Opinion
C.A. No. 03-445 ML
October 23, 2003
Report and Recommendation
This matter is before the Court on the application of Clifford E. Avery ("Avery" or "petitioner") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 1651. Avery, housed in Rhode Island, seeks to challenge his 1975 conviction of murder in the New Hampshire state courts. After a review of the instant petition, I find that it should be sua sponte dismissed, and so recommend. My reasoning follows.
Discussion
In May 1975, a New Hampshire state court jury convicted Avery of murder and the Court sentenced him to serve eighteen years to life incarcerated. Following his conviction, Avery filed a direct appeal with the New Hampshire state courts, filed motions for post conviction relief in those courts, and filed petitions for habeas relief in the U.S. District Court in New Hampshire. See State v. A very, 490 A.2d 1350 (N.H. 1985); Avery v. Cunningham, 551 A.2d 952 (N.H. 1988); Avery v. Commissioner of the N.H. Dep't of Corrections, 32 F.3d 561 (1st Cir. 1994) (unpublished).
In the instant petition, Avery contends that in July 2003 he filed a motion in the Court of Appeals for the First Circuit, inviting the Court to authorize the District Court to consider yet another petition for federal habeas relief. See Petition, at i, ¶ 1; see also 28 U.S.C. § 2244(b)(3)(A). Petitioner contends that the Court of Appeals declined the invitation on September 17, 2003.See Petition, at i, ¶ 1. Nonetheless, Avery has proceeded to this Court seeking habeas relief pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 1651.
Title 28, United States Code § 2244(b)(3)(A) provides, in pertinent part:
Before a second or successive application [for federal habeas relief] . . . 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.28 U.S.C. § 2244(b)(3)(A). This provision allocates subject matter jurisdiction to the court of appeals by stripping the district court of jurisdiction over a successive or second habeas petition unlessand until the court of appeals has decreed that it may go forward. Pratt v. United States, 129 F.3d 54, 55-57 (1st Cir. 1997); see also Felker v. Turpin, 518 U.S. 651 (1996). Therefore, before this Court may consider any further petitions for federal habeas relief filed by Avery, authorization must be sought and given by the Court of Appeals. Without such authorization given in this case, this Court cannot consider Avery's application. Accordingly, I recommend that the instant petition for federal habeas relief be dismissed.
Conclusion
For the reasons state above, I recommend that Avery's petition for a writ of habeas corpus be dismissed. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).