Opinion
Civil Action 21-125J District
08-17-2021
HUBERT JACKSON, Petitioner, v. ERIC TICE, Respondent.
Judge Joy Flowers Conti/ Magistrate
REPORT AND RECOMMENDATION
Re: ECF No. 1
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the “Petition Under 28 U.S.C. § 2241(c)(3) for a Writ of Habeas Corpus Ad Subjiciendum” (the “Petition”), ostensibly filed pursuant to 28 U.S.C. § 2241, be treated as a Section 2254 petition and dismissed pre-service, as a second or successive Section 2254 habeas petition. It is further recommended that a certificate of appealability be denied.
II. REPORT
A. Procedural History
Hubert Jackson (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Somerset (“SCI-Somerset”). He is seeking to attack criminal convictions and sentences that were imposed by the Court of Common Pleas of Allegheny County at CC No. 1987-867; CC No. 1988-1908; CC No. 1988-3564; CC No. 1988-3566; CC No. 1988-3567, CC No. 1988-8196 and CC No. 1988-10278 (collectively, “the Challenged State Cases”). ECF No. 1 ¶ 5. Petitioner has attacked these criminal convictions via multiple prior-filed habeas petitions. See, e.g., Jackson v. Tice, No. 20-1387 (W.D. Pa filed Sept. 15, 2020), ECF No. 1 ¶ 8.
The instant Petition is the latest in a series of attempted attacks on those convictions and sentences. A search on PACER for cases filed by “Hubert Jackson” in the United States District Court for the Western District of Pennsylvania and with the United States Court of Appeals for the Third Circuit reveals that Petitioner has filed numerous habeas petitions in this Court, as well as appeals or requests to file second or successive habeas petitions with the Third Circuit. See, e.g., In Re: Hubert Jackson, No. 13-4178 (3d Cir. Nov. 15, 2013) (order denying leave to file a second or successive Section 2254 habeas petition with respect to Allegheny County Common Pleas docket numbers 1988-8196 and 1988-10278); Jackson v. Wingard, No. 14-cv-1530, report and recommendation, ECF No. 30 (finding that Petitioner's Section 2254 petition challenging convictions/sentences obtained at Allegheny County Common Pleas docket numbers 1987-867; 1988-1908; 1988-3564; 1988-3566 and 1988-3567 to be time-barred), report and recommendation adopted, ECF No. 36 (May 22, 2015), certificate of appealability denied, ECF No. 54 (Nov. 3, 2015). The Court notes that Magistrate Judge Robert Mitchell previously recognized that, as of April 27, 2015, Petitioner had brought the “thirteenth in a series of habeas corpus petitions.” Jackson v. Wingard, No. 14-cv-1530, ECF No. 30 at 1.
B. The Petition
On July 22, 2021, Petitioner filed the instant Petition. ECF No. 1. He raises one ground relief. Petitioner asserts that he has been serving a sentence under Inmate Identification No. AJ2373 since he was sentenced for the conviction obtained at CC No. 1988-1908. The sentence at CC No. 1988-1908 was for 2 to 4 years. Petitioner claims that inmate identification numbers are sentence specific, relying upon a statement in McConnell v. Thompson, Civ. A. No. 14-747, 2014 WL 4348173 (W.D. Pa. Sept. 2, 2014). He then asserts that because he has been held under Inmate Identification No. AJ-2373 since 1988, and that inmate identification number is specific to his 2 to 4 - year sentence obtained at CC No. 1988-1908, his sentence has long since expired. As such, Petitioner complains that he has been made to continuously serve the 2 to 4 - year sentence since 1988 which he asserts expired September 20, 1992. ECF No. 1 ¶¶ 5-6. This ground is substantively identical to “Ground Two” asserted by Petitioner in No. 20-1387. See Jackson v. Tice, No. 20-1387, ECF No. 1 ¶¶ 8 - 10
C. Discussion
1. Rule 4
The Petition has not been served yet but, pursuant to Rule 4 of the Rules Governing Section 2254 cases, this Court may dismiss the Petition if it plainly appears on its face that the Petitioner is not entitled to federal habeas relief.
