United States District Court, D. Massachusetts
LARRY D. WAMPLER, JR., formerly known as HUNG TAN VO, Petitioner,
BRAD COHEN, Superintendent, Massachusetts Correctional Institution, Norfolk, Respondent.
MEMORANDUM AND ORDER
SOROKIN UNITED STATES DISTRICT JUDGE
reasons stated below, the Court orders that this action be
dismissed without prejudice.
se petitioner Larry D. Wampler, Jr., who is incarcerated
at MCI Norfolk, has filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 (“§
2254”). Wampler challenges his 1992 conviction by a
jury of first-degree murder, for which he received a
mandatory life sentence. He maintains that his rights under
the Sixth and Fourteenth amendments to the United States
Constitution were violated when his trial counsel failed to
convey to him, prior to the commencement of trial, that the
prosecutor had offered four different plea bargains.
petition has not been served pending the Court's
preliminary review of the action. A district court is not
obligated to require a respondent to answer a habeas petition
if “it appears from the application [for a writ of
habeas corpus] that the applicant . . . is not entitled [to
the writ].” 28 U.S.C. § 2243 para 1.
prisoner “in custody pursuant to the judgment of a
State court” may seek federal review of the validity of
his confinement by filing a petition for a writ of habeas
corpus under § 2254. 28 U.S.C. § 2254(a). However,
a state prisoner seeking relief under § 2254 must comply
with the gatekeeping requirements of 28 U.S.C. § 2244(b)
(“§ 2244(b)”). This statute establishes a
procedure a prisoner must follow if he wishes to file a
“second or successive” habeas corpus petition
challenging the validity of his confinement. Before “a
second or successive application [under § 2254] is filed
in the district court, the applicant shall move in the 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). The Court notes that Wampler is aware of
this requirement, the First Circuit having once denied his
request for permission to file a second or successive §
2254 petition. See Wampler v. Spencer, No. 06-1443
(1st Cir.). Where a litigant brings a second or successive
§ 2254 petition in the district court without having
obtained leave to do so from the court of appeals, the
district court is without jurisdiction to entertain the
petition. See Burton v. Stewart, 549 U.S. 147, 157
present petition is a “second or successive”
habeas petition within the meaning of § 2244(b). He
filed a § 2254 petition in this Court in 1998,
challenging the validity of the same conviction at issue in
the present action. See Vo v. Maloney, C.A. No.
98-12499-RWZ (D. Mass.). Adopting the Magistrate Judge's
Report and Recommendation, Judge Zobel denied the petition on
September 8, 2000 on the merits, see id. (#25), and
the First Circuit affirmed, see id.
this action presents a second or successive § 2254
petition, the Court lacks jurisdiction over the matter unless
Wampler has requested and received permission from the United
States Court of Appeals for the First Circuit. He does not
indicate that he has received said permission, and the
Court's review of the Federal Judiciary's PACER
(Public Access to Court Electronic Records) system does not
show that he has met this gatekeeping requirement.
this action is DISMISSED WITHOUT PREJUDICE for lack of