Maki v. Baker, 3:20-cv-00274

Petitioner Charles Maki filed a federal habeas petition under 28 U.S.C. § 2254; the Court ordered him to show cause why the case should not be dismissed as an unauthorized second or successive petition and to pay a $5.00 filing fee.
Maki filed a motion to show cause but did not pay the filing fee within the allotted time; the Court dismissed the action on that basis.
The Court reviewed Maki’s motion on the merits despite the fee default. Maki argued the Court had incorrectly dismissed his earlier petition, Maki v. Grigas, for failure to keep his mailing address current.
The Court explained that the Grigas dismissal (without prejudice) does not resolve the second-or-successive question; a later federal petition was rendered untimely (in Maki v. Legrand), and an untimely § 2254 petition makes later petitions second or successive.
Maki sought Ninth Circuit authorization to file a second or successive petition but the Court of Appeals did not authorize it (Maki v. Baca). The Court therefore lacked jurisdiction to consider his claims; Maki’s assertions of merit and actual innocence must be presented to the Ninth Circuit in an authorization application.
The Court denied a certificate of appealability, directed entry of judgment, added the Nevada Attorney General as counsel for respondents, and closed the case.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Dismissal for failure to pay filing fee	Maki filed a motion to show cause; implied that case should proceed despite fee issue	Maki failed to pay required $5.00 fee within time	Court dismissed for failure to pay fee
Whether petition is unauthorized second or successive	Grigas dismissal was wrongful, so current petition should be allowed	Legrand was untimely, making later petitions second or successive; Maki lacked Ninth Circuit authorization	Court held the petition was an unauthorized second or successive petition and dismissed
Effect of prior dismissal (Grigas) on successive-petition analysis	Grigas dismissal was without prejudice and should not bar this petition	Even if Grigas was dismissed, a later federal petition (Legrand) was untimely, which triggers § 2244(b) treatment	Court held Grigas’ dismissal did not cure the jurisdictional problem produced by Legrand’s untimeliness
Actual innocence / merits as an exception to authorization requirement	Maki argues actual innocence and merits warrant consideration	Such arguments must be raised in an application to the Ninth Circuit for authorization	Court held those arguments must be presented to the Ninth Circuit; without authorization, it lacked jurisdiction

Duncan v. Walker, 533 U.S. 167 (2001) (a federal habeas petition does not toll the one-year limitation under § 2244(d)(2))
McNabb v. Yates, 576 F.3d 1028 (9th Cir. 2009) (an untimely § 2254 petition renders subsequent § 2254 petitions “second or successive”)