“Courts have used Rule 4 of the habeas corpus rules to summarily dismiss facially insufficient habeas petitions brought under § 2241. Howard v. Haley, 2001 WL 303534, *1 (S.D. Ala. March 8, 2001); Howard v. Certain Unnamed Aircraft Pilots, 1995 WL 431150, *2 (N.D. Ill. July 18, 1995). Because the petition is facially insufficient, it will be dismissed.” Perez v. Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich. 2001). Accord United States v. Recinos- Gallegos, 151 F.Supp.2d 659 (D. Md. 2001) (dismissing petition construed as Section 2241 pursuant to Rule 4). See also Castillo v. Pratt, 162 F.Supp.2d 575, 577 (N.D. Tex. 2001) (“The Supreme Court intended the 2254 Rules to apply to petitions filed under § 2241. See Rule 1(b) of the 2254 Rules”); Ukawabutu v. Morton, 997 F.Supp. 605, 608 n.2 (D.N.J. 1998)(“I refer to these rules [i.e., Rules Governing Section 2254 Cases] as the “Habeas Corpus Rules” because they apply to petitions filed pursuant to 28 U.S.C. § 2241 as well as 28 U.S.C. § 2254.”); Wyant v. Edwards, 952 F.Supp. 348, 352 (S.D. W.Va. 1997)(“the Court has concluded that the § 2254 Rules were intended to apply to § 2241 cases. . .”). Because Rule 4 applies to both Section 2254 Petitions and to Section 2241 Petitions, it does not matter for Rule 4 purposes how the Petition is characterized.
Rule 4 provides in relevant part that:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
In interpreting Rule 4, the Advisory Committee Notes to Rule 4 observe that:
28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, “unless it appears from the application that the applicant or person detained is not entitled thereto.” Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition.
In addition to ordering state court records and/or opinions, a federal habeas court may, under Rule 4, take judicial notice of those state court records and/or state court opinions as well as its own court records. See, e.g., Barber v. Cockrell, 4:01-CV-0930, 2002 WL 63079, at *1 n.4 (N.D. Tex. Jan. 8, 2002)(in a Rule 4 case, the court took judicial notice of its own records of a prior habeas petition filed by the petitioner); United States ex. rel. Martin v. Gramley, No. 98 C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998)(in a Rule 4 summary dismissal, the court took “judicial notice of the opinion of the Illinois Appellate Court in this case.”); Barber, 2002 WL 63079, at *1 (in a Rule 4 case, the court stated that from “the face of the petition, and from [state] court records of which this Court can take judicial notice, the court determines that this is a successive petition. . . .”).
This power of a federal court to summarily dismiss a habeas petition under Rule 4 includes the power to do so when the habeas petition is “second or successive.” See, e.g., Aiello v. Wetzel, CV 16-1728, 2017 WL 564940, at *2 (W.D. Pa. Jan. 13, 2017), report and recommendation adopted, 2017 WL 552973 (W.D. Pa. Feb. 10, 2017).
2. Petitioner cannot use a Section 2241 petition to challenge his sentences.
Petitioner asserts that he has filed this Petition pursuant to 28 U.S.C. § 2241. However, and as Petitioner knows all too well, because Petitioner is concededly a post-conviction state prisoner serving a state court sentence imposed by the Court of Common Pleas of Allegheny County, Petitioner is necessarily a “person in custody pursuant to the judgment of a State court” within the meaning of 28 U.S.C. § 2254(b)(1). Indeed, Petitioner's history of his attacking the Challenged State Cases in this Court by the filing of Section 2254 petitions and by his filing of motions for permission to file second or successive petitions attacking the same before the United States Court of Appeals for the Third Circuit, establishes that Petitioner qualifies as a “person in custody pursuant to the judgment of a State court” within the meaning of 28 U.S.C. § 2254(b)(1). Accordingly, because Petitioner is currently a person in custody pursuant to the judgment of a state court, he cannot show that his Petition is properly brought under Section 2241, as is his burden. See Simon v. Nalley, No. 9:02-CV-1255, 2003 WL 22240588, at *3 (N.D.N.Y. Sept. 22, 2003) (it is a petitioner's burden to show that Section 2241 is jurisdictionally appropriate).
As observed by the Court of Appeals for the Third Circuit, Section 2241 confers jurisdiction on federal district courts to issue writs of habeas corpus in response to a petition from a state or federal prisoner who “is in custody in violation of the Constitution or laws or treaties of the United States.” Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001). In contrast, Section 2254 confers jurisdiction on federal district courts to issue “writs of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court ... on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Coady, 251 F.3d at 484. The Third Circuit has determined, based on canons of statutory construction, that because Section 2254 is more specific and Section 2241 more general, a state prisoner must generally seek relief via a Section 2254 petition and not a Section 2241 petition. Id. See also Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (“Not only is § 2254 an appropriate vehicle for Crouch's proposed claims, it is, as a practical matter, the only vehicle. This is because Crouch is a ‘person in custody pursuant to the judgment of a State court,' 28 U.S.C. § 2254(a), and can only obtain habeas relief through § 2254, no matter how his pleadings are styled.”).
