Opinion
C.A. No. 04-362 S.
October 4, 2004
Gerald M. Brown Pro se, Appellant Counselors.
Christopher R. Bush Esq, Appellee Counselors.
Report and Recommendation
Gerald M. Brown, Jr., ("Brown" or "petitioner"), pro se, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Brown, convicted of sexually molesting his daughter and step-daughter, seeks release from his thirty year term of imprisonment imposed by the state courts. The Attorney General of the State of Rhode Island, designated a party-respondent, has moved to dismiss the petition. Brown has objected. This matter has been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, I recommend that the Attorney General's motion to dismiss be granted. This Court does not have jurisdiction to entertain the instant petition.
Discussion
In January 1991, a Newport County Superior Court jury convicted Brown of three counts of sexual assault and child molestation. The conviction stemmed from his having engaged in sexual intercourse with his daughter and his stepdaughter. Following his conviction, Brown filed a direct appeal with the Rhode Island Supreme Court. See State v. Brown, 626 A.2d 228 (R.I. 1993). He was not successful. Id.
Brown also unsuccessfully filed motions for post conviction relief in the state courts with respect to his conviction. See Brown v. State, 702 A.2d 1171 (R.I. 1997); Brown v. State, 2004 WL 1769145 (R.I.Super., July 21, 2004) (unpublished). Additionally, and more importantly here, Brown has previously filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in this Court. See Brown v. State, C.A. No. 97-665 ML (D.R.I. 1998) (Order issued Aug. 27, 1998, adopting the Findings and Recommendation of U.S. Magistrate Judge Lovegreen, denying Brown's petition for § 2254 relief). Again, he was not successful in his efforts to obtain relief.
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 unless and 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 Brown, authorization must be sought and given by the Court of Appeals. Without such authorization given in this case, this Court cannot consider Brown's application. Accordingly, I recommend that the instant petition for a writ of habeas corpus be dismissed.
Conclusion
For the reasons state above, I recommend that the Attorney General's motion to dismiss be granted. 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).