Elven Swisher v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 12, 2018
• Docket: 17-35451
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 12 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELVEN JOE SWISHER, No. 17-35451

Petitioner-Appellant, D.C. Nos.: 1:09-cv-00055-BLW 1:07-cr-00182-BLW-1 v.

UNITED STATES OF AMERICA, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Submitted August 30, 2018** Seattle, Washington

Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.

Elven Swisher appeals the district court’s denial, on remand, of his motion

for a new trial on three remaining counts after this court, in United States v.

Swisher, 811 F.3d 299 (9th Cir. 2016), invalidated his conviction under the Stolen

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We grant the Motion to Take Judicial Notice, filed March 21, 2018 (Dkt. # 28). Valor Act, 18 U.S.C. § 704(a). Swisher argues that spillover from his now-vacated

Stolen Valor Act conviction prejudiced his trial on the remaining counts of false

statement (18 U.S.C. § 1001) and theft of government funds (18 U.S.C. § 641).

We lack jurisdiction to hear the appeal. Swisher’s release from prison does

not deprive this court of jurisdiction under 28 U.S.C. § 2255(a) because Swisher

filed his petition while in custody. Carafas v. LaVallee, 391 U.S. 234, 238–39

(1968). Nor does Swisher’s release render his petition moot. Because Swisher has

not yet paid restitution in full, he continues to suffer “some ‘collateral

consequence’ of the conviction.” Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also

Cent. Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531, 1537 (9th Cir. 1993)

(“Pecuniary injury is clearly ‘a sufficient basis for standing.’”). However, we lack

jurisdiction over Swisher’s present claims because he failed to raise them in his

original habeas petition.

A petitioner must seek certification from a panel of the court of appeals in

order to file a second or successive habeas petition. 28 U.S.C. § 2255(h). “A

petition for review of a new claim that could have been raised earlier may be

treated as the functional equivalent of a second or successive petition for a writ of

habeas corpus.” Allen v. Ornoski, 435 F.3d 946, 957 (9th Cir. 2006). This principle

has been applied when a new claim is raised in a motion. See Calderon v.

2 Thompson, 523 U.S. 538, 553 (1998) (motion to recall mandate); Thompson v.

Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (60(b) motion).

Here, Swisher did not raise his prejudicial spillover or retroactive misjoinder

claims in his habeas petition. Instead, he raised them for the first time on remand to

the district court in a “Motion for a New Trial”. This motion is the functional

equivalent of a second or successive petition, which requires authorization from

this court before filing in the district court. Allen, 435 F.3d at 957. “A petitioner’s

failure to seek such authorization from the appropriate appellate court before filing

a second or successive habeas petition acts as a jurisdictional bar.” Rishor v.

Ferguson, 822 F.3d 482, 490 (9th Cir. 2016). Accordingly, this court lacks

jurisdiction.

DISMISSED for lack of jurisdiction.