Palmer v. Alaska Governor et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JAMES DION PALMER,
Petitioner,
vs.
ALASKA GOVERNOR, et al.,
Respondents.
No. 4:20-cv-00029-JKS
ORDER OF DISMISSAL
On July 28, 2020, James Dion Palmer filed a pro se Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 (“Petition”). Docket No. 1. Palmer does not list the criminal docket or
case number that he seeks to challenge, but states that he is subject to a judgment of conviction
entered on July 23, 2020, for failure to register as a sex offender. Id. at 1. Although he lists the
Alaska Fairbanks Jail as his place of confinement, the return address of his filing is a
correctional facility in Virginia, and the Offender Locator database of the Virginia Department
of Corrections, https://vadoc.virginia.gov/general-public/offender-locator/, Offender I.D.#
1136645, reflects that Palmer is in the custody of the Virginia Department of Corrections and
incarcerated at the Greensville Correctional Center in Jarratt, Virginia, with a projected release
date of August 13, 2020.1
1 When Palmer filed his initial habeas petition in this Court, discussed infra, the
Offender Locator Database indicated that Palmer’s projected release date was July 23, 2020.
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Pursuant to the Rules Governing Section 2254 Cases, the Court must review the instant
Petition to determine whether “it plainly appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254
Cases, Rule 4. If so, “the judge must dismiss the petition.” Id. A petition for habeas corpus
should not be dismissed without leave to amend unless it appears that no tenable claim for relief
can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
The Court has reviewed the Petition and determined that it cannot proceed as filed.
Accordingly, as discussed below, the Court will dismiss the petition.
A. 	The Petition Does Not Identify an Alaska Conviction
28 U.S.C. § 2254 allows prisoners being held under state court judgments to challenge
those judgments once they have been finalized. 28 U.S.C. § 2254(a) (stating that petitions will
be entertained from “a person in custody pursuant to the judgment of a state court . . . .”). For
the Court to exercise jurisdiction in a § 2254 petition, the petitioner must be “in custody” under
the sentence or conviction he is challenging in his petition. See, e.g., Maleng v. Cook, 490 U.S.
488, 492 (1989).
As noted above, Palmer is currently in the custody of the Virginia Department of
Corrections. The court takes judicial notice2 that Palmer previously challenged a conviction in
Virginia state court by way of filing a § 2254 petition in the Eastern District of Virginia. See
Palmer v. Johnson, Case No. 1:02-cv-01762-CMH (E.D. Va.). The Fourth Circuit Court of
Appeals affirmed the dismissal of that petition. Palmer v. Johnson, No. 03-7178, 82 F. App’x
854 (4th Cir. 2003). A review of the Virginia Judiciary’s Online Case Information System 2.0,
Case No. 3:20-cv-00138-JKS, Docket No. 3 at 1. It appears that Palmer is referring to his
already-passed projected release date as the “date of conviction.” See Docket No. 1 at 1.
2 Judicial notice is the “court’s acceptance, for purposes of convenience and
without requiring a party’s proof, of a well-known and indisputable fact; the court’s power to
accept such a fact.” BLACK ’ S LAW DICTIONARY (10th ed. 2014); see also Headwaters Inc. v.
U.S. Forest Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from a proceeding in
another tribunal are appropriate for judicial notice.”); see also FED . R. EVID . 201.
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https://eapps.courts.state.va.us/ocis/search, shows that Palmer has been the subject of numerous
charges in the Norfolk Circuit Court in Virginia for failure to register as a sex offender.
The Court also takes judicial notice of its own docket and notes that Palmer previously
filed in this Court a substantially similar petition that was dismissed for failure to identify an
Alaska conviction after Palmer was given an opportunity to amend the petition and correct the
deficiency.3 Palmer v. Governor of Alaska, et al., No. 3:20-cv-00138-JKS. In its dismissal
order, the Court advised Palmer that, to the extent he attempts to use this forum to challenge his
Virginia conviction and custody, a § 2254 must be brought in the state with actual custody over
the petitioner. Marks v. Rees, 715 F.2d 372, 374 (7th Cir. 1983); see Chatman-Bey v.
Thornburgh, 864 F.2d 804, 810 (D.C. Cir. 1988) (en banc) (holding the same in the context of
habeas petitions brought by federal prisoners under 28 U.S.C. § 2241). Palmer has again filed a
petition in this Court that does not allege any connection to Alaska and states facts referring only
to his Virginia conviction.
