Covington v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Covington
v. Civil No. 23-cv-331-SE-AJ
Warden Michelle Edmark1
REPORT AND RECOMMENDATION
Before the Court is Petitioner James Covington’s Petition
for a Writ of Habeas Corpus, filed under 28 U.S.C. § 2254 (Doc.
No. 1). In his petition, Mr. Covington challenges his present
custody pursuant to his 2000 state court conviction and sentence
for second degree murder. The Petition is before the
undersigned Magistrate Judge for preliminary review pursuant to
28 U.S.C. § 2243, Rule 4 of the Rules Governing Section 2254
Cases (“§ 2254 Rules”), and LR 4.3(d)(4)(A).
§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a judge is required to examine
any petition for habeas relief and, if “it plainly appears from
the petition and any attached exhibits that the petitioner is
1 Petitioner filed this action while he was incarcerated at
the Northern New Hampshire Correctional Facility, and properly
named the Warden of that facility as the respondent in this
action. Petitioner has since been transferred to the New
Hampshire State Prison for Men. The Warden at that facility,
Michelle Edmark, is now the proper respondent to this action.
The Clerk’s office is directed to update the docket accordingly.
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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). As Mr. Covington is representing himself in this
matter, the court construes his pleadings liberally. See Dutil
v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Background
Mr. Covington is incarcerated at the New Hampshire State
Prison for Men pursuant to a 30-year-to-life sentence imposed on
May 12, 2000 in the New Hampshire Superior Court, following Mr.
Covington’s guilty plea to second degree murder. See State v.
Covington, No. 219-1999-CR-00584 (N.H. Super. Ct., Strafford
Cty.) (“Criminal Case”). The New Hampshire Supreme Court
(“NHSC”) affirmed his conviction and sentence. In his Petition
here, Mr. Covington asserts that his state court sentence
violated his federal constitutional rights because the sentence
exceeded what he understood to be the maximum sentence allowable
under his plea agreement.
Mr. Covington has filed several post-conviction proceedings
in the state courts since his conviction, most recently a
“Motion to Rectify and Clarify an Unconstitutional Sentence and
Ineffective of Counsel” filed in the Superior Court in March
2023. See Criminal Case (Index No. 137). The Superior Court
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denied the motion on March 29, 2023, id. (Index No. 139), and
denied Mr. Covington’s motion to reconsider the denial on April
14, 2023 Order. It does not appear that Mr. Covington appealed
that decision to the NHSC.
In addition to his state court post-conviction challenges
to his conviction and sentence, Mr. Covington previously filed a
§ 2254 petition in this Court challenging the legality of his
custody pursuant to the judgment of conviction and sentence
challenged here. See Covington v. N.H. State Prison Warden, No.
02-cv-592-PB (D.N.H., filed Dec. 24, 2002) (“Covington I”). Mr.
Covington states that the claim or claims asserted in Covington
I also challenged his current criminal sentence, but are not the
same claims he asserts in the instant petition.
In Covington I, the Court granted summary judgment for the
respondent, dismissing that case, on May 5, 2003. Mr. Covington
filed a motion to vacate that order of dismissal on March 18,
2004, id. (ECF No. 8), which the Court denied on April 13, 2004,
id. (ECF No. 10). Mr. Covington’s motion to reconsider, id.
(ECF Nos. 12, 13); motion for a certificate of appealability,
id. (ECF No. 15); and motion to reopen the case, id. (ECF No.
16), were also denied. Id. May 12, 2004 Orders; ECF Nos. 10,
19).
Mr. Covington filed two appeals of the dismissal of
Covington I in the First Circuit Court of Appeals: Covington v.
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Warden, No. 04-1748 (1st Cir., filed June 9, 2004) and Covington
v. Warden, No. 04-2042 (1st Cir., filed Aug. 4, 2004). Mr.
Covington filed a request for a Certificate of Appealability in
each of those appeals. The First Circuit consolidated the
appeals, denied Mr. Covington’s requests for a Certificate of
Appealability, and terminated both appeals on September 21,
2004.
On November 2, 2005, Mr. Covington filed an original
petition in the First Circuit requesting permission to file a
successive § 2254 petition pursuant to § 2244(b)(3). See
Covington v. Warden, No. 05-2665 (1st Cir., filed Nov. 2, 2005).
That request was denied, both as untimely under 28 U.S.C. §
2244(d)(1)(D), and for Mr. Covington’s failure to satisfy the
requirements for a successive § 2254 petition set forth in §
2244(b)(2)(B).2
2 28 U.S.C. § 2244(b)(2)(B) requires that:
[a] claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless -- (i) the factual predicate for the claim
could not have been discovered previously through the
exercise of due diligence; and (ii) the facts
underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
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Discussion
I. Second or Successive Petition
“A state prisoner is entitled to one fair opportunity to
seek federal habeas relief from his conviction. But he may not
usually make a ‘second or successive habeas corpus
application.’” Banister v. Davis, 590 U.S. 504, 507 (2020)
(citing 28 U.S.C. § 2244(b)). “Before a second or successive
application . . . is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”
Id. § 2244(b)(3)(A).
“A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.” Id. § 2244(b)(1). And claims
that were not previously raised in a prior § 2254 petition
challenging the same state conviction cannot be litigated in
this court in a successive petition without the permission of
the First Circuit. See id. § 2244(b)(2) & (3).
Mr. Covington’s petition is a second or successive § 2254
petition, as it challenges the same state court judgment of
conviction and sentence at issue in Covington I, even if his
present Petition raises different grounds for relief, as Mr.
Covington asserts is the case here. See Burton v. Stewart, 549
U.S. 147, 153 (2007). Accordingly, the petition here should be
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dismissed, as an unauthorized second or successive petition, for
lack of jurisdiction, because Mr. Covington has not obtained
permission from the First Circuit to file a second petition in
this Court.
II. Transfer or Dismissal
A “district court, faced with an unapproved second or
successive habeas petition, must either dismiss it, or transfer
it to the appropriate court of appeals,” so that the appellate
court can decide whether to allow the petitioner to proceed in
the district court. See Pratt v. United States, 129 F.3d 54, 57
(1st Cir. 1997) (citation omitted). A transfer to the First
Circuit is neither mandated, see 28 U.S.C. § 1631, nor
appropriate here. The petitioner’s claims appear to be untimely
and of the sort he could have raised in his initial petition.
Accordingly, the District Judge should dismiss this case in its
entirety, without prejudice to Mr. Covington’s ability to seek
the First Circuit’s permission to file his new claims in a
successive § 2254 petition, in accordance with 28 U.S.C.
§ 2244(b)(3)(A) and 1st Cir. Local Rule 22.1.
III. Certificate of Appealability (“COA”)
The § 2254 Rules require the court to “issue or deny a
certificate of appealability when it enters a final order
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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 and motion
to vacate amount to an unauthorized “successive” petition over
which this Court lacks jurisdiction, and which therefore is
subject to dismissal. The district judge should thus decline to
issue a COA in this case.
Conclusion
For the foregoing reasons, the district judge should
dismiss Mr. Covington’s petition in its entirety for lack of
jurisdiction, and decline to issue a certificate of
appealability. Any objections to this Report and Recommendation
(“R&R”) must be filed within fourteen days of receipt of this
notice. Fed. R. Civ. P. 72(b)(2). The fourteen-day period may
be extended upon motion. Failure to file any objection 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). Only those issues raised in the
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written objections to this R&R “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Id. (citations omitted).
__________________________________
Andrea K. Johnstone
United States Magistrate Judge
November 21, 2024
cc: James Covington, pro se
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