Apparently believing that the characterization of his Petition as being a Section 2241 petition and not a Section 2254 petition permits him to circumvent Congressional intent governing habeas filings in federal courts attacking custody stemming from state court judgments, Petitioner seeks to invoke federal habeas jurisdiction pursuant to Section 2241 contrary to Coady. However, this course of action is foreclosed both by Coady and by Felker v. Turpin, 518 U.S. 651 (1996). See, e.g., Greenawalt v. Stewart, 105 F.3d 1287, 1287 (9th Cir. 1997) (“It is clear that Greenawalt is attempting to avoid the limitations imposed on second or successive petitions by styling his petition as one pursuant to § 2241. The United States Supreme Court has instructed us that the authority of the federal courts to grant habeas relief to state prisoners under § 2241 is limited by 28 U.S.C. § 2254. Felker v. Turpin, 518 U.S. 651 (1996)”); Byrd v. Gillis, No. CIV.A. 97-4697, 1997 WL 698157, at *1 (E.D. Pa. Nov. 5, 1997) (“in Felker v. Turpin, 518 U.S. 651 (1996), the Supreme Court held that it would apply the AEDPA's new requirements for second and successive petitions to original petitions filed under 28 U.S.C. § 2241, even though the AEDPA does not explicitly mention § 2241.”).
Accordingly, the instant Petition should be treated as what it is, a Section 2254 petition attacking the Challenged State Cases. This was explained to Petitioner in explicit detail in the Report recommending dismissal of his earlier-filed petition in No. 20-1387. See Jackson v. Tice, No. 20-1387, ECF No. 2 at 5-7.
3. The Petition is a second or successive Section 2254 petition.
As he did in the putative Section 2241 petition that he filed in No. 20-1387, Petitioner clearly is attacking the validity of the above-mentioned state court criminal convictions. Upon review, the Court takes judicial notice of the fact that Petitioner previously filed Section 2254 habeas petitions that attacked these very same convictions in other cases as well. See In Re: Hubert Jackson, No. 13-4178 (3d Cir. Nov. 15, 2013) (order denying leave to file a second or successive Section 2254 habeas petition with respect to Allegheny County Common Pleas docket numbers 1988-8196 and 1988-10278); Jackson v. Wingard, No. 2:14-cv-1530, report and recommendation, ECF No. 30 (finding that Petitioner's Section 2254 petition challenging convictions/sentences obtained at Allegheny County Common Pleas docket numbers 1987-867; 1988-1908; 1988-3564; 1988-3566 and 1988-3567 to all be time-barred). Accordingly, the instant Petition should be treated as a Section 2254 habeas petition attacking convictions/sentences that Petitioner has previously and unsuccessfully attacked by prior Section 2254 petitions which were denied on the merits.
Section 2254 allows a person in custody due to the judgment of a state court to seek a writ of habeas corpus based “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). However, with the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996, Congress chose to enact gatekeeping provisions in order to limit the number of prisoners filing multiple petitions for the writ. The AEDPA provides, in relevant part:
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall 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) (emphasis added).
Because, as stated above, Petitioner seeks habeas relief from the same criminal convictions in the present matter that he attacked in prior federal habeas petitions, the present Petition is “second or successive” under the meaning of the statute Cf. Munchinski v. Wilson, No. 07-1712, 2009 WL 2750254at *3-*5 (discussing second and successive petitions). Petitioner provides no indication that he has been granted leave to proceed by the Third Circuit, and a search of that court's electronic filing system by Petitioner's name does not show that any such permission has been granted. As a result, this Court lacks subject matter jurisdiction to address the claims that Petitioner has raised in his Petition. See Burton v. Stewart, 549 U.S. 147 (2007); see also Goldblum v. Klem, 510 F.3d 204, 217 (3d Cir. 2007).
4. A certificate of appealability should be denied.
A certificate of appealability should be denied because jurists of reason would not find it debatable that the instant case is not properly a Section 2241 petition but is, in fact, a second or successive Section 2254 petition for which Petitioner has not received permission to file.
5. Petitioner risks sanctions under Rule 11.
As discussed above, Petitioner has filed multiple habeas petitions attacking his underlying convictions. He even has attempted to attack the same convictions at issue in the present matter in a second or successive Section 2254 petition in the guise of a Section 2241 petition. Jackson, No. 20-1387. Petitioner is well-aware of the requirement that he first must receive permission from the Third Circuit before he may proceed with a second or successive habeas petition attacking these state criminal convictions. Petitioner is cautioned that, by presenting this Court with habeas petitions and arguments therein that he knows to be frivolous, he exposes himself to sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, which apply to pro se litigants as well as to attorneys. Rader v. ING Bank, Nos. 09-340, 09-544, 09-781, 2010 WL 1403962, at *6 (D. Del. Apr. 07, 2010) (citing Thomas v. Connecticut Gen. Life Ins. Co., No. 02-MC-136, 2003 WL 22953189, at *3 (D. Del. Dec 12, 2003)).
III. CONCLUSION
For the reasons set forth herein, the Court concludes that it plainly appears from the face of the Petition and items of which the Court can take judicial notice, that this a second or successive Section 2254 petition over which this Court lacks subject matter jurisdiction. Therefore, it is respectfully recommended that the instant Petition be dismissed pre-service and a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.