Opinion
Civil Action 21-1707
12-23-2021
ANDY BUXTON, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
HON. DAVID S. CERCONE, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
RE: ECF NO. 6
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. 6, be dismissed for lack of subject matter jurisdiction. It is further recommended that a certificate of appealability be denied
II. REPORT
Andy Buxton (“Petitioner”) is a former state prisoner and current parolee. This case was initiated on November 22, 2021 with the receipt of the Petition. ECF No. 1. Petitioner moved for leave to proceed in forma pauperis on December 6, 2021, which was granted on December 21, 2021. ECF Nos. 3 and 5.
In the Petition, Petitioner complains of his criminal conviction at Docket No. CP-02-CR-8697-2012 for driving under the influence (DUI), in violation of 75 Pa. C.S. A. § 380(a)(1), in the Court of Common Pleas of Allegheny County, Pennsylvania. ECF No. 6 at 1. This is the same criminal conviction for which he previously sought habeas relief in Buxton v. SCI-Mercer, No. 17-62 (W.D. Pa. filed Jan. 13, 2017). See No. 17-62, ECF No. 10 at 1 (invoking Petitioner's convictions at CP-02-CR-8697-2012. On July 27, 2017, the undersigned issued a Report and Recommendation recommending that the petition in No. 17-62 be dismissed for lack of jurisdiction, as it was clear that Petitioner had served his entire sentence. No. 17-62, ECF No. 15 at 1. The petition in No. 17-62 was dismissed, and a certificate of appealability denied, on August 18, 2017. No. 17-62, ECF No. 17. The United States Court of Appeals for the Third Circuit similarly denied a certificate of appealability on November 30, 2017. No. 17-62, ECF No. 22.
A review of the underlying state court docket, of which this Court takes judicial notice, indicates that Petitioner was convicted of a variety of vehicle-related offenses in that case. See https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-0008697 2012&dnh=QtSk85qwLySUbgwCvDxDQg%3D%3D (last visited Dec. 23, 2021). Be that as it may, the Petition invokes only Petitioner's DUI conviction. ECF No. 6 at 1.
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 habeas relief from the same criminal conviction in the present matter that he attacked in No. 17-62. As such, the present Petition is “second or successive” under the meaning of the statute Cf. Munchinski v. Wilson, No. 07-1712, 2009 WL 2750254, at *3-5 (W.D. Pa. Aug. 26, 2009) (discussing second and successive petitions). Petitioner provides no indication that he has been granted leave to proceed by the Court of Appeals. 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).
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, ECF No. 6, 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.