for Relief” filed on March 20, 2018. (Doc. 1.) Petitioner
asks the Court to vacate his South Dakota criminal conviction and sentence because the
United States District Court for the District of South Dakota has denied him relief on his
prior and pending petitions for writs of habeas corpus under 28 U.S.C. § 2254, even
though he has “exculpatory evidence to prove actual innocence.” (Id. at 3; see also Doc.
2.) For the reasons explained below, Petitioner’s “Petition for Relief” will be construed as
a petition for writ of habeas corpus under 28 U.S.C. § 2254 and will be dismissed without
prejudice for lack of jurisdiction.
The “sole federal remedy” for a prisoner who challenges “the very fact or duration
of his physical imprisonment” and seeks “a determination that he is entitled to immediate
release or a speedier release from that imprisonment” is a petition for writ of habeas
corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A petition for writ of habeas
corpus under 28 U.S.C. § 2254 “is the proper avenue for attacking the validity of a [state]
conviction and sentence.” Yellowbear v. Wyo. Attorney Gen., 525 F.3d 921, 924 (10th
Cir. 2008). Therefore, the Court liberally will construe Petitioner’s “Petition for Relief”
as a petition for writ of habeas corpus under 28 U.S.C. § 2254. 1
This is not the first time that Petitioner has challenged his South Dakota
conviction and sentence via a petition for writ of habeas corpus under 28 U.S.C. § 2254.
On October 6, 2017, Petitioner filed a § 2254 petition in this Court challenging his South
Dakota conviction and sentence, which the Court transferred to the United States District
Court for the District of South Dakota on February 28, 2018. See Palomarez v. Young,
17-CV-01026-JCH-KBM, Doc. 20 (D.N.M. Feb. 28, 2018); see also St. Louis Baptist
Temple, Inc. v. Fed. Deposit Ins. Co., 605 F.2d 1169, 1172 (10th Cir. 1979) (noting that
“federal courts, in appropriate circumstances, may take notice of proceedings in other
courts, both within and without the federal judicial system, if those proceedings have a
direct relation to matters at issue”). Additionally, the record reflects that Petitioner has
filed two prior § 2254 petitions in the United States District Court for the District of
1
Ordinarily, when a district court recharacterizes a pro se pleading as a first § 2254 petition, the
Court must “notify the pro se litigant that it intends to recharacterize the pleading, warn the
litigant that this recharacterization means that any subsequent [§ 2254] motion will be subject to
the restrictions on ‘second or successive’ motions, and provide the litigant an opportunity to
withdraw the motion or to amend it so that it contains all the [§ 2254] claims he believes he has.”
Castro v. United States, 540 U.S. 375, 383 (2003). This restriction does not apply, however,
where the petitioner previously filed a § 2254 petition, because “if the prisoner has filed once,
any future motion will be subject to the same constraints whether it is the second [§ 2254]
motion or a third.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). As explained
in the body of this opinion, this is not Petitioner’s first § 2254 petition and, therefore, the Court
need not provide Petitioner with notice and an opportunity to amend or withdraw his pro se
pleading prior to recharacterization.
2
South Dakota challenging the same South Dakota conviction and sentence. (Doc. 2 at 6
(noting that Petitioner’s first § 2254 petition was dismissed based on the doctrine of
procedural default, and his second § 2254 petition was pending dismissal for lack of
jurisdiction); see also Palomarez v. Young, CIV 15-5007-JLV (D.S.D. 2016); Palomarez
v. Young, CIV 17-5070 (D.S.D. 2017).)
This is Petitioner’s fourth § 2254 petition, but he has not received permission from
the appropriate United States Court of Appeals to file a “second or successive” § 2254
petition under 28 U.S.C. § 2244(b)(3)(A) (“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.”). “A district court does not have jurisdiction to address the merits of a
second or successive § 2255 or 28 U.S.C. § 2254 claim until [the United States Court of
Appeals] has granted the required authorization.” In re Cline, 531 F.3d 1249, 1251 (10th
Cir. 2008). “When a second or successive § 2254 or § 2255 claim is filed in the district
court without the required authorization from [the Court of Appeals], the district court
may transfer the matter to [the Court of Appeals] if it determines it is in the interest of
justice do so under [28 U.S.C.] § 1631, or it may dismiss the motion or petition for lack
of jurisdiction.” Id.
Factors considered in deciding whether a transfer is in the
interest of justice include whether the claims would be time
barred if filed anew in the proper forum, whether the claims
alleged are likely to have merit, and whether the claims were
filed in good faith or if, on the other hand, it was clear at the
time of filing that the court lacked the requisite jurisdiction.
3
Id. Furthermore, “[w]here there is no risk that a meritorious successive claim will be lost
absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is
not in the interest of justice to transfer the matter to [the Court of Appeals] for
authorization.” Id. at 1252. To be meritorious, a second or successive § 2254 petition
must be based on: (1) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable”; or (2) a factual
predicate that “could not have been discovered previously through the exercise of due
diligence” and “the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. § 2244(b)(1)(i)–(ii).
The Court concludes that Petitioner’s § 2254 petition lacks merit, because it is not
based on a new rule of constitutional law, and although Petitioner alleges that he is
actually innocent of the crime of which he was convicted and that he has the exculpatory
evidence to prove his innocence, he fails to identify what this exculpatory evidence is,
explain why it could not have been discovered earlier through the exercise of due
diligence, and link it to a constitutional error at trial. See Case v. Hatch, 731 F.3d 1015,
1037 (10th Cir. 2013) (noting that a “freestanding innocence claim under the Supreme
Court’s decision in Herrera cannot be brought in a successive petition governed by §
2244(b)(2)(B)(ii)” because the statute “requires a linkage between constitutional error at
trial and a potential constitutional violation”). Because there is no risk that a meritorious
second or successive claim will be lost, the Court declines to transfer this case to the
4
United States Court of Appeals and, instead, will dismiss Petitioner’s second or
successive § 2254 petition without prejudice for lack of jurisdiction.
In a habeas proceeding, “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the
Rules Governing Section 2254 Cases In The United States District Courts. To be entitled
to a certificate of appealability, Petitioner must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s resolution of
his constitutional claims or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Reasonable jurists could not debate the Court’s conclusion that Petitioner’s §
2254 petition is a second or successive petition over which this Court lacks jurisdiction
and, therefore, a certificate of appealability will be denied.
IT IS THEREFORE ORDERED that Petitioner’s “Petition for Relief” (Doc. 1),
which the Court construes as a petition for writ of habeas corpus under 28 U.S.C. § 2254,
is DISMISSED without prejudice for lack of jurisdiction, a certificate of appealability is
DENIED, and judgment will be entered.
___________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?