Ellison v. NH State Prison, Warden

Filing 4

ORDER The court directs Ellison to notify the Court within 30 days if he intends to forgo his three successive claims or whether he intends to seek authorization from the First Circuit to proceed on his entire petition 1 Petition for Writ of Habeas Corpus., ( Miscellaneous Deadline set for 8/2/2012.) So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Tony L. Ellison
v.

Civil No. 12-cv-36-PB

Warden, New Hampshire State Prison

O R D E R
Before the court is Tony Ellison’s petition for a writ of
habeas corpus (doc. no. 1) and addendum thereto (doc. no. 3),
filed pursuant to 28 U.S.C. § 2254.1

The petition is here for

preliminary review to determine whether or not Ellison’s claims
are facially valid and cognizable in an action for federal
habeas relief pursuant to § 2254.

See Rule 4 of the Rules

Governing Section 2254 cases in the United States District
Courts (“§ 2254 Rules”).
Standard of Review
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the

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The petition and addendum will be considered jointly as the
petition in this matter for all purposes.

judge must dismiss the petition.”

Id.

If the petition is

facially valid, the court directs the respondent to answer or
otherwise respond thereto.

Id.

The court undertakes this

preliminary review of the petition with due consideration for
the petitioner's pro se status. “[A]s a general rule, we are
solicitous of the obstacles that pro se litigants face, and
while such litigants are not exempt from procedural rules, we
hold pro se pleadings to less demanding standards than those
drafted by lawyers and endeavor, within reasonable limits, to
guard against the loss of pro se claims due to technical
defects.”

Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008);

see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se
pleadings are construed liberally).
Discussion
I.

Procedural Background2
A.

Plea and Sentencing

In 2001, Ellison was charged with a number of felony sexual
assaults against his children.

In May 2001, Ellison entered

into a negotiated agreement with the state that called for a
sentence of 10-20 years in the state prison in exchange for

2

The facts herein are gleaned from Ellison’s instant
petition and from assertions he made in his previous related
petition before this court in Ellison v. Warden, N.H. State
Prison, No. 08-cv-18-JL (doc. no. 1).
2

Ellison’s guilty plea to nine counts of sexual assault.

A plea

and sentencing hearing was scheduled for August 22, 2001.
Prior to the hearing, Ellison’s wife asked Ellison to send
her a letter detailing his sexual assaults for the purpose of
assisting their daughters in obtaining effective therapy.
appears Ellison sent that letter.

It

Based on admissions therein,

and new disclosures made by one of Ellison’s children, the
prosecutor withdrew his original plea offer shortly before the
scheduled plea and sentencing hearing.

The new information,

according to the prosecutor, made a 10-20 year sentence
inappropriately lenient.

On August 14, 2001, the prosecutor

proposed instead that, in exchange for his guilty plea, Ellison
be sentenced to serve three consecutive 10-20 year standcommitted sentences, with other sentences suspended and imposed
concurrently to the committed sentences.

The state further

agreed not to bring future charges involving the original
victims in Ellison’s case.

It appears that Ellison pleaded

guilty and was sentenced in accordance with the state’s August
14, 2001, proposal.
B.

State Post-Conviction Litigation

On August 22, 2005, four years after Ellison was sentenced
pursuant to his guilty plea, Ellison filed a notice of appeal in
the New Hampshire Supreme Court (“NHSC”) challenging his
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conviction and sentence.

On October 18, 2005, the NHSC declined

the appeal and on November 10, 2005, the NHSC denied Ellison’s
motion to reconsider.
After conducting post-conviction litigation in the state
Superior Court between November 2005 and March 2006, Ellison
filed another notice of appeal in the NHSC on April 18, 2006.
The NHSC declined the appeal on May 11, 2007, denied his motion
to reconsider on May 22, 2007, and denied his motion to amend
his motion to reconsider on June 14, 2007.

Ellison then filed a

writ of quo warranto3 in the NHSC in July 2007 which was declined
on November 8, 2007.

