Wescott v. NH State Prison, Warden

Filing 7

/// ORDER dismissing without prejudice 1 Petition for Writ of Habeas Corpus. The court declines to issue a certificate of appealability. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard R. Wescott,
Plaintiff
v.

Case No. 14-cv-056-SM
Opinion No. 2014 DNH 079

Richard Gerry, Warden
New Hampshire State Prison,
Defendant
O R D E R
In 1998, Richard Wescott pled guilty to four counts of
aggravated felonious sexual assault.

He was sentenced to serve

ten to thirty years in prison, followed by a consecutive five to
thirty year term.

He filed this action seeking habeas corpus

relief pursuant to 28 U.S.C. § 2254.

The matter is before the

court for preliminary review pursuant to 28 U.S.C. § 1915A.

Section 2254 confers jurisdiction on this court to issue “a
writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court . . . on the ground that he is
in custody in violation of the Constitution or laws or treaties
of the United States.”

28 U.S.C. § 2254(a).

Wescott asserts

that he is in custody in violation of the Fifth, Eighth, and
Fourteenth Amendments.

Specifically, he claims he has served the

maximum sentence that could have been lawfully imposed upon him

for his crimes of conviction and is now being detained without
any lawful basis.

This, however, is not Wescott’s first attempt to obtain
federal habeas relief from what he believes to be an unlawful
state sentence.

Indeed, it is at least the third time he has

petitioned this court for such relief.

See Wescott v. Gerry, No.

09-cv-334-JD, 2009 WL 4341221 (D.N.H. 2009) (“Wescott I”);
Wescott v. Gerry, 10-cv-598-PB, 2011 WL 1578532 (D.N.H. 2011)
(“Wescott II”).

Here, as in those previous petitions, Wescott

challenges the State’s authority to detain him beyond what he
believes to be the maximum term to which he could be lawfully
sentenced.

To the extent the specific challenges he raises in

this petition were not raised before, they could have (and should
have) been asserted in his first habeas petition, which this
court resolved on the merits.

See generally Wescott I.

See also

Wescott II, at *5 (noting that “Wescott’s second petition,
presently before the court, rais[es] arguments that could have
been raised in the first petition, challeng[es] the same
judgment, [and] is therefore ‘successive’ under § 2244.”).

Parenthetically, the court notes that Wescott seems to
believe that if he raises claims that he did not press in earlier
petitions, this petition cannot constitute a “second or

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successive” petition.

He is mistaken.

The bar imposed by 28

U.S.C. § 2244(b)(2) on second or successive petitions applies not
only to claims that were actually raised in a prior petition, but
also to those claims “that could have been properly raised and
decided in a previous petition.”
60 (1st Cir. 2010).

Gautier v. Wall, 620 F.3d 58,

The claims Wescott advances in this petition

plainly could have been raised in his original petition.

And,

none of the limited exceptions set forth in section 2244
permitting successive petitions, e.g., a new rule of
constitutional law; undiscovered factual predicate to claim; or
actual innocence - applies to excuse Wescott’s failure to press
his current claims in his original petition.

See generally 28

U.S.C. § 2244(b)(2).

Conclusion
Wescott’s current petition for habeas relief, like the one
before it, constitutes a “second or successive” petition.
28 U.S.C. § 2244.

See

Consequently, this court lacks jurisdiction to

address his claims, absent permission by the United States Court
of Appeals for the First Circuit.

Wescott’s petition (document no. 1) is dismissed, without
prejudice to his ability to seek authorization to file the

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petition from the United States Court of Appeals for the First
Circuit.

See 28 U.S.C. § 2244(b)(3)(A).

The court declines to issue a certificate of appealability,
but petitioner may seek a certificate from the Court of Appeals
under Federal Rule of Appellate Procedure 22.

See Rule 11,

Federal Rules Governing Section 2254 Proceedings.

The Clerk of

Court shall enter judgment in accordance with this order and
close the case.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
April 22, 2014
cc:

Richard R. Wescott, pro se

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