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 Rogers's motion for a new trial (Doc.
No. 3), which clarifies the nature of his claims and the
relief Rogers seeks in this case. 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). The court construes Rogers's
pleadings liberally, in light of 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. See
State v. Rogers, No. 2010-0515, 2013 WL 11998270 (N.H.
June 11, 2013). 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. See Rogers v. Gerry, No. 13-cv-322-LM
(D.N.H.), 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).
instant petition is subject to the restriction on
“second or successive” habeas petitions. Such
petition cannot be litigated in district court without the
permission of the federal court of appeals. See 28 U.S.C.
§ 2244(b)(2); Magwood v. Patterson, 561 U.S.
320, 330-31 (2010) (“If an application is ‘second
or successive,' the petitioner must obtain leave from the
court of appeals before filing it with the district
court.” (citing 28 U.S.C. § 2244(b)(3)(A)). A
habeas petition filed in the district court without the
appellate court's permission is subject to dismissal.
See Magwood, 561 U.S. at 331.
has not obtained the First Circuit's permission to file
this successive petition. Therefore, this court lacks
jurisdiction to consider it. Accordingly, the district judge
should dismiss this petition, for lack of jurisdiction,
pursuant to 28 U.S.C. § 2244(b)(3)(A). Rogers is free to
apply in the First Circuit for permission to file a similar
§ 2254 petition in this court, pursuant to 28 U.S.C.
§ 2244(b)(3)(A) and First Circuit Local Rule 22.1.
Relief Not Cognizable in a Federal Habeas Action
seeks relief in the instant § 2254 petition that is
generally not available in § 2254 actions, including a
claim for damages to compensate Rogers for time spent in
state prison. This court expresses no opinion regarding
whether such claims could proceed in a separate action filed
under 42 U.S.C. § 1983.
Certificate of Appealability
Rules Governing Section 2254 Proceedings (“§ 2254
Rules”) require the court to “issue or deny a
certificate of appealability [“COA”] when it
enters a final order adverse to the party.” § 2254
Rule 11(a). Here, the grounds for dismissal are purely
procedural, and not substantive.
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.
Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Reasonable jurists would not find it debatable that the
instant petition is an unauthorized “successive”
petition that is subject to dismissal. Accordingly, the
district judge should decline to ...