Weiss v. Bosh

Background

Scott Edward Weiss challenged Minnesota criminal convictions for multiple counts of criminal sexual conduct and two counts of kidnapping. He received a 45-year prison sentence. His direct appeal and later state postconviction proceedings did not change the result.

In 2012, Weiss filed an earlier federal petition under 28 U.S.C. § 2254. That petition was denied because it was untimely and because his claims had been procedurally defaulted, meaning he had failed to properly pursue them through the required state-court process. The federal appeals court later denied a certificate of appealability and dismissed the appeal.

Weiss filed the current action on November 1, 2021, again challenging the same state-court judgment. Magistrate Judge Elizabeth Cowan Wright recommended dismissal and denial of a certificate of appealability because Weiss had not obtained authorization from the federal appeals court to file a second or successive habeas petition.

Second or successive petition

The court explained that a habeas petition is second or successive when it challenges the same judgment and raises claims that were, or could have been, decided in an earlier federal habeas proceeding. Before filing such a petition in the district court, the petitioner must obtain authorization from the appropriate federal appeals court. That authorization requirement is jurisdictional, meaning the district court cannot consider the petition without it.

The court held that Weiss’s current petition was second or successive. It reasoned that his earlier petition had been denied for untimeliness and procedural default, and treated both grounds as adjudications on the merits for purposes of the successive-petition rule. The court stated that it did not appear Weiss had sought or received the required authorization.

Weiss argued that the earlier petition had been dismissed without prejudice. The court rejected that argument, explaining that Weiss was conflating the denial of his earlier habeas petition with the separate denial, without prejudice, of his request for appointed counsel during the appeal of that earlier case.

Rulings

The court did not address Weiss’s other objections because they were not necessary to resolve the case. It stated that it agreed with the magistrate judge’s conclusions that Weiss had brought repeated collateral attacks on his conviction and sentence and had not complied with Local Rule 9.3, but those issues were not dispositive.

The court overruled Weiss’s objections and adopted the report and recommendation in its entirety. It denied as moot Weiss’s application to proceed without prepaying fees and costs. It also denied Weiss’s motion for a certificate of appealability, concluding that reasonable jurists could not disagree with the court’s assessment of his arguments.