Ellison filed a further pleading in the

NHSC on November 12, 2007, which was denied on November 30,
2007.
C.

First Federal Habeas Petition

On January 11, 2008, Ellison filed a habeas petition in
this court, Ellison v. Warden, N.H. State Prison,
JL (“Ellison I”) (doc. no. 1).

No. 08-cv-18-

In that case, Ellison raised six

grounds for relief, as follows:
1.
Denial of the right to petition the government for a
redress of grievances, in violation of Ellison’s First and
Fourteenth Amendment rights, relating to the failure of the

3

A writ of quo warranto is “a common-law writ used to
inquire into the authority by which a public office is held or a
franchise is claimed.” Black’s Law Dictionary 1371 (9th ed.
2009).
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NHSC to address certain issues that had been addressed to
it by Ellison;
2.
Fourteenth Amendment due process violations for: (a)
the prosecutor’s breach of a plea agreement; (b)
prosecutorial misconduct; and (c) the trial court’s error
in failing to enforce negotiated plea agreement;
3.
Fourteenth Amendment due process violation for
imposition of a sentence in excess of the statutory maximum
for the offense charged;
4.
Denial of Fourteenth Amendment due process rights
where Ellison’s guilty plea was not knowing, intelligent,
and voluntary due to the court’s imposition of an illegal
sentence;
5.
Denial of Sixth Amendment right to the effective
assistance of counsel when Ellison’s attorney failed to
object to the prosecutor’s breach of plea agreement;
6.
Denial of Fifth Amendment right against selfincrimination where Ellison’s ex-wife was utilized by the
state to elicit a confession from Ellison.
On September 16, 2008, the magistrate judge directed
Ellison to amend his petition to demonstrate that it was timely
and to demonstrate exhaustion of his unexhausted claims (doc.
no. 9).

Ellison filed an objection (doc. no. 10) and an

addendum to the petition (doc. no. 11).

The court served

respondent with the petition on October 22, 2008, without making
any finding as to the timeliness of the petition or the adequacy
of Ellison’s demonstration of exhaustion of his claims.
On August 11, 2009, the court in Ellison I issued the
following order (doc. no. 22) granting respondent’s motion for
summary judgment:
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[The Magistrate Judge] ordered the petitioner (doc.
#9) to notify the court of his intent to exhaust
claims 1, 2 and 4-6 during which the case would be
stayed, or to proceed on the only exhausted (but
possibly time-barred) claim (claim #3), thereby
waiving the unexhausted claims. See Rhines v. Weber,
544 U.S. 269, 278-79 (2005); Neverson v. Bissonnette,
261 F.3d 7, 15 n.3 (1st Cir. 2001). The petitioner
gave no complying notice and made no showing of an
attempt to exhaust (see doc. #11), and instead
proceeded on claim #3 (see id.). Assuming without
deciding that the petition is not time-barred,
petitioner’s claim #3 has repeatedly been held to lack
constitutional merit. See Hearns v. Warden, 2008 DNH
180, Pelletier v. Warden, 2008 DNH 139 (2008).
Summary judgment granted in favor of the defendants.
Petition denied. The clerk shall close the case.
Ellison sought review in the United States Court of Appeals
for the First Circuit.

On June 3, 2010, that court denied

Ellison a certificate of appealability and terminated the
appeal on the grounds that “the petitioner has failed to
show that reasonable jurists could find the district
court’s determinations debatable or wrong.”

See Ellison v.

N.H. State Prison, No. 09-2680, slip op. at 1 (1st Cir.
June 3, 2010); Ellison I (doc. no. 44).
D.

2011 State Court Litigation

On January 7, 2011, Ellison filed a habeas petition in the
state Superior Court.

The matter was originally scheduled for a

hearing, but the court issued an order dismissing the petition
prior to the scheduled hearing date.

Ellison appealed the

dismissal of his petition to the NHSC on May 17, 2011, but that
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court declined the appeal and denied Ellison’s motions to
reconsider the declination.
E.

