UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Weston J. Stow

v. Civil No. 06-cv-378-PB

Bruce Cattell, Warden,

New Hampshire State Prison

REPORT AND RECOMMENDATION

Weston Stow is an inmate in the custody of the New Hampshire

Department of Corrections pursuant to his 1990 New Hampshire

conviction for sexual assault and kidnapping. Stow 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 Cases in the United States

District Courts and Local Rule (“LR”) 4.3(d). As discussed

below, I find that this court lacks subject matter jurisdiction

and 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

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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

Stow is serving a forty to eighty year sentence at the New

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

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habeas corpus challenging the legality of his conviction and

sentence on a number of grounds. 

Stow previously filed a petition for a writ of habeas corpus

in this Court challenging the same conviction and sentence as he

is challenging here. See Stow v. Prison Warden, Civ. No. 02-064-

JD. That petition was resolved against him by Order of the Court

(DiClerico, J.) on March 13, 2003. Stow attempted an appeal of

this Court’s decision, but was denied a certificate of

appealability on June 9, 2004. The appeal was terminated on that

date. 

Discussion

Stow’s current petition was filed on October 12, 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

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

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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 federal

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 Stow’s

second habeas petition arising from his present incarceration for

the same underlying criminal matter. Since Stow did not first

obtain clearance from the First Circuit Court of Appeals before

filing this petition, this Court has no jurisdiction to consider

this petition, and I recommend that it be dismissed without

prejudice so Stow may seek the necessary clearance to pursue

another habeas petition in this Court. See 28 U.S.C. §

2244(b)(3); see also Pratt, 129 F.3d at 57 (finding district

court without jurisdiction to consider successive habeas

petitions absent prior Circuit approval).

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

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file objections 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: October 31, 2006

cc: Weston J. Stow, pro se

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