Michael Wayne Seawright v. Director of the California Department of Corrections and Rehabilitation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL WAYNE SEAWRIGHT,
Petitioner - Appellant,
v.
DIRECTOR OF THE CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
Respondent - Appellee.
No. 07-56202
D.C. No. CV-06-08273-CBM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted December 7, 2010
Pasadena, California
Before: PREGERSON, CLIFTON, and BEA, Circuit Judges.
California state prisoner Michael Wayne Seawright (“Seawright”) appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his
conviction for his part in the 1983 first degree murder of Catherine Stroup.
FILED
JAN 05 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Despite the fact that Seawright’s due process claim was unexhausted, the
district court had jurisdiction to deny Seawright’s petition on the merits. 28 U.S.C.
§ 2254(b)(2).
2
Seawright’s petition alleged that the state trial court violated his due process rights
when it did not allow him to present defense evidence that the crime was
committed by Catherine’s husband, James Stroup Sr. The district court dismissed
Seawright’s habeas petition because it found it to be a second or successive
petition. We affirm.
This court has held that a habeas petition is second or successive if it raises
claims that were or could have been adjudicated on the merits. See Woods v.
Carey, 525 F.3d 886, 888 (9th Cir. 2008). Seawright’s current petition is a second
or successive petition because the district court had previously dismissed
Seawright’s similar petition on the merits with prejudice. On appeal, this court
found that Seawright failed to exhaust his due process claim in state courts.
However, this court stated that it “affirmed” the judgment of the district court.1
Seawright contends this court mistakenly stated that it “affirmed” the
judgment of the district court. Yet, Seawright never filed a rehearing petition or
otherwise appealed this court’s affirmance of the district court’s judgment. Thus,
because the time to challenge this court’s 2002 decision had long since lapsed, he
cannot collaterally attack that judgment on this appeal.

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3
Seawright was required to obtain authorization from this court to file a
second or successive petition. 28 U.S.C. § 2244(b)(3)(A). Seawright did not
receive such authorization. Hence, the district court properly dismissed
Seawright’s current petition.
AFFIRMED

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Searight v. Director of CDC, No. 07-56202
PREGERSON, Circuit Judge, specially concurring:
Another panel of this court previously decided Seawright’s appeal of his
first habeas petition and concluded that Seawright had failed to exhaust his federal
claims in state court. Seawright v. Terhune, 42 F. App’x 945, 946 (9th Cir. 2002).
Even though the panel did not reach the merits of Seawright’s habeas petition,
oddly the panel “affirmed” the district court’s judgment, id., which denied
Seawright’s habeas petition on the merits and dismissed it with prejudice.
While this court is permitted to affirm the district court’s judgment of the
unexhausted claim on the merits pursuant to 28 U.S.C. § 2254(b)(2), it is not clear
from the previous panel’s memorandum disposition that this is what the panel
actually intended. Thus, it is our court that may have made a fatal mistake. But
because Seawright’s attorney did not file a petition for panel rehearing and the
mandate issued long ago, the judgment of the previous panel unfortunately stands.
FILED
JAN 05 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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