Blackmer v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Blackmer
v. Case No. 17-fp-041
State of New Hampshire
REPORT AND RECOMMENDATION
Pro se prisoner Paul Blackmer has filed an initial pleading
(Doc. No. 1) entitled, “Demand for Personal Recognizance Bail
and/or Now Lawfully Required Imposition of Appropriate Sua
Sponte Relief.” The court docketed that filing as a petition
for a writ of habeas corpus under 28 U.S.C. § 2254, and hereby
subjects the filing to screening pursuant to Rule 4 of the Rules
Governing § 2254 Cases (“§ 2254 Rule 4”) and LR 4.3(d)(4).
Blackmer responded by filing a document (Doc. No. 3)
entitled, “Needed Judicial Review of Paul Blackmer’s ‘Demand’
for Personal Recognizance Bail and/or Now Unlawfully Required
Imposition of Appropriate Sua Sponte Relief.” The court
docketed that filing as a motion to change the characterization
of the petition. In that filing (Doc. No. 3), Blackmer repeats
the same assertion made in his initial pleading, that the state
prosecution was “void ab initio,” and he seeks: an evidentiary
hearing, access to so-called “Brady material Answer evidence,”
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as well as release on bail. Doc. No. 3, at 1.
Blackmer eschews the court’s characterization of his
initial pleading as a § 2254 petition. Blackmer’s intent in
that regard, however, does not alter the fact that his filing,
construed liberally, challenges the validity of his continued
incarceration pursuant to a state judgment, and seeks an order
from this court releasing him from confinement. As such the
petition is properly characterized as a petition for a writ of
habeas corpus, under 28 U.S.C. § 2254. Blackmer cannot alter
that legal conclusion simply by his own say-so.
Blackmer previously litigated two § 2254 petitions
challenging his 1997 and 1999 convictions in this court. See
Blackmer v. Warden, No. 1:03-cv-00275-PB, 2004 DNH 180, 2004 WL
2823216, 2004 U.S. Dist. LEXIS 24824 (D.N.H. Dec. 9, 2004); see
also Blackmer v. Warden, No. 1:05-cv-00340-PB, 2008 DNH 17, 2008
WL 227267, 2008 U.S. Dist. LEXIS 6012 (D.N.H. Jan. 28, 2008).
This petition is successive to both of those § 2254 petitions.
This court lacks subject matter jurisdiction over a
successive § 2254 petition, unless and until the federal court
of appeals has decreed that it may go forward. See Magwood v.
Patterson, 561 U.S. 320, 330-31 (2010); see also 28 U.S.C.
§ 2244(b)(3)(A). A habeas petition filed in the district court
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without the requisite pre-authorization from the appellate court
is subject to dismissal. See Magwood, 561 U.S. at 331.
Because Blackmer has neither sought nor obtained the
required authorization from the First Circuit to file this
petition, this court lacks jurisdiction to consider it.
Accordingly, the district judge should deny Blackmer’s motion to
recharacterize his initial filing (Doc. No. 3), and the district
judge should dismiss the petition (Doc. No. 1), for lack of
jurisdiction. Furthermore, the district judge should decline to
issue a certificate of appealability, as Blackmer has not shown
that reasonable jurists could debate whether the petition should
have been resolved in a different manner, that the issues
presented were adequate to deserve encouragement to proceed
further, and he has not otherwise made a substantial showing of
the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Any objections to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). The 14-day period may be extended upon
motion. Failure to file objections within that time waives the
right to appeal the district court’s order. See Santos-Santos
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v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 17, 2017
cc: Paul Blackmer, pro se
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