X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Before Torruella, Boudin and Lipez, Circuit Judges.

William Restucci has filed an application for leave to file a “second or successive” habeas corpus petition pursuant to 28 U.S.C. § 2244(b).*fn1 Restucci, who is currently serving a term of imprisonment for a 1995 voluntary manslaughter conviction in Massachusetts state court, has filed two prior petitions seeking habeas relief under 28 U.S.C. § 2254. In the first, Restucci challenged the constitutionality of his conviction on various grounds, and his claims were denied on the merits. See Restucci v. Spencer, 249 F. Supp.2d 33 (D. Mass. 2003). The second petition, in which Restucci asserted a claim of ineffective assistance of counsel challenging the validity of his conviction, was dismissed sua sponte by the district court as an unauthorized second or successive petition, and we subsequently denied leave to file it, finding that it failed to meet the gatekeeping requirements applicable to such petitions. See 28 U.S.C. § 2244(b).*fn2

In contrast to his previous petitions, the claims Restucci asserts in the instant application do not challenge the validity of the underlying conviction. Instead, his claims arise from the Massachusetts Parole Board’s denial of parole in May 2009 and Restucci’s alleged inability to appeal that denial through the state’s administrative and judicial processes. Although neither we nor the Supreme Court have specifically addressed whether a claim based on the wrongful denial of parole is considered a “second or successive” petition for purposes of 28 U.S.C. § 2244(b), the courts of appeal that have decided the issue have concluded that such a claim is not “second or successive,” and therefore is not subject to the § 2244(b) gatekeeping requirements, if the prisoner did not have an opportunity to challenge the state’s conduct in a prior § 2254 petition. See, e.g., James v. Walsh, 308 F.3d 162, 168 (2d Cir. 2002) (petition alleging miscalculation of conditional prison release date not “second or successive”); Pennington v. Norris, 257 F.3d 857, 858-59 (8th Cir. 2001) (parole denial claim is not a “second or successive” claim). See also Raineri v. United States, 233 F.3d 96, 100 (1st Cir. 2000) (“‘The phrase “second or successive petition” is a term of art,’ designed to avoid abuse of the writ”); In re Cain, 137 F.3d 234, 236-37 (5th Cir. 1998) (concluding that “Congress did not intend for the interpretation of the phrase ‘second or successive’ to preclude federal district courts from providing relief for an alleged procedural due process violation relating to the administration of sentence of a prisoner who has previously filed a petition challenging the validity of the conviction or sentence, but is nevertheless not abusing the writ”). We agree that this is the only sensible reading of the statute; as the Eighth Circuit noted in Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001), interpreting the term “successive” otherwise could foreclose state prisoners from challenging the constitutionality of the execution of their sentences. 251 F.3d at 724-25; see also James, 308 F.3d 162 (noting that 28 U.S.C. § 2254 is broader than 28 U.S.C. § 2255 in that it allows a state prisoner to file a habeas petition on the ground that he is “in custody” in violation of the Constitution or federal law. 28 U.S.C. § 2254(a)).

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

BenefitsPRO Broker Expo 2021

May 18, 2021 - August 18, 2021
Virtual / San Diego, CA

The premier educational and networking event for employee benefits brokers and agents.


Register

African Legal Awards 2021

September 03, 2021
TBD

The African Legal Awards are set out to recognise exceptional achievement from Africa s legal elite.


Register

General Counsel Summit (GCS) 2021

September 07, 2021 - September 08, 2021
Sydney

General Counsel Summit is the premier event for in-house counsel, hosting esteemed legal minds from all sectors of the economy.


Register

NY Personal Injury Attorney Sought for Part-time Web Content Writing

New York, New York, United States

Seeking a plaintiff’s personal injury lawyer fluent in NY state personal injury law. Comprehensive knowledge of the practice of plaint...


Apply Now ›

(NEW) SENIOR COMMERCIAL AGREEMENTS ATTORNEY/CORPORATE COUNSEL WANTED FOR PUBLICLY TRADED COMPANY (Atlanta, GA; Miami, FL; or Roseland, NJ)

Atlanta, Georgia, United States

Our client, a publicly traded provider of Human Capital Management (HCM) solutions, is seeking to hire multiple senior commercial agreements...


Apply Now ›

(IN-HOUSE) DATA PRIVACY & SECURITY COUNSEL FOR PUBLICLY TRADED COMPANY (San Diego, CA)

San Diego, California, United States

Our client, a growing publicly-traded company, has engaged The Partners Group to find its first Data Privacy and Security Counsel (Director ...


Apply Now ›

FLB LAW

08/02/2021
Connecticut Law Tribune


View Announcement ›

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN

07/27/2021
TLI Web

VAN DER VEEN, O NEILL, HARTSHORN, AND LEVIN is pleased to welcome Frank Breitman, Esq. a talented and respected litigator to our ranks of trial lawyers.


View Announcement ›

HARWOOD LLOYD, LLC

07/26/2021
NJLJ Web

HARWOOD LLOYD, LLC Welcomes Beth L. Barnhard, Esq. Beth has joined the firm as Counsel in the Wills, Trusts and Estates Department. She is Certified to be an Elder Law Attorney (CELA) by the ABAaccredited National Elder Law Foundation.


View Announcement ›