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Rogers v. State

United States District Court, D. New Hampshire

September 15, 2017

Scott N. Rogers
v.
State of New Hampshire

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE

         Before the court is Scott N. Rogers's petition for writ of habeas corpus (Doc. No. 1), filed pursuant to 28 U.S.C. § 2254, and an addendum to that petition (Doc. No. 6). The matter is here for preliminary review to determine whether the claims raised are facially valid and may proceed. See Rule 4 of the Rules Governing Section 2254 cases ("§ 2254 Rules"); LR 4.3(d)(4)(A).

         § 2254 Rule 4 Standard

         Pursuant to § 2254 Rule 4, a judge is required to promptly examine any petition for habeas relief, and if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition." Id. "Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994) (citing § 2254 Rule 4)). The court construes Rogers's pleadings liberally, with due consideration for his pro se status. See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).

         Background

         Rogers was convicted of burglary, theft by unauthorized taking, and receiving stolen property, for his involvement in the theft of new televisions from a hotel under construction. The New Hampshire Supreme Court affirmed the convictions. See State v. Rogers, No. 2010-0515, 2013 WL 11998270, at *2 (N.H. June 11, 2013) .

         Beginning in 2013 and concluding with post-judgment motions filed in 2016, Rogers fully litigated a § 2254 petition previously in the District of New Hampshire challenging the same state convictions and sentences at issue in the instant petition.[1] Respondent moved for summary judgment on that prior § 2254 petition, and the district judge granted that motion and denied a certificate of appealability. See Rogers v. Gerry, No. 13-cv-322-LM (D.N.H.) ("Rogers I"), 2014 U.S. Dist. LEXIS 167941, at *1, 2014 WL 6883086, at *1 (D.N.H. Dec. 4, 2014), approving R&R, 2014 U.S. Dist. LEXIS 167939, at *10, 2014 WL 6883086, at *4 (D.N.H. Nov. 4, 2014) .

         Rogers filed another federal habeas petition in 2016. See Rogers v. N.H. State Prison Warden, No. 16-cv-388-LM (D.N.H.) ("Rogers II"). The court dismissed that case upon finding it to be a successive petition, pursuant to 28 U.S.C. § 2244(b). See Rogers II, 2017 U.S. Dist. LEXIS 16362, at *1 (D.N.H. Feb. 3, 2017), approving R&R, 2016 U.S. Dist. LEXIS 183737, 2016 WL 8732635 (D.N.H. Dec. 16, 2016) (D.N.H. Dec. 16, 2016) .

         Claims

         Liberally construed, the instant § 2254 petition (Doc. No. 1) asserts the following double jeopardy claim as grounds for relief under 28 U.S.C. § 2254:

Rogers was charged with, convicted of, and subjected to consecutive sentences for the theft and receipt of stolen property, with respect to the same televisions, subjecting him to multiple punishment for the same offense.

         Discussion

         I. Successive Petition

         The instant petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). As explained in the ...


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