United States Court of Appeals

For the First Circuit

No. 09-2411

JACQUES GAUTIER,

Petitioner, Appellant,

v.

ASHBEL T. WALL, ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Thompson, Circuit Judges.

Jacques Gautier, Memorandum in Support of a Certificate of

Appealability pro se.

September 16, 2010
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Per Curiam. Jacques Gautier could have filed one habeas

petition raising all of his claims after "exhaust[ing] the remedies

available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A).

Instead, he "twice brought claims contesting the same custody

imposed by the same judgment of a state court." Burton v. Stewart,

549 U.S. 147, 154 (2007) (per curiam). His second such petition

was "second or successive" under 28 U.S.C. § 2244(b). It should

not have been filed without our authorization. For the reasons

explained below, we direct the district court to dismiss the

petition for lack of jurisdiction.

I

Gautier was charged with, among other offenses, first-degree

murder and burglary. Before trial, he moved to dismiss the murder

count, claiming that the State of Rhode Island was collaterally

estopped from bringing the charge. The motion was denied. The

state supreme court affirmed the ruling, clearing the way for the

murder prosecution. State v. Gautier, 871 A.2d 347, 349 (R.I.

2005). 

Gautier was convicted of the lesser-included offenses of

second-degree murder and breaking and entering. In January 2006,

he received a life sentence for the former and a concurrent tenyear sentence for the latter. Two months later, as his appeal to

the state supreme court was about to be docketed, Gautier filed a

28 U.S.C. § 2254 petition raising a claim of collateral estoppel.
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It was the first and only claim he had exhausted. At the State's

motion, the district court adjudicated the petition and dismissed

it with prejudice. This court denied a certificate of

appealability.

In June 2008, the state supreme court affirmed the

convictions. State v. Gautier, 950 A.2d 400 (R.I. 2008). Gautier

filed a second habeas petition rehashing the adjudicated claim and

raising several claims of error within the trial itself, some of

them newly exhausted. The State moved to dismiss the entire filing

as an unauthorized "second or successive" petition; the district

court agreed only as to the rehashed claim. "[T]he other grounds

presented in the Petition," it stated, "were not ripe for

consideration when the 2006 Petition was filed . . . . Because the

procedural posture of Gautier's state court case has substantially

changed between 2006 and 2008, the pending Petition is not an

impermissible 'second or successive' Petition." The court denied

seven of the new grounds and dismissed the eighth without

prejudice, finding it unexhausted. Gautier asks this court for a

certificate of appealability. The real issue is, as it were,

petitionability. 

II

The phrase "second or successive" "takes its full meaning from

[the Supreme Court's] case law, including decisions predating the

enactment of the Antiterrorism and Effective Death Penalty Act of
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1996 (AEDPA)." Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007).

Ever since Rose v. Lundy, 455 U.S. 509, 520 (1982), habeas

petitioners have been encouraged to take each of their claims to

state court before bringing any claims to federal court. Those

with unexhausted as well as exhausted claims "may proceed with only

the exhausted claims, but doing so risks subjecting later petitions

that raise new claims to rigorous procedural obstacles." Burton,

549 U.S. at 154 (citing Lundy, 455 U.S. at 520-21 (plurality

opinion)). In AEDPA terms, a later petition may be second or

successive, and so face restrictions under the "modified res

judicata rule" in § 2244(b), Felker v. Turpin, 518 U.S. 651, 664

(1996), if it advances claims that could have been properly raised

and decided in a previous petition. Cf. United States v. Barrett,

178 F.3d 34, 42-45 (1st Cir. 1999).

Gautier's new petition is second or successive. Our remarks

are brief: the Supreme Court has explained the "precise practice"

(and legal analysis) that "gover[n] in circumstances such as

[these]." Burton, 549 U.S. at 153. Burton challenged his

conviction while state review of his revised sentence was pending.

At the conclusion of direct review, he filed a second petition

attacking the sentence. The Supreme Court found "no basis in our

cases for supposing, as the Ninth Circuit did, that a petitioner

with unexhausted claims . . . who elects to proceed to adjudication

of his exhausted claims[,] may later assert that a subsequent
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petition is not 'second or successive' precisely because his new

claims were unexhausted at the time he filed his first petition."

Id. at 154. "This reasoning conflicts with both Lundy and

§ 2244(b) and would allow prisoners to file separate habeas

petitions in the not uncommon situation where a conviction is

upheld but a sentence is reversed." Id. (It, we might add, would

allow claim-splitting whenever the claims have been exhausted in

different stages, e.g., some after direct review and others at the

conclusion of post-conviction proceedings.) "Such a result would

be inconsistent with both the exhaustion requirement, with its

purpose of reducing 'piecemeal litigation,' and AEDPA, with its

goal of 'streamlining federal habeas proceedings.'" Id. (citations

omitted).

Burton casts a long shadow over repeat petitioners who, with

better timing, could have consolidated their claims in one fully

exhausted petition. Gautier falls into this camp. Once his

criminal "judgment became final by the conclusion of direct

review," § 2244(d)(1)(A), he could have filed one petition raising

all of his claims. Burton, 549 U.S. at 156-57; cf. Mathis v.

Thaler, ___ F.3d ___, 2010 WL 3278609, at *7-8 (5th Cir. Aug. 20,

2010) (consolidation in one petition possible with post-conviction

tolling under 28 U.S.C. § 2244(d)(2)); In re Davis, 565 F.3d 810,

820-21 (11th Cir. 2009) (similar). He instead split his claims

between petitions. 
We do not deal here with claims that "are not ripe until 1

after the time has run to file a first federal habeas petition."

Panetti v. Quarterman, 551 U.S. 930, 943 (2007). Cf. id. at 947

(recognizing an "exceptio[n]" to AEDPA's "second or successive" bar

for an application raising a Ford competency-to-be-executed claim

that would have been unripe had the petitioner presented it in his

first application); Leal Garcia v. Quarterman, 573 F.3d 214, 222

(5th Cir. 2009) (if "the purported defect did not arise, or the

claim did not ripen, until after the conclusion of the previous

petition, the later petition based on that defect may be

non-successive"). Nor do we address the case where state court

delay in deciding the unexhausted claim threatens to deprive the

petitioner of meaningful habeas review. 

See 28 U.S.C. § 2244(b)(1) ("A claim presented in a second or 2

successive habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed.");

§ 2244(b)(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--(A) the applicant

shows that the claim relies on a new rule of constitutional law,

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"The prisoner's principal interest, of course, is in obtaining

speedy federal relief on his claims." Lundy, 455 U.S. at 520

(plurality opinion). If the first-exhausted claims are strong and

the sentence short, who can gainsay a decision to proceed? For the

typical petitioner, however, the lesson of Burton is to avoid

filing two petitions where one would do.1

III

The district court lacked jurisdiction to consider Gautier's

second or successive petition without our authorization. See

Burton, 549 U.S. at 152; 28 U.S.C. § 2244(b)(3)(A). Treated as a

motion for an order so authorizing the district court, the

application for a COA must be denied. Not one of Gautier's claims

meets the gatekeeping requirements of § 2244(b). The entire 2
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.").

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second petition would have to be dismissed.

The judgment of the district court is vacated. In its place,

the court shall enter a judgment of dismissal for lack of

jurisdiction. This appeal is terminated.