Smith v. Hill
- Charles Breyer
- 3:20-cv-03235
- U.S. District Court · Northern District of California
- 1
In Andre Smith v. Rick Hill, Judge Breyer dismissed Smith’s second conviction challenge without prejudice and granted his request to proceed without paying filing fees.
Andre Smith’s second petition was dismissed without prejudice because he had not obtained the required Ninth Circuit authorization. His fee-waiver application was granted; Rick Hill was named as the respondent.
What happened
Andre Smith, a state prisoner, filed a second petition challenging his Alameda County conviction and sentence. His first petition had been denied as untimely.
Federal law required Smith to obtain permission from the Ninth Circuit before filing a second petition of this kind. Because he had not obtained that permission, the district court dismissed the petition without prejudice to refiling if he later receives the required authorization.
Judge Charles R. Breyer granted Smith’s request to proceed without paying filing fees based on his affidavit of poverty. The clerk was directed to close the case and terminate pending motions as moot.
The detailed version
- Smith v. Hill · No. 3:20-cv-03235
- Charles Breyer
- May 14, 2020
Background
Andre Smith, a state prisoner incarcerated at Folsom State Prison, filed a second or successive petition under 28 U.S.C. § 2254 challenging a judgment of conviction and sentence from Alameda County Superior Court. The opinion states that Smith’s first petition was denied as untimely under 28 U.S.C. § 2244(d) on July 30, 2013.
Reason for dismissal
Under 28 U.S.C. § 2244(b)(3)(A), a second or successive petition could not be filed in the district court unless Smith first obtained an order from the Ninth Circuit authorizing the district court to consider it. The court found that Smith had not obtained that authorization. It therefore dismissed the petition without prejudice to refiling if he obtains the required order.
Other rulings and disposition
The court granted Smith’s application to proceed without paying the filing fee based solely on his affidavit of poverty. It directed the clerk to close the file and terminate all pending motions as moot. Judge Charles R. Breyer entered the order on May 14, 2020.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.