1As petitioner is in custody at the New Hampshire State

Prison (“NHSP”), I construe the sole respondent to be the warden

of that facility. See Habeas Rule 2 (where petitioner is in

custody pursuant to a state judgment, the state officer having

custody of the petitioner shall be named as respondent).

1

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gregory Alan Gaylor

v. Civil No. 08-cv-284-JD

Warden, New Hampshire

State Prison, et al.1

REPORT AND RECOMMENDATION

Pro se petitioner Gregory Alan Gaylor has filed a petition

for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in

which he challenges an order of May 12, 2006 clarifying the

sentence imposed by the New Hampshire state court (document nos.

1 and 4). The petition is before me for preliminary review. See

Rule 4 of the Rules Governing § 2254 Proceedings (“Habeas Rules”)

(requiring initial review to determine whether the petition is

facially valid); see also United States District Court for the

District of New Hampshire Local Rule (“LR”) 4.3(d)(2)

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 1 of 12
2A detailed description of Gaylor’s state court proceedings

is provided in Gaylor v. Warden, No. 04-cv-372-PB, slip op. at 1-

2 (D.N.H. Jan. 24, 2006) and Gaylor v. Bush, et al., 05-cv-339-

PB, slip op. at 1-3 (D.N.H. June 21, 2006).

3While the jury was deliberating, Gaylor fled to

Switzerland. See Gaylor v. Warden, slip op. at 1-2.

2

(authorizing the magistrate judge to preliminarily review pro se

pleadings). For the reasons stated below, I conclude that the

petition is successive and, therefore, recommend that it be

dismissed without prejudice for lack of subject matter

jurisdiction.

Background2

This action arises from Gaylor’s original 1999 conviction

and sentencing on four charges, which were imposed in absentia.3

Three of the charges (469, 471 and 474) were for theft and the

fourth (468) was for tax evasion. See Gaylor v. Bush, et al.,

05-cv-339-PB, slip op. at 1-2 (D.N.H. June 21, 2006). On June

29, 1999, the New Hampshire Superior Court (Merrimack County)

imposed 7-1/2 to 15-year sentences on charges 469 and 471 and 3-

1/2 to 7-year sentences on charges 468 and 474. Id. The

superior court specified that the sentences on charges 469 and

471 were to be concurrent with each other, the sentences on

charges 468 and 469 were to be consecutive to each other, and the

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 2 of 12
4Gaylor filed two previous petitions for federal habeas

corpus relief. The first petition, filed on January 9, 2001, was

dismissed without prejudice for failure to exhaust. See Gaylor

v. Warden, et al., No. 01-cv-013-PB (D.N.H. May 31, 2001). The

second petition, filed on October 5, 2004, was denied as timebarred. See Gaylor v. Warden, No. 04-cv-372-PB, slip op. at 4-19

(D.N.H. Jan. 24, 2006). 

3

sentence on charge 474 was to be consecutive to both the sentence

on charge 468 and the sentence on charge 469. Id. 

Gaylor was later detained in Switzerland. The Swiss

government approved his extradition on the theft charges (469,

471 and 474) but refused his extradition on the tax evasion

charge (468). Id. at 2. Following Gaylor’s extradition, the New

Hampshire Department of Corrections erroneously treated him as if

he had been sentenced to serve concurrent sentences on charges

468, 469 and 471. Consequently, it simultaneously credited him

for “good time” earned on all three sentences even though his

sentence on charge 468 was intended to be consecutive to his

sentence on charge 469. Id.

While his state court appeals were pending, Gaylor filed a

federal petition for habeas corpus relief with this Court on

September 28, 2005 (05-cv-339-PB).4 His federal petition raised

the following claims relevant to this action:

(1) the Department of Corrections violated Article

16(1) of the extradition treaty between Switzerland and

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 3 of 12
5The extradition treaty between Switzerland and the United

States provides in pertinent part that:

[a] person who has been extradited shall not be

detained, proceeded against or sentenced for any

offense committed prior to surrender other than that

for which extradition has been granted . . . unless . .

. that person, after being free to do so, does not

leave the territory of the Requesting State within 45

days or, after leaving, voluntarily returns to it; or

that person, not being free to do so, leaves the

territory of the Requesting State and returns to it.

Extradition Treaty, Nov. 14, 1990, U.S.-Switzerland, Article

16(1), 1990 WL 624655.

