UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Timothy Dupont

v. Civil No. 08-cv-385-SM

State of New Hampshire

REPORT AND RECOMMENDATION

Timothy Dupont is an inmate in the custody of the New

Hampshire Department of Corrections pursuant to his 2001 New

Hampshire conviction on 69 counts of felonious sexual assault. 

Dupont has filed this petition for a writ of habeas corpus

(document no. 1) 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;

United States District Court District of New Hampshire Local Rule

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

subject matter jurisdiction to consider this matter, and

recommend that the petition be dismissed on that basis.

Standard of Review

Under this Court’s local rules, when an incarcerated

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

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magistrate judge is directed to conduct a preliminary review. LR

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

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 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.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

Dupont has filed this petition for a writ of habeas corpus

challenging the legality of his conviction on a number of

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grounds. Dupont previously filed a petition for a writ of habeas

corpus in this Court challenging the same conviction he is

challenging here. See Dupont v. Coplan, Civ. No. 03-287-SM. 

That petition was resolved against Dupont by Order of the Court

(McAuliffe, C.J.) on August 27, 2003. Dupont attempted an appeal

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

appealability on October 28, 2003. On August 4, 2004, the Court

of Appeals for the First Circuit also denied Dupont a certificate

of appealability, and the appeal was terminated on that date. 

Discussion

Dupont’s current petition was filed on September 17, 2008,

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

provision allocates subject matter jurisdiction to the court of

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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

Dupont’s second habeas petition arising from his present

incarceration for the same underlying criminal matter. Since

Dupont 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 to Dupont seeking 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).

Conclusion

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: February 4, 2009

cc: Timothy Dupont, pro se

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