Stow v. Michelle Edmark, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Weston Stow
v. Civil No. 23-cv-186-SE-AJ
Warden Michelle Edmark
REPORT AND RECOMMENDATION
Before the court is Weston Stow’s petition for a writ of
habeas corpus filed under 28 U.S.C. § 2254 (Doc. No. 1) and
petition addenda (Doc. Nos. 5, 8, 9), which assert claims
challenging his present custody pursuant to his 1990 state court
conviction for sexual assault and kidnapping. 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
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. Stow is representing himself in this matter,
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the court construes his pleadings liberally. See Dutil v.
Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Background
Mr. Stow is incarcerated at the New Hampshire State Prison,
serving a 41-82 year sentence pursuant to a 1990 state court
conviction for sexual assault and kidnapping. The New Hampshire
Supreme Court (“NHSC”) affirmed his conviction. See State v.
Stow, 136 N.H. 598, 620 A.2d 1023 (1993). In the petition
documents filed in this case, Mr. Stow asserts challenges to the
constitutionality of his state court convictions and the
sentence imposed thereon.
Mr. Stow has filed multiple post-conviction proceedings in
the state courts since his conviction, most recently a 2021
habeas petition in the Superior Court, Stow v. Riendeau, No.
214-2021-CV-00020 (N.H. Super. Ct., Coos Cty.), which was
unsuccessful in the Superior Court and then on appeal. In
addition, Mr. Stow has previously filed two other § 2254
petitions in this Court challenging the constitutionality of the
1990 conviction and sentence challenged here. See Stow v.
Prison Warden, No. 02-cv-064-JD (D.N.H.) (“Stow I”); Stow v.
N.H. State Prison, Warden, No. 06-cv-378-PB (D.N.H.) (“Stow
II”).1
1 Mr. Stow has also filed a § 2254 petition in this court
challenging a decision to deny him, Stow v. N. N.H. Corr.
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In 2002, Mr. Stow filed a petition in Stow I challenging
his 1990 state court conviction and sentence. The Stow I Court
denied Mr. Stow’s petition, dismissing that case, on March 13,
2003. In 2006, Mr. Stow filed the petition in Stow II, again
challenging his 1990 state court conviction and sentence. The
Court denied the petition in Stow II on the basis that it was a
successive § 2254 petition, and that Mr. Stow had not obtained
the approval of the First Circuit Court of Appeals before filing
his petition here, and therefore, this Court lacked jurisdiction
to consider his petition. See Stow II, Sept. 12, 2007 Order
(ECF No. 8) (approving Oct. 31, 2006 R&R (ECF No. 5)).
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, 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.
Facility, Warden, No. 21-cv-156-JL (D.N.H.). That matter does
not impact this Court’s recommendation as to the disposition of
Mr. Stow’s petition in this case.
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Id. § 2244(b)(3)(A). This Court lacks jurisdiction over a
second or successive petition for which the petitioner has not
obtained the appropriate permission from the First Circuit Court
of Appeals under § 2244.
“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. Stow’s petition is a second or successive § 2254
petition, as it challenges the same state court conviction and
sentence at issue in Stow I. See Banister, 140 S. Ct. at 1710.
Accordingly, the petition here should be dismissed, as an
unauthorized second or successive petition, for lack of
jurisdiction.
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
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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. Stow’s ability 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 (“COA”)
The § 2254 Rules require the court to “issue or deny a
certificate of appealability 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 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.
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Conclusion
For the foregoing reasons, the district judge should
dismiss Mr. Stow’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
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
April 17, 2024
cc: Weston Stow, pro se
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