Elven Joe Swisher v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELVEN JOE SWISHER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
No. 17-35451
D.C. Nos.: 1:09-cv-00055-BLW
1:07-cr-00182-BLW-1
MEMORANDUM*
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
FILED
SEP 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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

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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.
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