Avery, S r . v. NH DOC

2008 DNH 041

• Court: District Court, D. New Hampshire
• Decided: February 20, 2008
• Docket: 92-CV-292-SM
• Status: Published

Opinion

Avery, S r . v . NH DOC 92-CV-292-SM 02/20/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Clifford E . Avery, Sr., Petitioner

v. Civil N o . 92-cv-262-SM Opinion N o . 2008 DNH 041 Commissioner of the New Hampshire Department of Corrections, Respondent

O R D E R

Petitioner, Clifford E . Avery, has filed what he styles as a

“motion to set aside void order,” in which he asks the court to

vacate its judgment, entered in 1993, denying his petition for

federal habeas corpus relief with respect to his 1973 state

murder conviction. Avery v . N.H. Dep’t of Corrections, Case N o .

92-cv-262, slip o p . (D.N.H. Sept. 2 9 , 1993). Avery emphasizes

that his motion “does not seek to vacate Plaintiff’s state court

conviction but only this court’s order dismissing his first

federal habeas corpus petition due to a fundamental defect in the

court’s habeas proceedings integrity.” Accordingly, he points to

Fed. R. Civ. P. 60(b)(4) as authority for vacating the 1993

habeas judgment, and consciously does not invoke the provisions

of 28 U.S.C. § 2254. On September 2 9 , 1993, petitioner’s first habeas petition

was denied. An opinion was issued explaining the court’s

analysis leading to that decision. Avery, supra. Judgment was

entered on December 1 4 , 1993. That decision was affirmed on

appeal. Avery v . Commissioner, 32 F.3d 561 (1st Cir. 1994)

(Table).

Subsequently, Avery filed another petition for habeas corpus

relief in this court challenging that same conviction (apparently

after filing an unsuccessful application for leave to file a

second or successive petition in the United States Court of

Appeals for the First Circuit). See Avery v . Wall, N o . 06-cv-

448-SM, Petition for a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 or in the Alternative the All Writs Act 28 U.S.C.

§ 1651 (document n o . 1 ) . In that petition Avery claimed, again,

that his state murder conviction was void and his imprisonment

unconstitutional because, among other things, his state murder

case was brought under a statute which had been repealed.

Consequently, said Avery, his conviction was not valid under any

applicable criminal statute. That petition was necessarily

dismissed, by order dated December 2 1 , 2006, as a second or

successive petition for federal habeas relief that the district

court had not been authorized to consider. See 28 U.S.C. §

2 2244(b)(3)(A). Again petitioner sought appellate relief, and

again it was denied when the Court of Appeals entered judgment on

November 3 0 , 2007, denying petitioner’s request for a certificate

of appealability “[e]ssentially for the reasons given by the

district court in its order, dated December 2 1 , 2006.” (The

Court of Appeals also denied petitioner’s motion to recuse the

appellate judges from considering his request.) Avery v . Wall,

N o . 07-1405 (1st Cir. November 3 0 , 2007).

The current motion, ostensibly filed under Fed. R. Civ. P.

60(b)(4), by its terms again seeks to have this court’s original

judgment denying habeas relief (in 1993) vacated. And, once

again, petitioner asserts that the federal habeas judgment was

void for lack of jurisdiction because his underlying state court

conviction was void for various reasons, particularly that the

state indictment was based upon a criminal statute that had been

repealed at the time the indictment issued. In other words,

petitioner is asserting that the 1993 federal habeas judgment

should be vacated because his state conviction is void and his

state imprisonment unconstitutional, thus this court was without

personal or subject matter jurisdiction over him or his habeas

petition in 1993.

3 Plainly, the motion under Rule 60(b)(4) i s , in substance and

reality, a not very well disguised effort to obtain federal

habeas relief in the nature of a ruling that his state murder

conviction and sentence are unconstitutional. As the Court of

Appeals for the First Circuit has made clear, a Rule 60(b) motion

that principally challenges the constitutionality of a habeas

petitioner’s underlying conviction should be treated as a second

or successive habeas petition under the Antiterrorism and

Effective Death Penalty Act (AEDPA), Pub. L . N o . 104-132, 110

Stat. 1214 (1996). See Rodwell v . Pepe, 324 F.3d 6 6 , 70 (1st

Cir. 2003) (“When the motion’s factual predicate deals primarily

with the constitutionality of the underlying . . . conviction or

sentence, then the [Rule 60(b)] motion should be treated as a

second or successive habeas petition.”) Here, the factual

predicate urged by petitioner as grounds for vacating the 1993

habeas judgment is his claim that federal jurisdiction was

lacking because his state conviction was void and his

imprisonment unconstitutional. The motion, then, principally

challenges the constitutionality of his underlying conviction.

As the Rule 60(b) motion is properly treated as a second or

successive habeas petition, this court is without jurisdiction to

consider i t , absent prior authorization by the United States

4 Court of Appeals for the First Circuit, which authorization has

not been granted, and which petitioner has apparently not sought.

See 28 U.S.C. § 2244(b)(3)(A); United States v . Barrett, 178 F.3d

34 (1st Cir. 1999).

Although the petition could be transferred to the United

States Court of Appeals for the First Circuit for consideration

as an application for leave to file a successive petition, see 28

U.S.C. § 1631, transfer is not mandated. Because petitioner has

raised identical issues previously, and the Court of Appeals has

either already resolved them or has declined to authorize

consideration of a successive petition in which those issues were

sought to be raised, this petition will be dismissed for lack of

jurisdiction.

Conclusion

The motion ostensibly filed under the provisions of Fed. R.

Civ. P. 60(b) is a successive petition for federal habeas relief

relative to petitioner’s state murder conviction. That petition

is necessarily dismissed for lack of jurisdiction to consider i t ,

5 authorization to do so not having been granted by the United

States Court of Appeals for the First Circuit.1

SO ORDERED.

Steven J./McAuliffe :hief Judge

February 2 0 , 2008

cc: United States Attorney - NH Clifford E . Avery, Sr., pro se

1 Petitioner also filed a motion seeking recusal of all the judges of this district from considering this matter, for various reasons with respect to each judge (with the exception of Judge Laplante, who is newly appointed). That motion is denied without prejudice to renewing it should the Court of Appeals authorize the district court to consider his second or successive petition (or determine that the motion for relief under Rule 60(b) is not properly construed as a successive petition).