United States District Court, W.D. Wisconsin
DEMETRIUS M. BOYD, Petitioner,
GARY BOUGHTON, Respondent.
WILLIAM M. CONLEY District Judge.
Demetrius M. Boyd seeks a writ of habeas corpus under 28
U.S.C. § 2254, claiming that his conviction violated the
double jeopardy clause of the Constitution. After conducting
a preliminary review of the petition pursuant to Rule 4 of
the Rules Governing Section 2254 Cases, the court concludes
that this case must be dismissed for lack of subject matter
was charged in Wisconsin state court with a number of crimes
involving four victims. After trial, Boyd was convicted of
twenty crimes: three counts of armed robbery with threat of
force, as a party to a crime and as a habitual criminal;
taking a vehicle without the owner's consent and in
possession of a dangerous weapon, as a party to a crime and
as a habitual criminal; unlawfully possessing a firearm as a
convicted felon, as a habitual criminal; unlawfully
possessing a short-barreled shotgun, as a habitual criminal;
operating a vehicle without the owner's consent, as a
habitual criminal; battery; unlawfully and intentionally
pointing a firearm at another person; resisting or
obstructing a law enforcement officer; and ten counts of
felony bail jumping, as a habitual criminal. He was sentenced
to forty-one years and nine months of confinement and eleven
years of extended supervision.
April 27, 2012, Boyd filed a petition for writ of habeas
corpus pursuant to § 2254 in the Eastern District of
Wisconsin. In it, Boyd asserted five grounds for relief: one
double jeopardy claim and four ineffective assistance of
trial counsel claims. On August 1, 2014, the court denied
each of his arguments on the merits in a 25-page opinion.
Boyd v. Boughton, No. 12-cv-388, dkt. #39 (E.D. Wis.
Aug. 1, 2014.) The Seventh Circuit Court of Appeals affirmed
the district court's denial on August 14, 2015. Boyd
v. Boughton, 798 F.3d 490 (7th Cir. 2015).
current petition, Boyd is challenging his sentence on the
basis that it violates the double jeopardy clause of the
Constitution because he was prosecuted after the state caused
a mistrial. Boyd's petition is governed by the
Antiterrorism and Effective Death Penalty Act (the
“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
which was enacted on April 24, 1996. Under the AEDPA, any
“second or successive application” for habeas
relief must be authorized by the court of appeals.
See 28 U.S.C. § 2244(b)(3)(A). Numerically,
second filings trigger the prohibition against
second-or-successive applications “if they follow a
filing that ‘counts' as the prisoner's first
(and only) opportunity for collateral review.”
Vitrano v. United States, 643 F.3d 229, 233 (7th
Cir. 2011) (citation omitted). As Boyd's 2012 § 2254
petition was resolved on the merits, his current motion
qualifies as successive.
believes that he qualifies for an exception to the
prohibition against successive petitions, he must raise this
issue with the Court of Appeals for the Seventh Circuit. This
is the statutory limitation put in place by 28 U.S.C. §
2244(b)(3), which “creates a ‘gatekeeping'
mechanism for the consideration of second or successive
[habeas] applications in the district court.”
Felker v. Turpin, 518 U.S. 651, 657 (1996). Absent
approval from the Seventh Circuit, this court has no
authority to consider the petition. Nunez v. United
States, 96 F.3d 990, 991 (7th Cir. 1996) (“A
district court must dismiss a second or successive petition,
without awaiting any response from the government, unless the
court of appeals has given approval for its filing.”).
Rule 11 of the Rules Governing Section 2254 Cases, the court
must issue or deny a certificate of appealability when
entering a final order adverse to petitioner. 28 U.S.C.
§ 2253(c)(2); Tennard v. Dretke, 542 U.S. 274,
282 (2004). Generally, this means that “reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
and citations omitted). Although the rule allows a court to
ask the parties to submit arguments on whether a certificate
should issue, it is not necessary to do so in this case. To
the extent that this order qualifies as “final”
for purposes of Rule 11, the court declines to issue a
certificate of appealability because reasonable jurists would
not debate whether the petition qualifies as “second or
successive” under 28 U.S.C. § 2244(b).
Petitioner Demetrius Boyd's habeas corpus petition is
DISMISSED for lack of authorization as a second or successive
certificate of appealability is DENIED. If petitioner wishes
he may seek a certificate from the court of ...