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Hullum v. O'Brien

United States District Court, D. Massachusetts

July 12, 2016

LANCE HULLUM, Petitioner,
CAROL H. O'BRIEN, Respondent.



         Lance 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.[1] 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.

         I. BACKGROUND

         On 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).

         In 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).

         Hullum 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.[2] Id. at 8.

         In 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.

         The 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 Circuit.[3]


         The 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 that:

(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.

§ 2244(b)(2)(A)-(B) (emphasis added).

         In 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).

         The 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 ...

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