Opinion
Civil Action No. 20-312
04-06-2020
TIMOTHY BOCZKOWSKI, Petitioner, v. ROBERT GILMORE, DISTRICT ATTORNEY OF ALLEGHENY COUNTY, and ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA Respondents.
District Judge David S. Cercone
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the "Petition for Writ of Habeas Corpus" (the "Petition") filed pursuant to 28 U.S.C. § 2254, be dismissed pre-service, pursuant to Rule 4 of the Rules Governing Section 2254 Cases because it is second or successive and this Court lacks subject matter jurisdiction over it.
II. REPORT
Timothy Boczkowski ("Petitioner"), initiated the Petition on January 11, 2020 to attack his 1999 conviction for the first-degree murder of his second wife for which he is now serving a life sentence without the possibility of parole. This is the second time Petitioner has sought to attack his 1999 conviction by means of a federal habeas petition filed in this Court. The first attempt was unsuccessful. Boczkowski v. Jackson, No. 10-cv-34 (W.D. Pa. June 28, 2010)(ECF No. 20), certificate of appealability denied, No. 10-3029 (3d Cir. Nov. 18, 2010). In the present Petition, he makes several claims of ineffective assistance of his trial counsel, based on, inter alia, counsel's failure to use both expert pathologists, instead of just one, to testify at trial for the defense and trial counsel's failure to seek an emergency injunction to prevent Petitioner's extradition to North Carolina (to face trial there for the murder of his first wife). ECF No. 4 at 7. Petitioner also raises an actual innocence claim based on evidence that was available at the time of his trial, namely the opinion of Dr. Larkin, one of Petitioner's defense pathologists who opined that Petitioner's second wife died of drowning and not strangulation. Id. at 8 - 9. Petitioner also contends that the errors that occurred during his criminal proceedings in state court were not harmless. Id. at 9 - 10.
In the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Congress enacted strictures on the filing of second or successive habeas petitions in response to the abuse of the habeas writ by prisoners. See Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) ("The purpose of the gatekeeping restrictions was to prevent abuse of the habeas writ."). Congress provided that "[b]efore 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).
The allocation of these gatekeeping responsibilities to the Court of Appeals provided by Section 2244(b)(3)(A), has essentially divested the District Courts of subject matter jurisdiction over habeas petitions that are second or successive within the meaning of that subsection. See, e.g., Robinson v. Johnson, 313 F.3d 128, 140 (3d Cir. 2002)("From the district court's perspective, it [i.e., Section 2244(b)(3)(A)'s gatekeeping assignment to the Courts of Appeals] is an allocation of subject-matter jurisdiction to the court of appeals.").
The Court attaches hereto as an appendix, Magistrate Judge Robert Mitchell's Memorandum and Order from Boczkowski v. Jackson, No. 10-cv-34. A review of that Memorandum and Order suffices to demonstrate that the instant Petition is second or successive and this Court lacks subject matter jurisdiction over it. As such, the instant Petition should be dismissed before being served pursuant to Rule 4 of the Rules Governing Section 2254 Cases, and a certificate of appealability should be denied.
III. CONCLUSION
For the reasons set forth herein, the instant Petition should be dismissed pre-service. Because jurists of reason would not find it debatable that the instant Petition is second or successive, a Certificate of Appealability should also 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 (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted,
/s/Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Date: April 6, 2020 cc: The Honorable
United States District Judge
TIMOTHY BOCZKOWSKI
EA 3797
SCI GREENE
175 PROGRESS DRIVE
WAYNESBURG, PA 15370-8089