Wescott v. NHSP Warden

2014 DNH 079

• Court: District Court, D. New Hampshire
• Decided: April 22, 2014
• Docket: 14-CV-056-SM
• Status: Published

Opinion

Wescott v. NHSP Warden 14-CV-056-SM 4/22/14 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

2 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.” Gautier v. Wall, 620 F.3d 58,

60 (1st Cir. 2010). 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. See

28 U.S.C. § 2244. 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

3 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