Present Habeas Petition

Petitioner now files the instant petition for a writ of
habeas corpus (doc. nos. 1 and 3) raising the following grounds
for relief:
1.
Denial of Fourteenth Amendment due process rights for
the denial of a hearing on Ellison’s state habeas petition
in March 2011;
2.
Denial of Fifth Amendment right against selfincrimination when state utilized Ellison’s wife to obtain
a confession from him during the pendency of his criminal
trial;
3.
Denial of Fourteenth Amendment due process rights when
the prosecutor allegedly breached the May 2001 negotiated
plea agreement; and
4.
Denial of Sixth Amendment right to the effective
assistance of counsel when Ellison’s attorney failed to
object to the prosecution’s breach of the May 2001
negotiated plea agreement.
Petitioner further asserts that his previous petition in
this court was denied without prejudice due to his failure to
demonstrate exhaustion of his claims, and that he has fully
exhausted his current claims in the state courts.

Ellison

states that any statute of limitations issue regarding the
claims numbered 2-4 herein, is resolved by the fact that he only
became aware in April 2005 that the state court record contained
two forms: a “Notice of Intent to Plead Guilty,” and an
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“Acknowledgement and Waiver of Rights,” signed by Ellison, as
documentary evidence to support his position in this court.
II.

Second or Successive Petition
As noted above, this is Ellison’s second habeas petition

filed in this court.

If a state prisoner wishes to file a

“second or successive” habeas petition under 28 U.S.C. § 2254,
he must follow certain procedures before this court can consider
his claims, pursuant to § 2244(b).

That statute, as amended by

the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (1996), states in
pertinent part:
(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 unless(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
reasonable factfinder would have found the applicant
guilty of the underlying offense.
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(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
application.
Section 2244(b) thus 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.

See id.; 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 decreed that it may go forward.

See Magwood v.

Patterson, 130 S. Ct. 2788, 2796 (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.”).
A “numerically second petition does not necessarily
constitute a ‘second’ petition for the purposes of AEDPA.”
Vasquez v. Parrott, 318 F.3d 387, 389 (2d Cir. 2003) (quotation
omitted).

If a prior petition is not adjudicated on the merits,

a later-filed petition is not deemed second or successive.

See

generally Pratt v. United States, 129 F.3d 54, 60 (1st Cir.
1997) (“if the original petition did not produce an adjudication
on the merits a prisoner’s later petition will not be deemed
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‘second or successive’” (citing cases)).

Furthermore, the

district court may review a second-in-time § 2254 petition,
without prior authorization from the court of appeals, if all of
the claims asserted therein were not ripe and thus could not
have been litigated in the prior petition.

See Restucci v.

Bender, 599 F.3d 8, 10 (1st Cir. 2010) (petition challenging
parole denial was not “second or successive” relative to prior
petition challenging underlying conviction, insofar as claims
were not ripe when prior petition was adjudicated); see also
United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir.), cert.
denied, 132 S. Ct. 342 (2011) (“Prisoners may file second-intime petitions based on events that do not occur until a first
petition is concluded” without being subject to § 2244’s
gatekeeping provisions).
III. Analysis
In the instant petition, Ellison raises one claim
(identified as claim 1 in this order) that arose in 2011, after
his petition in Ellison I was dismissed.

In that claim, Ellison

challenges the March 2011 failure of the state habeas court to
afford him a hearing on his state habeas petition.

If Ellison’s

current petition raised only this claim, the petition would not
be barred as a second or successive petition.

See Restucci, 599

F.3d at 10; see also Magwood, 130 S. Ct. at 2796.
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Ellison’s petition, however, is not limited to the 2011
claim.

In the instant petition, Ellison also asserts three

claims (identified as claims 2-4 in this order) that he raised
in Ellison I.

Contrary to Ellison’s assertion in the instant

petition, Ellison I was not dismissed without prejudice as
unexhausted; the petition was dismissed by an order which ruled
on the merits of at least one claim therein.
(doc. no. 22) (order dismissing petition).

