UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Harvey Pratt

v. Civil No. 06-cv-291-PB

State of New Hampshire, et al.

REPORT AND RECOMMENDATION

Harvey Pratt is an inmate in the custody of the New

Hampshire Department of Corrections pursuant to his 2001 New

Hampshire conviction for interference with custody. Pratt has

filed this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. The petition is before me for preliminary review. 

See Rule 4 of the Rules Governing § 2254 Proceedings and Local

Rule (“LR”) 4.3(d). As discussed below, I find that this court

lacks subject matter jurisdiction and I recommend that the matter

be dismissed.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review.

LR 4.3(d)(2). In conducting the preliminary review, the Court

Case 1:06-cv-00291-PB Document 6 Filed 09/18/06 Page 1 of 5
2

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

Pratt is serving a two to six year sentence at the New

Hampshire State Prison. He has filed this petition for a writ of

Case 1:06-cv-00291-PB Document 6 Filed 09/18/06 Page 2 of 5
3

habeas corpus seeking declaratory and injunctive relief for an

alleged miscalculation of his maximum release date.

Pratt has previously filed a petition for a writ of habeas

corpus in this Court. See Pratt v. Warden, N. N.H. Corr.

Facility, Civ. No. 05-291-JD. That petition was resolved against

him by Order of the Court (DiClerico, J.) on May 23, 2006. An

appeal was taken to the First Circuit Court of Appeals where it

is still pending. The petition before me, pertaining to the same

incarceration, raises new grounds for relief based on the alleged

unconstitutionality of New Hampshire’s sentencing statute and the

allegedly unconstitutional execution of Pratt’s sentence by the

New Hampshire Department of Corrections.

Discussion

The instant petition was filed on August 4, 2006, which

makes it subject to the provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244. 

See Pratt v. United States, 129 F.3d 54, 56, 58 (1st Cir. 1997). 

AEDPA requires approval of the Circuit Court of Appeals before a

second or successive habeas corpus petition made pursuant to 28

U.S.C. § 2254 may be filed in a federal district court, even if

the petition raises new factual grounds for relief. See 28

Case 1:06-cv-00291-PB Document 6 Filed 09/18/06 Page 3 of 5
4

U.S.C. § 2244(b)(3); Rodriguez v. Superintendent, Bay State Corr.

Ctr., 139 F.3d 270, 272 (1st Cir. 1998). AEDPA’s prior approval

provision allocates subject matter jurisdiction to the court of

appeals by stripping the district court of jurisdiction over a

second or successive habeas petition unless and until the court

of appeals has decreed that it may go forward. See Pratt, 129

F.3d at 57 (citing Nunez v. United States, 96 F.3d 990, 991 (7th

Cir. 1996)). A district court must, therefore, either dismiss

without prejudice or transfer to the court of appeals an

unapproved second or successive habeas petition. See id.

I find that the instant petition for habeas corpus is

Pratt’s second habeas petition arising from his present

incarceration for the same underlying criminal matter. 

Petitioner has not sought or obtained clearance from the First

Circuit Court of Appeals in advance of filing the instant

petition, as required by 28 U.S.C. § 2244(b)(3). Consequently,

this Court has no jurisdiction to consider this petition. See

Pratt, 129 F.3d at 57. I therefore recommend that the petition

be dismissed without prejudice so that Pratt may seek clearance

from the First Circuit Court of Appeals to pursue another habeas

petition in this Court. 

Case 1:06-cv-00291-PB Document 6 Filed 09/18/06 Page 4 of 5
5

Any objection to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

an objection within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law 

Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 18, 2006

cc: Harvey Pratt, pro se

Case 1:06-cv-00291-PB Document 6 Filed 09/18/06 Page 5 of 5