United States District Court, D. Massachusetts
ORDER ON MOTION FOR AN EVIDENTIARY HEARING (DOC. NO.
13) AND MOTION TO DISMISS (DOC. NO. 14)
SOROKIN UNITED STATES DISTRICT JUDGE.
Hullum, a prisoner at the Massachusetts Correctional
Institution at Cedar Junction in Walpole, Massachusetts, has
filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Doc. No. I. In his petition, Hullum
levies two challenges to a guilty plea he entered seventeen
years ago. Hullum also requests an evidentiary hearing to
further develop his claims. Doc. No. 13. The respondent has
moved to dismiss the petition, arguing it is a "second
or successive" petition for which Hullum needs, but has
not obtained, permission from the Court of Appeals before
prosecuting in this Court. Doc. No. 14. Because the
respondent is correct and this Court presently lacks
jurisdiction over Hullum's claims, the petition is
dismissed without prejudice.
April 5, 1999, Hullum appeared before the Norfolk County
Superior Court and pled guilty to assault and battery with a
dangerous weapon. Doc. No. 1 at 2-3. He was sentenced to a
term of imprisonment of six months and one day, to run
consecutively to a sentence he then was serving. Id.
at 2. Days later, Hullum filed a pro se motion seeking to
withdraw his guilty plea. See Doc. No. 1-1 at 31.
His motion was denied, the denial was affirmed summarily on
appeal, and the Supreme Judicial Court denied review.
Id. at 31-32; see Commonwealth v. Hullum,
751 N.E.2d 934 (Mass. App. Ct. 2001), appeal denied.
757 N.E.2d 729 (Mass. 2001).
August 2001, Hullum filed a timely federal habeas petition
raising the same claims he had litigated in his state-court
post-conviction proceedings. See Hullum v. Maloney,
No. 01-cv-11414-RWZ, 2002 WL 31112191, at *1 (D. Mass. Sept.
23, 2002); Doc. No. 1 at 3-4. Another session of this Court
denied Hullum's petition on its merits, the First Circuit
affirmed, and the Supreme Court denied certiorari.
Hullum, 2002 WL 31112191, at *1; see Hullum v.
Maloney, 105 F.App'x 278 (1st Cir. 2004), cert,
denied, Hullum v. Dennehy, 543 U.S. 992 (2004).
filed this, his second, federal habeas petition in January
2016. Doc. No. 1. In it, he asserts a breach of his guilty
plea agreement based on an allegation that he bargained for
"a six years from [and] after sentence to run
after" his preexisting twenty-to-thirty-year sentence,
but that prison officials "modified the sentence into an
aggregated sentence" after his plea. Id. at 6.
Hullum also claims that the indictment to which he pled
guilty was defective because the grand jury returned it after
hearing insufficient evidence of an element of the
offense. Id. at 8.
March 2016, Hullum requested an evidentiary hearing "on
the newness and unavailableness" of his claims, citing
28 U.S.C. § 2244(b). Doc. No. 13. In that motion, Hullum
argues that "a breach in a plea agreement is a
miscarriag[e] of Justice and cannot stand, " claims that
he "has pursued his rights diligently" but that
"extraordinary circumstance[s] . . . stood in the
way" of advancing his claims earlier, and urges that the
alleged breach of his plea agreement "could not be
raised until [the Massachusetts Department of Correction]
refused to comply with [the] plea contract."
Id. at 1-2.
respondent moved for dismissal of Hullum's petition based
on his previous federal habeas proceeding and his failure to
seek permission from the Court of Appeals before filing the
instant petition. Doc. Nos. 14, 15. Hullum opposed the motion
to dismiss, citing the Supremacy Clause and various
inapposite decisions of the Supreme Court and the First
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") imposes strict limitations on a state
prisoner's ability to present a "second or
successive habeas corpus application" in federal court.
28 U.S.C. § 2244(b). Claims litigated in previous
federal habeas petitions are subject to immediate dismissal.
§ 2244(b)(1). Claims not previously litigated, but
presented after an earlier federal petition attacking the
same judgment of conviction has been resolved, may be
presented only if strict standards are met and specific
procedures are followed. § 2244(b)(2). In order to
pursue such claims, a prisoner either must demonstrate
reliance "on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable, " or must show
(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
§ 2244(b)(2)(A)-(B) (emphasis added).
addition, and most importantly for present purposes, the
AEDPA requires a prisoner who wishes to pursue such claims to
"move in the appropriate court of appeals for an order
authorizing the district court to consider [a second or
successive] application." § 2244(b)(3)(A).
"Under this paradigm, a second or successive habeas
petition is not a matter of right - and the gatekeeping
function belongs to the court of appeals, not to the district
court." Libby v. Magnusson, 177 F.3d 43, 45
(1st Cir. 1999). "When the AEDPA is in play, the
district court may not, in the absence of proper
authorization from the court of appeals, consider a second or
successive habeas application." Id. at 46;
accord § 2244(b)(4).
First Circuit Local Rules describe the procedure to be
followed by a prisoner who wishes to present a second or
successive habeas petition in this District. Specifically,
the prisoner must file a formal motion for authorization
accompanied by: a standard application form available from
the Court of Appeals "stating the new claim(s) presented
and addressing how Section 2244(b)['s] . . . standard is
satisfied"; and copies of pleadings and decisions
related to previous habeas petitions, and relevant portions
of the state court ...