4

the United States5 by detaining Gaylor on charge 468

even though he was not extradited on that charge; 

(2) the order of May 2006 rescinded Gaylor’s

confinement credit for sentence 468;

(3) Gaylor served five years of the excluded sentence,

therefore, “re-entry of the same sentence as a

consecutive detainer sentence” violated his Fourteenth

Amendment right to due process and the Fifth Amendment

prohibition against double jeopardy; and

(4) the order of May 2006 created a consecutive

detainer for sentence 468.

On June 21, 2006, this Court (Barbadoro, J.) dismissed the

petition and reasoned: 

Even if I assume that Gaylor is correct in claiming

that the Department of Corrections violated the

extradition treaty, any harm that Gaylor suffered as a

result of the violation was fully addressed by the

state court’s order [of May 12, 2006] granting the

state’s motion to stay the sentence on charge 468. As

it now stands, Gaylor is serving only the sentences on

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5

which he was extradited. He has been given full credit

against these sentences for all time he has served

since his extradition. He cannot be made to serve any

portion of his sentence on charge 468 until he

completes his sentences on the charges for which he was

extradited and is given an opportunity to leave the

United States. He is entitled to nothing more. 

Therefore, his motion to reconsider . . . is denied

and his habeas corpus petition is dismissed. 

Gaylor v. Bush, et al., slip op. at 4.

While Gaylor’s federal petition was pending, the New

Hampshire Superior Court issued an order on May 12, 2006,

granting the state’s motion to stay the imposition of the

sentence on charge 468. Id. The court further ordered that:

(1) Gaylor shall continue to serve his sentences on

charges 469 and 471 and receive appropriate confinement

credit for those charges; (2) Gaylor shall serve the

sentence on charge 474 after he has completed his

sentences on charges 469 and 471; and (3) Gaylor shall

be given 45 days after he completes his sentences on

charges 469, 471 and 474 to leave the United States

before he can be required to serve his sentence on

charge 468.

Id. at 2-3.

On May 23, 2006 the superior court denied Gaylor’s Motion to

Correct Sentence 98-S-474 and Vacate the Consecutive Aspect; it

appears that the superior court further denied his motion to

reconsider on August 25, 2006. On May 31, 2006, Gaylor filed a

petition to vacate the sentencing order in which he raised the

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 5 of 12
6

following claims relevant to this action:

1) the May 2006 sentencing order effectively created a

new sentence for charge 468, thereby converting that

sentence to a consecutive detainer with a minimum

sentence in excess of the statutory maximum; because

the new sentencing order created multiple sentences for

the same offense, the order and new sentence violated

Gaylor’s Fourteenth Amendment right to due process and

the Fifth Amendment prohibition against double

jeopardy;

2) by failing to credit Gaylor for time served since

August 10, 2000, the May 2006 sentencing order and the

new sentence violated his Fourteenth Amendment right to

due process and the Fifth Amendment prohibition against

double jeopardy; and

3) the May 2006 sentencing order rescinded more than

sixty-nine months of confinement credit (regarding

sentence 468) and good conduct credit, in violation of

New Hampshire Revised Statute Annotated (“RSA”) § 651-

A:22 and in violation of Gaylor’ Fourteenth Amendment

right to due process.

The superior court construed the petition as a motion and denied

it on March 16, 2007. The court denied Gaylor’s motion for

reconsideration on April 20, 2007. While the record is not

entirely clear, it appears that on April 26, 2007, Gaylor filed

an appeal with the NHSC, identified as a motion for

reconsideration, which was denied on May 25, 2007.

While the above motions were pending, Gaylor filed a

discretionary appeal with the NHSC on December 1, 2006 in which

he raised the following claim relevant to this action: did the

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 6 of 12
7

May 2006 sentencing order violate Gaylor’s Fourteenth Amendment

right to due process and the Fifth Amendment prohibition against

double jeopardy. The record is unclear as to the NHSC’s

disposition of that appeal.

On May 29, 2007, Gaylor filed an appeal with the New

Hampshire Supreme Court in which he raised the following claims

relevant to this action:

1) did the superior court err by rescinding more than

sixty-nine months of confinement credit and “good time”

credit under RSA 651-A:22;

2) did the superior court err by subdividing sentence

468 into two separate installments when Gaylor had

already served more than sixty-nine months on the

original June 29, 1999 sentence;

3) did the superior court err by creating a new

consecutive detainer sentence with an effective minimum

in excess of the statutory maximum for a class B

felony; and

4) did the resentencing violate Gaylor’s right to due

process and right to be free from double jeopardy.

