Brown v. Medieros

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

ANTHONY BROWN, )

)

Petitioner, )

) Civil Action No.

v. ) 17-12503-FDS

)

SEAN MEDEIROS, )

)

Respondent. )

____________________________________)

ORDER AFFIRMING DISMISSAL OF PETITION

AND DENIAL OF CERTIFICATE OF APPEALABILITY

SAYLOR, J.

On May 30, 2018, the Court dismissed petitioner’s petition for failure to prosecute. The

Court then received a motion dated June 7, 2018, requesting that the Court reopen the petition to

determine whether it should be dismissed without prejudice.

On June 29, 2018, the Court granted petitioner an opportunity to show cause why his

petition should be dismissed without prejudice. Petitioner has since filed such a memorandum.

He appears to suggest that a change in Massachusetts substantive law rendered certain habitual-

offender indictments void. See Docket No. 27, at 1 (citing Commonwealth v. Garvey, 477 Mass.

59 (2017)). As the Court has stated multiple times, that was irrelevant to the issues raised in the

habeas petition.

However, even if Garvey were applicable, petitioner’s request is a “second or successive

habeas petition” requiring authorization from the Court of Appeals before filing. See Gonzalez v.

Crosby, 545 U.S. 524, 530-31 (2005) (noting that a motion raising a “subsequent change in

substantive law” is a second petition). Before a second habeas petition is filed, a petition must

“move in the appropriate court of appeals for an order authorizing the district court to consider

the application.” 28 U.S.C. § 2244(b)(3)(A). Petitioner has not sought such an order from the

First Circuit. Accordingly, this Court is without jurisdiction to consider the merits of petitioner’s

argument, and the Court’s prior orders dismissing the action and denying a certificate of

appealability shall stand.

So Ordered.

/s/ F. Dennis Saylor

F. Dennis Saylor IV

Dated: July 18, 2018 United States District Judge