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Wampler v. Cohen

United States District Court, D. Massachusetts

May 16, 2018

LARRY D. WAMPLER, JR., formerly known as HUNG TAN VO, Petitioner,
v.
BRAD COHEN, Superintendent, Massachusetts Correctional Institution, Norfolk, Respondent.

          MEMORANDUM AND ORDER

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE

         For the reasons stated below, the Court orders that this action be dismissed without prejudice.

         I. BACKGROUND

         Pro 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.

         The 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.

         II. DISCUSSION

         A 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).[1] 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 (2007).

         Wampler's 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.).[2] 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. (#30).[3]

         Because 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.

         III. CONCLUSION

         Accordingly, this action is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.

         SO ORDERED.

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