B. 	The Petition Must Be Dismissed for Lack of Jurisdiction
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) amended 28
U.S.C. § 2244(b) to read, in pertinent part, as follows:
(1) A claim presented in a second or successive habeas corpus application under section
2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section
2254 that was not presented in a prior application shall be dismissed unless –
(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and [¶] (ii) 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
3 In response, Palmer filed a Notice to the Court again challenging his conviction in
the Virginia state courts and providing no facts establishing that he is in custody on a conviction
in Alaska, that he has ever been convicted in a court of this State, or that he has any connection
to Alaska at all. Case No. 3:20-cv-00138-JKS, Docket No. 4.
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underlying offense.
(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.
28 U.S.C. § 2244(b)(1)-(3)(A); see also Rule 9 of the Rules Governing § 2254 Cases in the
United States District Courts.
AEDPA “greatly restricts the power of federal courts to award relief to state prisoners
who file second or successive habeas corpus applications.” Tyler v. Cain, 533 U.S. 656, 661
(2001). AEDPA “creates a ‘gatekeeping’ mechanism for the consideration of second or
successive applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also
Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Second or successive habeas petitions
are subject to the “extremely stringent” requirements of AEDPA. Babbitt v. Woodford, 177 F.3d
744, 745 (9th Cir. 1999).
“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). Second or successive
habeas petitions filed in the district court without an authorizing order from the court of appeals
shall be dismissed. See 28 U.S.C. § 2244(b); see also Burton v. Stewart, 549 U.S. 147, 153
(2007) (where petitioner neither sought nor received authorization from Court of Appeals before
filing second or successive petition, district court should have dismissed petition for lack of
jurisdiction). “‘When the AEDPA is in play, the district court may not, in the absence of proper
authorization from the court of appeals, consider a second or successive habeas application.’”
Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (quoting Libby v. Magnusson, 177
F.3d 43, 46 (1st Cir. 1999)).
As noted above, Palmer recently filed a substantially similar habeas petition in this Court.
Palmer v. Governor of Alaska, et al., No. 3:20-cv-00138-JKS. Although that petition was
initially dismissed with leave to amend to establish an Alaska conviction, id. at Docket No. 3, it
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was subsequently dismissed as incurable after Palmer was unable to demonstrate that he was
subject to an Alaska conviction or that he had any connection to this state, id. at 5, 6. Palmer
now challenges through the Fairbanks courthouse of this Court the same Virginia state court
judgment that was at issue in his habeas petition that was filed through the Anchorage
courthouse. Under AEDPA, Palmer was required to obtain an order from the Ninth Circuit
Court of Appeals authorizing the Court to consider his claims prior to filing this case. Because
he did not do so, this Court is without jurisdiction to entertain the instant Petition. Burton, 549
U.S. at 153; see also 28 U.S.C. § 2244(b)(3)(A). Accordingly, the Court finds that the Petition is
an unauthorized second or successive petition over which this Court lacks jurisdiction.
Generally, an unauthorized second or successive petition is dismissed without prejudice
and with leave to re-file in the event the petitioner obtains authorization from the Ninth Circuit
Court of Appeals. Here, however, there is a readily-apparent and non-rectifiable defect that
would render any further pursuit by Palmer in this Court, or indeed this Circuit, futile and
inappropriate. Accordingly, the dismissal of this action with prejudice is required.
As noted above, the records of the U.S. federal courts indicates that Palmer previously
challenged a conviction in Virginia state court by way of filing a § 2254 petition in the Eastern
District of Virginia. See Palmer v. Johnson, Case No. 1:02-cv-01762-CMH (E.D. Va.). The
Fourth Circuit Court of Appeals affirmed the dismissal of that petition. Palmer v. Johnson, No.
03-7178, 82 F. App’x 854 (4th Cir. 2003). In the instant Petition, Palmer again challenges that
conviction by averring that there was “no sexual penetration and no ejaculation” such that the
evidence was legally insufficient to sustain his rape conviction. Docket No. 1 at 7. To the extent
he wishes to raise new challenges as to that Virginia rape conviction that he did not assert in his
2002 petition in the Eastern District of Virginia, he must obtain from the Fourth Circuit Court of
Appeals authorization to file a second or successive § 2254 petition in the Eastern District of
Virginia. Filing additional petitions in Alaska or the Ninth Circuit Court of Appeals would be
futile and inappropriate.
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IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] 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.’” (quoting Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003))). Any further request for a Certificate of Appealability
must be addressed to the Ninth Circuit Court of Appeals. See FED . R. APP . P. 22(b); 9TH CIR . R.
22-1.
Dated at Anchorage, Alaska this 14th day of August, 2020.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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