Castonguay v. Houston, No. 4:2013cv03094 - Document 9 (D. Neb. 2013)
Court Description: MEMORANDUM OPINION that the Court will dismiss Petition for Writ of Habeas Corpus 1 because it is a second or successive habeas corpus petition that has not been authorized by the Eighth Circuit Court of Appeals. The Court will not issue a certificate of appealability in this case. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(ADB)
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Castonguay v. Houston Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA PAUL CASTONGUAY, ) ) Plaintiff, ) ) v. ) ) ROBERT HOUSTON, ) ) Defendant. ) ______________________________) I. 4:13CV3094 MEMORANDUM OPINION INITIAL REVIEW This matter is before the Court on initial review of petitioner Paul Castonguay s Petition for Writ of Habeas Corpus ( Petition ) filed pursuant to 28 U.S.C. § 2254 (Filing No. 1). The Court will dismiss Castonguay s Petition because it is a second or successive habeas corpus petition that has not been authorized by the Eighth Circuit Court of Appeals. The statutory prohibition against successive petitions by state prisoners is codified in 28 U.S.C. § 2244(b), which provides in relevant part: (b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-- Dockets.Justia.com (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by 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. (3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. In Magwood v. Patterson, 130 S. Ct. 2788 (2010), the United States Supreme Court held that the phrase second or successive must be interpreted with respect to the judgment challenged. Id. at 2797. In other words, the phrase second or successive applies to entire habeas petitions, and not to individual claims in those petitions. Id. at 2798. -2- This Court s records reflect that Castonguay s petition is his second in this Court challenging the same judgment. He challenges the conviction of first degree sexual assault obtained in the Douglas County District Court in 2009. (See Filing No. 1 at CM/ECF p. 1.) Petitioner unsuccessfully challenged this same Douglas County conviction in earlier federal habeas corpus litigation. (See Castonguay v. Tecumseh Institution, Case No. 4:11CV03145 (D. Neb.) (dismissing petition with prejudice on April 3, 2012.) The pending petition is a second or successive petition under the statute because it challenges the same Douglas County conviction and sentence already challenged in this Court. The record does not reflect that petitioner has received permission from the Eighth Circuit Court of Appeals to again attack this conviction. If petitioner wishes to continue to pursue this matter, he should file a motion with the Eighth Circuit Court of Appeals fully addressing the legal requirements for successive habeas petitions set forth in 28 U.S.C. § 2244(b). II. CERTIFICATE OF APPEALABILITY A petitioner cannot appeal an adverse ruling of his petition for writ of habeas corpus under § 2254 unless he is granted a certificate of appealability. Fed. R. App. P. 22(b)(1). 28 U.S.C. § 2253(c)(1); A certificate of appealability cannot be granted unless the petitioner has made a substantial showing -3- of the denial of a constitutional right. § 2253(c)(2). 28 U.S.C. To make such a showing, [t]he petitioner must demonstrate that reasonable jurists would find the district court s assessment of the constitutional claims debatable or wrong. Slack v. Daniel, 529 U.S. 473, 484 (2000). In this case, Castonguay has failed to make a substantial showing of the denial of a constitutional right. The Court is not persuaded that the issues raised in the petition are debatable among reasonable jurists, that a court could resolve the issues differently, or that the issues deserve further proceedings. Accordingly, the Court will not issue a certificate of appealability in this case. A separate order will be entered in accordance with this memorandum opinion. DATED this 20th day of June, 2013. BY THE COURT: /s/ Lyle E. Strom ____________________________ LYLE E. STROM, Senior Judge United States District Court * This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the Court has no agreements with any of these third parties or their Web sites. The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court. -4-
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