Castonguay v. Houston
MEMORANDUM OPINION that the Court will dismiss Petition for Writ of Habeas Corpus 1 because it is a second or successive habeas corpus petition that has not been authorized by the Eighth Circuit Court of Appeals. The Court will not issue a certificate of appealability in this case. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
This matter is before the Court on initial review of
petitioner Paul Castonguay’s Petition for Writ of Habeas Corpus
(“Petition”) filed pursuant to 28 U.S.C. § 2254 (Filing No. 1).
The Court will dismiss Castonguay’s Petition because it is a
second or successive habeas corpus petition that has not been
authorized by the Eighth Circuit Court of Appeals.
The statutory prohibition against successive petitions
by state prisoners is codified in 28 U.S.C. § 2244(b), which
provides in relevant part:
(b)(1) A claim presented in a
second or successive habeas corpus
application under section 2254 that
was presented in a prior
application shall be dismissed.
(2) A claim presented in a second
or successive habeas corpus
application under section 2254 that
was not presented in a prior
application shall be dismissed
(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
(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
reasonable factfinder would
have found the applicant
guilty of the underlying
(3)(A) Before a second or
successive application permitted by
this section 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
In Magwood v. Patterson, 130 S. Ct. 2788 (2010), the United
States Supreme Court held that “the phrase ‘second or successive’
must be interpreted with respect to the judgment challenged.”
Id. at 2797.
In other words, the phrase “second or successive”
applies to entire habeas petitions, and not to individual claims
in those petitions.
Id. at 2798.
This Court’s records reflect that Castonguay’s petition
is his second in this Court challenging the same judgment.
challenges the conviction of first degree sexual assault obtained
in the Douglas County District Court in 2009. (See Filing No. 1
at CM/ECF p. 1.)
Petitioner unsuccessfully challenged this same
Douglas County conviction in earlier federal habeas corpus
(See Castonguay v. Tecumseh Institution, Case No.
4:11CV03145 (D. Neb.) (dismissing petition with prejudice on
April 3, 2012.)
The pending petition is a second or successive petition
under the statute because it challenges the same Douglas County
conviction and sentence already challenged in this Court.
record does not reflect that petitioner has received permission
from the Eighth Circuit Court of Appeals to again attack this
If petitioner wishes to continue to pursue this
matter, he should file a motion with the Eighth Circuit Court of
Appeals fully addressing the legal requirements for successive
habeas petitions set forth in 28 U.S.C. § 2244(b).
CERTIFICATE OF APPEALABILITY
A petitioner cannot appeal an adverse ruling of his
petition for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability.
Fed. R. App. P. 22(b)(1).
28 U.S.C. § 2253(c)(1);
A certificate of appealability cannot
be granted unless the petitioner “has made a substantial showing
of the denial of a constitutional right.”
To make such a showing, “[t]he petitioner must
demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
Slack v. Daniel, 529 U.S. 473, 484 (2000).
In this case, Castonguay has failed to make a
substantial showing of the denial of a constitutional right.
Court is not persuaded that the issues raised in the petition are
debatable among reasonable jurists, that a court could resolve
the issues differently, or that the issues deserve further
Accordingly, the Court will not issue a certificate
of appealability in this case.
A separate order will be entered
in accordance with this memorandum opinion.
DATED this 20th day of June, 2013.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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