The NHSP declined his appeal on July 12, 2007.

Gaylor now brings the instant federal petition, challenging

the order of May 12, 2006. I liberally construe his petition to

raise the following four grounds for habeas corpus relief:

(1) the order of May 12, 2006 rescinded more than

sixty-nine months of confinement credit and good

conduct credit, as provided to Gaylor under RSA 651-

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 7 of 12
6With regard to Gaylor’s due process claim, I liberally

construe his invocation of the Fifth Amendment as a reference to

the identical provisions of the Fourteenth Amendment, which

applies to the states. See McSpadden v. Wolfe, Civil Action No.

07-1263, 2008 WL 910010, slip op. at *11 (E.D. Pa. 2008).

8

A:22, in violation of his Fourteenth Amendment right

to due process (Ground One);6

(2) the order of May 2006 failed to credit Gaylor for

time served, in violation of the Fifth Amendment

prohibition against double jeopardy, as made applicable

to the states through the Fourteenth Amendment (Ground

Two);

(3) the order of May 2006 effectively created a new

sentence for charge 468, thereby converting that

sentence to a consecutive detainer with a minimum

sentence in excess of the statutory maximum, in

violation of Gaylor’s Fourteenth Amendment right to due

process (Ground Three); and

(4) the new consecutive detainer for charge 468 may be

called forward indefinitely, in violation of Gaylor’s

Fourteenth Amendment right to due process (Ground

Four).

Standard of Review

In reviewing a pro se petition, this Court must construe the

pleadings liberally, see Ayala Serrano v. Gonzalez, 909 F.2d 8,

15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97, 106

(1976)), treating all well-pleaded factual allegations as true

and drawing all reasonable inferences in the litigant’s favor,

see Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)(explaining

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 8 of 12
9

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. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988).

Discussion

The instant petition, filed on July 15, 2008, is subject to

the provisions of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996)

(April 24, 1996), codified as amended at 28 U.S.C. § 2244 (b). 

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

“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.” Id. at 57 (citing Nunez v. United States, 96 F.3d 990,

991 (7th Cir. 1996)). Thus, before a second or successive

petition may be filed in a federal district court, a habeas

petitioner must move in the appropriate court of appeals for an

order authorizing the district court to consider the petition. 

28 U.S.C. § 2244(b)(3)(A). A district court faced with an

unapproved second or successive petition therefore must either

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 9 of 12
10

dismiss it or transfer it to the appropriate court of appeals. 

See United States v. Barrett, 178 F.3d 34, 40-41 (1st Cir. 1999)

(citing Pratt, 129 F.3d at 57).

Here, Gaylor challenges an order issued by the New Hampshire

state court on May 12, 2006. Gaylor challenged the same order in

a prior federal petition filed with this Court on September 28,

2005; that petition was dismissed. See Gaylor v. Bush, et al.,

05-cv-339-PB, slip op. at 1-3 (D.N.H. June 21, 2006). In the

prior petition, he asserted that (1) the order of May 2006

rescinded his confinement credit for sentence 468; (2) he served

five years of the excluded sentence and that “re-entry of the

same sentence as a consecutive detainer sentence” violated his

Fourteenth Amendment right to due process and the Fifth Amendment

prohibition against double jeopardy, and (3) the order of May

2006 created a consecutive detainer for sentence 468. Thus, it

is clear that the claims raised in the prior petition are similar

to those raised in the instant petition. Because Gaylor’s prior

petition was adjudicated on the merits, his instant petition is

deemed a second or successive petition. Accordingly, he is

required to seek an order from the First Circuit Court of Appeals

authorizing this Court to consider his petition. 28 U.S.C. §

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 10 of 12
11

2244(b)(3)(A). 

Conclusion

For the reasons stated above, I conclude that Gaylor’s

petition is successive and, therefore, recommend that it be

dismissed without prejudice for lack of subject matter

jurisdiction. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the petition. If the

petitioner disagrees with the identification of the claims

herein, he must do so by objection filed within ten (10) days of

receipt of this report and recommendation, or he must properly

move to amend the petition. 

Any further objections 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 Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 11 of 12
12

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

____________________________________

James R. Muirhead 

United States Magistrate Judge

Date: October 8, 2008

cc: Gregory Alan Gaylor, pro se

Case 1:08-cv-00284-JD Document 5 Filed 10/08/08 Page 12 of 12