Sheppard v. Medeiros

Filing 11

Judge George A. OToole, Jr: ORDER entered denying without prejudice 9 Motion for Order ( Copy of this order mailed out to petitioner). (Lyness, Paul)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13364-GAO

OSBORNE SHEPPARD,
Petitioner,
v.
SEAN MEDEIROS,
Respondent.

ORDER
January 25, 2016

O’TOOLE, D.J.
For the reasons set forth below, the Court directs both parties to provide argument for or
against dismissal of this action as an unauthorized second or successive petition for a writ of
habeas corpus under 28 U.S.C. § 2254.
On September 11, 2015, Osborne Sheppard filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Sheppard does not identify the judgment of conviction that he is
challenging. The Court assumes that this petition concerns his 1980 conviction for first degree
murder. See Commonwealth v. Sheppard, 394 Mass. 381 (1985); see also Massachusetts v.
Sheppard, 468 U.S. 981 (1984).
In 2001, Sheppard filed a § 2254 petition in this Court challenging the 1980 conviction.
See Sheppard v. Commonwealth, C.A. No. 01-10916-RCL. In an order dated July 3, 2003 (dkt.
no. 54), the Court granted the respondent’s motion to dismiss as untimely under the one-year
period of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

See 28 U.S.C. § 2244(d). 1 The petitioner did not appeal the denial of his petition.
Under AEDPA, there are significant restrictions on a petitioner’s ability to file more than
one § 2254 petition. Before “a second or successive application [under 28 U.S.C. § 2254] is filed
in the district court, the applicant shall move in the in the appropriate court of appeals for an order
authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Where a
litigant bringing a second or successive § 2254 petition has not received permission form the
court of appeals to file the document, the district court is without jurisdiction to entertain the
merits of the petition. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam); Rodwell v.
Pepe, 324 F.3d 66, 72–73 (1st Cir. 2003).
A dismissal of a first § 2254 petition “is a decision on the merits, and any later habeas
petition challenging the same conviction is second or successive and is subject to the AEDPA
requirements.” See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (citing similar decisions
from the Second, Fifth, Seventh, and Ninth circuits); see also Rohn v. Horton, 508 F. App’x 170,
171 (3d Cir. 2013) (per curiam) (same). Because Sheppard’s 2001 petition was dismissed as timebarred and he does not represent that he sought and received permission from the First Circuit to
file the present petition, it would appear that the Court does not have jurisdiction over this action.
The Court, having raised the question of jurisdiction sua sponte, directs the parties to
submit written argument for or against denial of the petition as an unauthorized second or
successive § 2254 petition. The parties have forty-two (42) days to respond to this Order.

1

In cases where a conviction became final before the passage of AEDPA on April, 24, 1996,
petitioners were given a one year grace period—until April 24, 1997—to file a § 2254 petition.
See Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999).

The respondent’s Motion for an Order Directing Petitioner to Comply with Rule 2(c) of the Rules
Governing Section 2254 Cases (dkt. no. 2) is DENIED without prejudice to renewal if this action
is not dismissed for lack of jurisdiction.
It is SO ORDERED.

/s/ George A. O’Toole, Jr.
United States District Judge