Rogers v. New Hampshire, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott N. Rogers
v. 	Civil No. 18-cv-740-SM
State of New Hampshire
REPORT AND RECOMMENDATION
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 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
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). 	The court construes Rogers’s pleadings
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liberally, in light of 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.
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).
The 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.
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Rogers 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.
II. 	Relief Not Cognizable in a Federal Habeas Action
Rogers 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.
III. 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). 	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
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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 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
jurisdiction, deny the motion for new trial as moot (Doc. No.
3), 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 K. Johnstone
United States Magistrate Judge
September 10, 2018
cc: 	Scott N. Rogers, pro se
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