United States District Court, D. New Hampshire
Scott N. Rogers
State of New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
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
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).
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) .
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. 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) .
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) .
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.
instant petition is subject to the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). As explained in the ...