Opinion
Civil Action 21-cv-837
07-06-2021
KENNETH BAKER, Petitioner, v. THE ATTORNY GENERAL OF THE STATE OF PENNSYLVANIA; MICHAEL CLARK; and THE DISTRICT ATTORNEY OF BEAVER COUNTY, Respondents.
J. Nicholas Ranjan District Judge
REPORT AND RECOMMENDATION
ECF No. 1
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF No. 1, be dismissed for lack of subject matter jurisdiction. It is further recommended that a certificate of appealability be denied.
II. REPORT
Kenneth Baker (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Albion, Pennsylvania (“SCI-Albion”). This case was initiated on June 29, 2021 with the receipt of the Petition along with the required filing fee. ECF Nos. 1 and 2.
In the Petition, Petitioner complains of his criminal conviction at Docket No. CP-04- CR-2240-2010 in the Court of Common Pleas of Beaver County, Pennsylvania. ECF No. 1 at 1. This is the same criminal conviction for which he previously sought habeas relief in Baker v. Gilmore, Case No. 16-224 (W.D. Pa. filed Mar. 1, 2016). See No. 16-224, ECF No. 3 at 1, and ECF No. 28 at 1. The previous Petition was denied on the merits on August 19, 2019 by the undersigned, as was a certificate of appealability. See generally Case No. 16-224, ECF No. 48.
28 U.S.C. § 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).
As stated above, Petitioner seeks federal habeas relief from the same criminal conviction in the present matter that he attacked in Case No. 16-224. As such, 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 Court of Appeals, 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).
In addition, a certificate of appealability should be denied because jurists of reason would not find it debatable whether this Court has jurisdiction to proceed with this case. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000). (explaining standard for grant of a certificate of appealability where court does not address petition on the merits but on some procedural basis).
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the Petition be dismissed, and that 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. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. 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 days thereafter in accordance with Local Civil Rule 72.D.2.