Wescott v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard R. Wescott
v. Civil No. 16-cv-306-LM
Michael Zenk, Warden,
New Hampshire State Prison
REPORT AND RECOMMENDATION
Before the court is Richard Wescott’s petition for a writ
of habeas corpus (Doc. No. 1), filed pursuant to 28 U.S.C. §
2254. The matter is before the court for preliminary review.
See Rule 4, Rules Governing Section 2254 Cases (“§2254 Rules”);
LR 4.3(d)(2).
Wescott has also filed a “Motion to Compel Handling of
Documents” (Doc. No. 2), seeking access to the files of his
trial attorneys, which is before the court for a ruling.
Additionally, Wescott’s “Motion for Injunctive Relief” (Doc. No.
3), seeking an order directing the New Hampshire State Prison
not to transfer Wescott out of its Concord prison facility, has
been referred to this magistrate judge for proposed findings of
fact and a recommendation as to disposition.
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Standard of Review
In undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual matter,
accepted as true, to state a facially valid claim to relief that
is cognizable in a federal habeas action. See McFarland v.
Scott, 512 U.S. 849, 856 (1994). When a habeas petitioner is
proceeding pro se, the assertions contained in the petition are
construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
Background
This is the fourth § 2254 petition Wescott has filed in
this court since 2009 seeking relief from his 1998 conviction
and sentence, imposed pursuant to a negotiated plea agreement,
on multiple counts of aggravated felonious sexual assault.
Wescott’s first habeas petition in this court, Wescott v. Gerry,
No. 09-cv-334-JD (“Wescott I”), challenging Wescott’s 2008
denial of parole, was denied on the merits. See Wescott I, Nov.
24, 2009 Order (ECF No. 6) (approving Nov. 4, 2009 R. & R. (ECF
No. 4)). Wescott’s second habeas petition in this court,
Wescott v. Gerry, No. 10-cv-598-PB (“Wescott II”), challenging
the state’s authority to incarcerate Wescott under state law,
was denied as a successive petition, pursuant to 28 U.S.C. §
2244, as Wescott filed that petition in this court without
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having first obtained the First Circuit’s permission to do so,
as required by § 2244(b)(3)(A). See Wescott II, Apr. 25, 2011
Order (ECF No. 8) (approving Apr. 6, 2011 R. & R. (ECF No. 6)).
Wescott’s third habeas petition in this court, Wescott v. Gerry,
No. 14-cv-56-SM (“Wescott III”), asserting claims challenging
the authority of the state to incarcerate him under state law
(that had not been previously raised in this court), was also
denied as a successive petition pursuant to 28 U.S.C. § 2244, as
Wescott filed that petition in this court without having first
obtained the First Circuit’s permission to do so, as required by
§ 2244(b)(3)(A). See Wescott III, Apr. 22, 2014 Order (ECF No.
7).
In this action, Wescott brings his fourth § 2254 petition
in this court, challenging his conviction and sentence on
grounds that his trial counsel failed to provide him with the
effective assistance of counsel, in violation of Wescott’s Sixth
Amendment right to the effective assistance of counsel, First
Amendment right to meaningful access to the courts, and
Fourteenth Amendment due process and equal protection rights.
Wescott states that the claims asserted in the instant petition
have not been asserted in any of his previous petitions in this
court. Wescott further asserts that he discovered the claims in
this petition after a 2014 disclosure to Wescott of new evidence
not previously available to him.
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Discussion
As was the case in Wescott’s 2010 and 2014 habeas actions
in this court, this court has no jurisdiction to hear this case,
as Wescott’s petition is successive, and he has not obtained the
First Circuit’s permission to file this matter here, as required
by § 2244(b)(3)(A). Wescott must seek such permission even if
the petition raises factual or legal grounds for relief not
previously raised before this court. See Burton v. Stewart, 549
U.S. 147, 152-53 (2007). Wescott’s assertion that the claims in
this action are based on newly discovered evidence does not
excuse this case from the requirement that, before bringing this
action here, that Wescott seek authorization to do so from the
First Circuit.1 A habeas petition filed in the district court
1 Under 28 U.S.C. § 2244(b)(2), the First Circuit may
determine that this court may consider a claim asserted in a
successive petition, if
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(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
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without the requisite authorization from the appellate court
should be dismissed. See Magwood v. Patterson, 561 U.S. 320,
331 (2010).
Accordingly, the district judge should dismiss the
petition, as this court lacks jurisdiction to consider it in the
absence of authorization from the First Circuit. The dismissal
should be entered without prejudice to Wescott’s ability to seek
such authorization from the First Circuit. For the same reason,
Wescott’s motions (Doc. Nos. 2, 3) should also be denied,
without prejudice to Wescott’s ability to renew them if the
First Circuit authorizes Wescott to litigate his habeas claims
in this court.
Conclusion
For the foregoing reasons, the district judge should
dismiss Wescott’s habeas petition (Doc. No. 1) and deny his
motions (Doc. Nos. 2, 3) without prejudice. 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
reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2244(b)(2); see also Burton v. Stewart, 549 U.S.
147, 153 (2007)
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file specific written objections to the Report and
Recommendation 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); Fed. R. Civ. P.
72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 28, 2016
cc: Richard R. Wescott, pro se
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