Avery v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Edgar Clifford Avery, Jr.
v. 	Case No. 23-cv-245-LM
State of New Hampshire
REPORT AND RECOMMENDATION
Before the court is prisoner Edgar Clifford Avery, Jr.’s
petition (entitled, “Motion to Vacate Judgment” (Doc. No. 1))
and its addenda (entitled, “Addendum to Motion to Vacate
Judgment” (Doc. No. 2), “Appendix” (Doc. No. 3), and “Petition
for a Writ of Habeas Corpus” (Doc. No. 4)), which assert claims
challenging his 1975 first-degree murder conviction and
decisions in his post-conviction proceedings. 	The matter is
here for screening 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 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
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legally insufficient on its face.” 	McFarland v. Scott, 512 U.S.
849, 856 (1994). 	The court construes Mr. Avery’s pleadings
liberally, in light of his pro se status. 	See Dutil v. Murphy,
550 F.3d 154, 158 (1st Cir. 2008).
Background
In May 1975, a jury in state court convicted Mr. Avery of
first-degree murder in the shotgun death of Lee Ann Greeley in
1973. 	The New Hampshire Supreme Court affirmed that conviction.
See State v. Avery, 126 N.H. 208, 490 A.2d 1350 (1985).
Mr. Avery filed multiple post-conviction proceedings,
including a prior petition seeking relief under 28 U.S.C.
§ 2254. 	See Avery v. Comm’r N.H. Dep’t of Corr., No. 92-cv-262-
SM (D.N.H.) (“Avery I”). 	The court in Avery I granted the
respondent’s motion to dismiss that matter on September 29,
1993. 	See Sept. 29, 1993 Order, id. (ECF No. 24). 	The First
Circuit affirmed the dismissal of Avery I. 	See Avery v. Comm’r
N.H. Dep’t of Corr., No. 94-1050, 32 F.3d 561 (table), 1994 U.S.
App. LEXIS 22268, 1994 WL 446785 (1st Cir. Aug. 18, 1994).
Mr. Avery has filed a series of post-conviction motions and
proceedings since the entry of judgment in Avery I, seeking to
collaterally attack his state conviction and/or to reopen Avery
I. 	The court has denied relief or dismissed those proceedings
for reasons including lack of jurisdiction. 	See, e.g., Feb. 20,
2008 Order, Avery I (ECF No. 48), 2008 DNH 041, 2008 U.S. Dist.
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LEXIS 12948, at *5, 2008 WL 505983, at *2 (D.N.H. Feb. 20, 2008)
(“February 2008 Order, Avery I”). 	See generally Avery v. St.
Germain, No. 21-CV-662-JL, 2022 U.S. Dist. LEXIS 210586, at *2,
2022 WL 17084545, at *1 (D.N.H. July 11, 2022) (listing prior
proceedings), R&R adopted, 2022 U.S. Dist. LEXIS 209239, 2022 WL
17082113 (D.N.H. Nov. 18, 2022), appeal filed, No. 22-1971 (1st
Cir. Dec. 22, 2022).
The pleadings (Doc. Nos. 1-4) assert the following claims:
• 	Ineffective assistance of counsel at trial, on appeal
and in post-conviction proceedings;
• 	Judicial bias in a state post-conviction proceeding,
Avery v. Cunningham, No. 85-E-25 (N.H. Super. Ct.);
• 	The invalidity of his May 1974 arrest warrant and
criminal complaint, as they were based on a state law
that had been repealed in April 1974, which he
asserts renders his ensuing prosecution and
conviction a nullity, and shows he is “innocent” of
first-degree murder, “as a matter of fact and law.”
The relief sought is an order vacating the September 1993 Order
and December 1993 judgment in Avery I; an order “vacat[ing] any
and all decisions and judgments . . . rendered regarding [his]
prosecution and conviction for murder in the ‘first degree’ on
May 19, 1975”; and an order releasing him from state prison.
Discussion
I. 	Second or Successive Petition & Motion to Vacate“A state
prisoner is entitled to one fair opportunity to seek federal
habeas relief from his conviction. 	But he may not usually make
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a ‘second or successive habeas corpus application.’” 	Banister
v. Davis, 140 S. Ct. 1698, 1702 (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. Avery’s initial filing here, docketed as a § 2254
petition, is a second or successive § 2254 petition; it appears
to be an attempt at unauthorized serial habeas litigation,
challenging the same state court judgment of conviction that was
at issue in Avery I. 	See Banister, 140 S. Ct. at 1710.
The outcome here will not change if the “Motion to Vacate”
(Doc. No. 1) and the “Addendum to the Motion to Vacate” (Doc.
No. 2) had been docketed in Avery I. 	A Rule 60(b) motion to
reopen the judgment in a prior § 2254 petition will not be
deemed to be a second or successive petition, if that motion
merely asserts an error in the prior decision of the federal
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court, cognizable under Fed. R. Civ. P. 60(b), which precluded
that court’s consideration of the merits of the first § 2254
petition. 	But such a motion will be deemed to be a second or
successive § 2254 petition if it advances claims for habeas
relief challenging the same state court judgment of conviction
as the underlying petition. 	See Gonzalez v. Crosby, 545 U.S.
524, 532 (2005). 	Document Nos. 1 and 2 amount to precisely that
type of successive petition presented in the guise of a Rule
60(b) motion: those pleadings ask this court to vacate the
nearly thirty-year old judgment in Avery I and the decisions and
judgments in other federal post-conviction proceedings because,
petitioner claims, his underlying state court judgment of
conviction is void and unconstitutional. 	See Gonzalez, 545 U.S.
at 532; Jackson v. Lumpkin, 25 F.4th 339, 340-41 (5th Cir.
2022); February 2008 Order, Avery I; see also Banister, 140 S.
Ct. at 1710. 	Accordingly, the petition here is properly
dismissed for lack of jurisdiction as an unauthorized second or
successive petition.
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
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(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 derivative of claims he has sought to raise previously.
Nothing before this court suggests that there is any exigency or
other consideration requiring an immediate transfer in the
interests of justice. 	Accordingly, the district judge should
dismiss this case and deny the motion to vacate for lack of
jurisdiction, leaving Mr. Avery free to seek the First Circuit’s
permission to file his claims in a new § 2254 petition, in
accordance with 28 U.S.C. § 2244(b)(3)(A) and 1st Cir. Local
Rule 22.1.
III. Certificate of Appealability
The § 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.
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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 that
is subject to dismissal. 	The district judge should thus decline
to issue a COA here.
Conclusion
For the foregoing reasons, the district judge should deny
the motion to vacate, dismiss the petition for lack of
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.
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 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
May 11, 2023
cc: 	Edgar Clifford Avery, Jr., pro se
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