United States Court of Appeals
For the First Circuit
No. 09-2271
WILLIAM RESTUCCI,
Petitioner,
v.
JAMES R. BENDER, Commissioner of Correction,
Respondent.
APPLICATION FOR PERMISSION TO FILE A SECOND
OR SUCCESSIVE HABEAS CORPUS PETITION
Before
Torruella, Boudin and Lipez,
Circuit Judges.
William Restucci pro se.
Carmen Ortiz, United States Attorney, and Annette C.
Benedetto, Assistant United States Attorney.
March 15, 2010
Per Curiam. William Restucci has filed an application
for leave to file a "second or successive" habeas corpus petition
pursuant to 28 U.S.C. § 2244(b).1 Restucci, who is currently
serving a term of imprisonment for a 1995 voluntary manslaughter
conviction in Massachusetts state court, has filed two prior
petitions seeking habeas relief under 28 U.S.C. § 2254. In the
first, Restucci challenged the constitutionality of his conviction
on various grounds, and his claims were denied on the merits. See
Restucci v. Spencer, 249 F. Supp.2d 33 (D. Mass. 2003). The second
petition, in which Restucci asserted a claim of ineffective
assistance of counsel challenging the validity of his conviction,
was dismissed sua sponte by the district court as an unauthorized
second or successive petition, and we subsequently denied leave to
file it, finding that it failed to meet the gatekeeping
requirements applicable to such petitions. See 28 U.S.C. §
2244(b).2
1
Petitioner has also filed a motion in which he appears to
request that his state criminal case be "transferred" to federal
court under 28 U.S.C. § 2254. Although it is framed differently,
the motion appears to seek leave of this court to file a § 2254
petition asserting the same claims described in the initial
application. Accordingly, it is essentially duplicative and does
not require separate consideration.
2
Pursuant to 28 U.S.C. § 2244(b)(2), a litigant may not file
a second or successive § 2254 petition unless:
(A) the applicant shows that the claim relies
on a new rule of constitutional law, made
retroactive to cases on collateral review by
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In contrast to his previous petitions, the claims
Restucci asserts in the instant application do not challenge the
validity of the underlying conviction. Instead, his claims arise
from the Massachusetts Parole Board's denial of parole in May 2009
and Restucci's alleged inability to appeal that denial through the
state's administrative and judicial processes. Although neither we
nor the Supreme Court have specifically addressed whether a claim
based on the wrongful denial of parole is considered a "second or
successive" petition for purposes of 28 U.S.C. § 2244(b), the
courts of appeal that have decided the issue have concluded that
such a claim is not "second or successive," and therefore is not
subject to the § 2244(b) gatekeeping requirements, if the prisoner
did not have an opportunity to challenge the state's conduct in a
prior § 2254 petition. See, e.g., James v. Walsh, 308 F.3d 162,
168 (2d Cir. 2002) (petition alleging miscalculation of conditional
prison release date not "second or successive"); Pennington v.
the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if
proven and viewed in light of the evidence as
a whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
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Norris, 257 F.3d 857, 858-59 (8th Cir. 2001) (parole denial claim
is not a "second or successive" claim). See also Raineri v. United
States, 233 F.3d 96, 100 (1st Cir. 2000) ("'The phrase "second or
successive petition" is a term of art,' designed to avoid abuse of
the writ"); In re Cain, 137 F.3d 234, 236-37 (5th Cir. 1998)
(concluding that "Congress did not intend for the interpretation of
the phrase 'second or successive' to preclude federal district
courts from providing relief for an alleged procedural due process
violation relating to the administration of sentence of a prisoner
who has previously filed a petition challenging the validity of the
conviction or sentence, but is nevertheless not abusing the writ").
We agree that this is the only sensible reading of the statute; as
the Eighth Circuit noted in Crouch v. Norris, 251 F.3d 720 (8th
Cir. 2001), interpreting the term "successive" otherwise could
foreclose state prisoners from challenging the constitutionality of
the execution of their sentences. 251 F.3d at 724-25; see also
James, 308 F.3d 162 (noting that 28 U.S.C. § 2254 is broader than
28 U.S.C. § 2255 in that it allows a state prisoner to file a
habeas petition on the ground that he is "in custody" in violation
of the Constitution or federal law. 28 U.S.C. § 2254(a)).
In this case, since Restucci's current claims arose well
after his prior habeas petitions and application for leave to file
a second or successive petition seeking review of his state court
conviction were denied, he could not have raised them in the
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earlier petitions; we therefore conclude, and the State agrees,
that the claims are not "successive" for purposes of § 2244(b).
Accordingly, petitioner does not require authorization from this
court prior to filing his parole-based claims in federal district
court.
The application is dismissed as unnecessary with leave to
re-file in the district court.
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