See Ellison I
Accordingly, this

second-in-time petition, filed subsequent to a habeas
application that was dismissed on the merits, is “successive”
under § 2244.

See Burton, 549 U.S. at 156.

Referring to habeas petitions containing both successive
and nonsuccessive claims, some courts have treated this breed of
“mixed” petition as they have petitions containing both
exhausted and unexhausted claims.

See United States v.

Winestock, 340 F.3d 200, 206 (4th Cir. 2003); Pennington v.
Norris, 257 F.3d 857, 858 (8th Cir. 2001).

These courts have

declined to review “mixed” petitions, holding that a district
court presented with a petition containing both successive and
nonsuccessive claims “should afford the prisoner the choice of
seeking authorization from the court of appeals for his second
or successive claims, or of amending his petition to delete
those claims so he can proceed with the claims that require no

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authorization.”

Winestock, 340 F.3d at 205-06 (quoting

Pennington, 257 F.3d at 859) (internal quotation marks omitted).
The Winestock court construed § 2244(b)(3)’s jurisdictional bar
to “extend[] to all claims in the application, including those
that would not be subject to the limits on successive
applications if presented separately.”

Winestock, 340 F.3d at

205; see also Hurley v. Thaler, No. 3-11-CV-2154-0-BD, 2011 WL
6934963, *2 (N.D. Tex. Nov. 22, 2011) (“A ‘mixed-application’
that contains both claims that could have been raised previously
and claims that could not have been so raised is nevertheless
successive” (internal citation omitted)), report and
recommendation adopted by, No. 3:11-CV-2154-0, 2011 WL 6934906
(N.D. Tex. Dec. 28, 2011).

But see Spitznas v. Boone, 464 F.3d

1213, 1217 (10th Cir. 2006) (declining to adopt analysis based
on rules developed in context of exhaustion and instead
directing district courts to address merits of non-successive
claims and to transfer to court of appeals successive claims for
authorization).
The petition here consists of one claim that is not
successive to Ellison I, and three claims that were raised in
and are successive to Ellison I.

The Court finds that, to

comply with the jurisdictional requirements of § 2244(b)(3),
this court should withhold review of any of the claims until

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either the petitioner foregoes his successive claims, or the
First Circuit renders a decision on the reviewability of those
claims.

This approach, endorsed by the Fourth and Eighth

Circuits in Winestock, 340 F.3d at 206, and Pennington, 257 F.3d
at 858, avoids the waste of judicial resources that would occur
in fragmenting the case by sending three claims to the First
Circuit while proceeding to the merits on the remaining, related
claim in the district court.
Because Ellison has neither sought nor obtained the
required authorization from the First Circuit to file this
successive petition, this court lacks jurisdiction to consider
it.

See Magwood, 130 S. Ct. at 2796; Burton, 549 U.S. at 152-

53.

The court therefore grants leave to Ellison to either

forego his successive claims (claims 2-4) and have the court
consider only his nonsuccessive claim (claim 1),4 or to petition
the United States Court of Appeals for the First Circuit for
authorization for the district court to consider the entire
petition, pursuant to 28 U.S.C. § 2244.

In the event Ellison

chooses to keep his petition in this court but elects not to
drop claims 2-4, this court will recommend that the entire

4

At this time, the court makes no finding and intends no
comment as to the timeliness, adequacy of exhaustion, or the
merits, of claim 1.
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petition be dismissed without prejudice to refiling if prior
authorization is obtained from the First Circuit.
Conclusion
For the foregoing reasons, the court directs Ellison to
notify this Court, within thirty days of the date of this order,
whether he intends to forego his three successive claims (claims
2-4) and proceed on his nonsuccessive claim (claim 1), or
whether he intends to seek authorization from the First Circuit
to proceed on his entire petition.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
July 2, 2012
cc:

Tony L. Ellison, pro se

LBM:jba

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