Rogers v. New Hampshire, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott N. Rogers
v. Civil No. 17-cv-356-JD
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 an addendum to that petition (Doc. No. 6). 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) (citing § 2254 Rule 4)). The court construes
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Rogers’s pleadings liberally, with due consideration for 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.
The New Hampshire Supreme Court affirmed the convictions. See
State v. Rogers, No. 2010-0515, 2013 WL 11998270, at *2 (N.H.
June 11, 2013).
Beginning in 2013 and concluding with post-judgment motions
filed in 2016, 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.1 Respondent moved for summary judgment on that prior
§ 2254 petition, and the district judge granted that motion and
denied a certificate of appealability. See Rogers v. Gerry, No.
13-cv-322-LM (D.N.H.) (“Rogers I”), 2014 U.S. Dist. LEXIS
1Rogers also filed a § 2254 petition prematurely in 2012,
which was dismissed without prejudice, in that Rogers’s direct
appeal of his conviction remained pending in the NHSC when he
filed that § 2254 petition. See Rogers v. New Hampshire, No.
12-cv-324-PB (Oct. 1, 2012) (ECF No. 6), R&R approved, No. 12-
cv-324-PB (D.N.H. Jan. 4, 2013) (ECF No. 9).
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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).
Rogers filed another federal habeas petition in 2016. See
Rogers v. N.H. State Prison Warden, No. 16-cv-388-LM (D.N.H.)
(“Rogers II”). The court dismissed that case upon finding it to
be a successive petition, pursuant to 28 U.S.C. § 2244(b). See
Rogers II, 2017 U.S. Dist. LEXIS 16362, at *1 (D.N.H. Feb. 3,
2017), approving R&R, 2016 U.S. Dist. LEXIS 183737, 2016 WL
8732635 (D.N.H. Dec. 16, 2016) (D.N.H. Dec. 16, 2016).
Claims
Liberally construed, the instant § 2254 petition (Doc. No.
1) asserts the following double jeopardy claim as grounds for
relief under 28 U.S.C. § 2254:
Rogers was charged with, convicted of, and subjected to
consecutive sentences for the theft and receipt of stolen
property, with respect to the same televisions, subjecting
him to multiple punishment for the same offense.
Discussion
I. Successive Petition
The instant petition is subject to the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
As explained in the Report and Recommendation in Rogers II:
AEDPA restricts this court’s jurisdiction to consider the
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merits of claims asserted in successive petitions for
federal habeas relief. This petition is successive to the
prior petition upon which summary judgment was granted in
2014. If a prisoner wishes to file a “second or
successive” habeas petition, such as the instant petition,
he must follow certain procedures before this court can
consider his claims, pursuant to 28 U.S.C. § 2244(b).
AEDPA requires approval of the federal court of appeals
before a second or successive habeas corpus petition, as
defined by that statute, may be filed in a federal district
court, even if the petition raises new factual or legal
grounds for relief. 28 U.S.C. § 2244(b)(2); see also
Burton v. Stewart, 549 U.S. 147, 152-53 (2007). AEDPA
strips the district court of jurisdiction over such a
petition unless and until the federal court of appeals has
[allowed it to go] forward. See 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 requisite
authorization from the appellate court is subject to
dismissal. See Magwood, 561 U.S. at 331.
Rogers II, 2016 U.S. Dist. LEXIS 183737, at *10-*11, 2016 WL
8732635, at *4 (D.N.H. Dec. 16, 2016).
Rogers has not obtained the required authorization from the
First Circuit 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, as a successive § 2254 petition filed before
Rogers obtained First Circuit authorization, pursuant to 28
U.S.C. § 2244(b)(3)(A).2
2Rogers is free to apply in the First Circuit for permission
to file a similar, successive § 2254 petition in this court,
pursuant to 28 U.S.C. § 2244(b)(3)(A) and First Circuit Local
Rule 22.1. This court notes, however, that Rogers has not yet
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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
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
demonstrated that he has exhausted his state remedies on his
claims under 28 U.S.C. § 2254(b)(1), as Rogers has not filed a
New Hampshire Supreme Court order on his double jeopardy claim.
Cf. Addendum to Pet. (Doc. No. 6) (Superior Court filings).
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certificate of appealability in this case.
Conclusion
For the foregoing reasons, the district judge should
dismiss the petition for lack of subject matter 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. 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 15, 2017
cc: Scott N. Rogers, pro se
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