ANDERSON v. WILLIAMS (2018)

MEMORANDUM *

ORDER

The district court dismissed Nevada state prisoner Anthony Anderson’s petition for a writ of habeas corpus as successive. Anderson appealed that dismissal and filed an original application for leave to file a successive claim. We consolidated the proceedings and have jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 2244. We affirm the district court in the appeal; we deny the application.

We consider the appeal first. Anderson’s opening brief raised two issues: (1) whether the district court erred by dismissing his third habeas petition as “second or successive” under the Antiterrorism and Effective Death Penalty Act of 1996; and (2) whether we affirmatively misled Anderson into believing that his third petition would be considered on the merits. But in his reply brief and at oral argument, Anderson pursued a new theory of relief: that his first petition was not a petition for a writ of habeas corpus at all. Anderson asserts that, because his first pro se filing was not a habeas petition, his third petition cannot have been successive.

Anderson did not distinctively raise this argument in his opening brief, so it is waived or forfeited. Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003). We may exercise discretion to consider the argument because it was discussed in the answering brief. See id. But, even were we to do so, it would not change the outcome because Anderson’s first petition was a habeas petition. It was formally labeled as such both on the typed form Anderson used and in his handwritten addition, and in substance it challenged the validity of Anderson’s conviction.

The arguments that Anderson did raise in his opening brief fail on the merits. First, district courts are not required to counsel habeas petitioners about the consequences of a ruling on the merits of their petitions. See Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants”). The district court that considered Anderson’s first petition thus did not err such that the first petition would not count as a habeas petition for purposes of the “second or successive” bar. Cf. Castro v. United States, 540 U.S. 375, 377, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (“[A] recharacterized motion will not count as a § 2255 motion for purposes of applying § 2255’s ‘second or successive’ provision”). To the extent that Anderson now seeks relief because his first petition should have been dismissed as mixed, Anderson “cannot evade the rules governing successive petitions by seeking to relitigate the earlier dismissal.” Henderson v. Lampert, 396 F.3d 1049, 1054 (9th Cir. 2005).

Second, equitable relief for a judicial mistake is available only when a mistake has actually been made. See Ford v. Pliler, 590 F.3d 782, 788 (9th Cir. 2009) (“In order to show that he was affirmatively misled, Ford needed to point to some inaccuracy in the district court’s instructions”). Here, there was no mistake. We did not state that Anderson definitely could bring a third habeas petition when we denied a certificate of appealability for the dismissal of his second petition. We stated only that our denial “d[id] not preclude him” from filing another petition. That was correct; the 2015 denial did not prevent Anderson from bringing another petition. We therefore affirm the district court in the appeal.

In the application, we may authorize a successive petition only if Anderson makes a prima facie showing that he could not have discovered the factual predicate of his claims earlier, and that the new facts show that no reasonable factfinder would have found him guilty of the underlying offense but for constitutional error. 28 U.S.C. § 2244(b)(2)(B), (b)(3)(C). Anderson’s application fails in both respects. He does not point to any new evidence that “could not have been discovered previously,” nor does he point to any new facts that show his conviction could not have occurred but for constitutional error. We therefore deny the application.

The district court’s judgment in appeal 17-15265 is AFFIRMED. Application 17-70203 is DENIED.