Brown v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Clinton S. Brown
v. Civil No. 17-cv-030-JD
Michelle Goings, Warden,
Northern New Hampshire
Correctional Facility
REPORT AND RECOMMENDATION
Clinton S. Brown, appearing pro se, has petitioned for a
writ of habeas corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2254,
challenging the sentence imposed by the Sentence Review Board in
2007. The matter is here for preliminary review pursuant to
Rule 4 of the Rules Governing § 2254 Proceedings (“§ 2254
Rules”) and LR 4.3(d)(4).
Second or Successive Petition
This is Brown’s second § 2254 petition filed in this court.
Brown filed his first § 2254 petition in 2015, asserting claims
of constitutional violations relating to Brown’s 2005 trial.
That petition was dismissed by this court as barred by the
statute of limitations. See Brown v. N.N.H. Corr. Facility, No.
1:15-cv-020-LM (D.N.H. July 8, 2015) (ECF No. 6), R&R approved,
No. 1:15-cv-020-LM (D.N.H. July 23, 2015) (ECF No. 8).
This second § 2254 petition asserts claims relating to the
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sentence imposed by Sentence Review Board in 2007. This second-
in-time § 2254 petition is subject to the limitations on second
or successive petitions, set forth in 28 U.S.C. § 2244(b), as
there was no new judgment intervening between the 2015 petition
and this petition. See Burton v. Stewart, 549 U.S. 147, 156
(2007). Section 2244(b) requires a petitioner to obtain
permission from the appropriate Court of Appeals before filing a
second § 2254 petition in the district court.
Brown has not obtained the required permission from the
First Circuit. Therefore, this petition is subject to
dismissal, pursuant to 28 U.S.C. § 2244(b)(3), for lack of
subject matter jurisdiction. See Magwood v. Patterson, 561 U.S.
320, 330-31 (2010).
Transfer of this petition to the First Circuit, in lieu of
dismissal, is not appropriate. Brown’s petition appears to be
time-barred; Brown does not assert a credible claim of actual
innocence; and no other exception to, or basis for the tolling
of, the statute of limitations is apparent on the face of
Brown’s petition. Accordingly, the district judge should simply
dismiss this petition, leaving Brown free to apply to the First
Circuit for permission to refile a similar, successive § 2254
petition in this court, pursuant to 28 U.S.C. § 2244(b)(3)(A)
and First Circuit Local Rule 22.1.
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Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 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). When the district court denies
a habeas petition on procedural grounds without reaching the
underlying constitutional claims, 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).
Here, the grounds for dismissal are purely procedural.
Reasonable jurists would not find it debatable that the instant
petition is an unauthorized “second or successive” petition.
Accordingly, the district judge should decline to issue a
certificate of appealability in this case.
Conclusion
For the foregoing reasons, the district judge should
dismiss the petition (Doc. No. 1) for lack of subject matter
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jurisdiction, and decline to issue a certificate of
appealability. Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice. See
Fed. R. Civ. P. 72(b)(2). The fourteen day period may be extended
upon motion. Failure to file objections within the specified time
waives the right to appeal the district court’s order. See Santos-
Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea Johnstone
United States Magistrate Judge
January 30, 2017
cc: Clinton S. Brown, pro se
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