Opinion
1:23-cv-165
01-12-2023
ISAIAH CAPITOL, Petitioner v. WARDEN OF SCI MERCER, Respondent
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION ON MOTION TO DISMISS ECF NO. 9
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Respondent's Motion to Dismiss [ECF No. 9] Petitioner Isaiah Capitol's pro se Petition for Writ of Habeas Corpus [ECF No. 1] be GRANTED because the petition is second or successive and Capitol did not receive an order from the United States Court of Appeals for the Third Circuit authorizing this Court to consider it, as required by 28 U.S.C. § 2244(b). It is further recommended that a Certificate of Appealability be denied.
Pre-service dismissal is appropriate pursuant to Rule 4 of the Rules Governing Section 2254 Cases In the United States District Courts which obligates district courts to screen and summarily dismiss habeas petitions that plainly show the petitioner is not entitled to relief.
II. Report
A. Background
On November 18, 2003, Petitioner was convicted of two counts of Robbery, Theft by Unlawful Taking, Receiving Stolen Property and Terroristic Threats, and one count of Simple Assault, in the Court of Common Pleas of Erie County at criminal docket number CP-25-CR-0002196-2003. ECF No. 1 at 1. On July 15, 2005, the trial court sentenced Petitioner to an aggregate term of 11 -22 years imprisonment. Id.
On February 9, 2009, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. See Capitol v. Nish, Case No. 1:09-cv-l 6 (W.D. Pa. 2009). Petitioner challenged his conviction at CP-25-CR-0002196-2003 based on trial counsel's ineffectiveness, prosecutorial misconduct, and legality of sentence. Id. On October 12,2011, United States District Judge Sean J. McLaughlin issued an Order denying Petitioner's petition and dismissing the action. Id. at ECF No. 24.
On June 7, 2023 - over eleven years after the dismissal of his prior habeas petition -Petitioner filed the instant petition for writ of habeas corpus and paid the $5.00 filing fee. See ECF No. 1. The Clerk docketed his petition and assigned it to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
B. Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(b), mandates that before a state prisoner may file a second or successive habeas corpus petition challenging a judgment of sentence that he previously challenged in a federal habeas action, he must first obtain an order from the appropriate court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). See, e.g., Magwood v. Patterson, 561 U.S. 320 (2010); United States v. Winkelman, 746 F.3d 134, 135 (3d Cir. 2014). Once a petitioner moves for authorization to file a second or successive petition, a three-judge panel of the Court of Appeals must decide within thirty days whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, set forth in § 2244(b)(2). See U.S.C. § 2244(b)(3). AEDPA's allocation of‘'gatekeeping” responsibilities to the Courts of Appeals divests district courts of jurisdiction over habeas petitions that are second or successive filings until the appropriate Court of Appeals authorizes the filing. See, e.g., Burton v. Stewart, 549 U.S. 147 (2007).
In the instant petition for a writ of habeas corpus, Petitioner is challenging the same Erie County judgment of sentence (CP-25-CR-0002196-2003) that he challenged in his prior § 2254 petition at Civil Action No. 1:09-cv-16. A review of the Court of Appeals' docket establishes that Petitioner has not sought or received authorization to pursue a second or successive petition. Accordingly, this Court must dismiss the petition for lack of jurisdiction.
This recommendation is without prejudice to Petitioner's ability to seek authorization to file a second or successive petition from the Court of Appeals for the Third Circuit. If the Court of Appeals grants his application, he can then file another habeas action in this Court at a new docket number.
III. Certificate of Appealability
A certificate of appealability should be issued only when a petitioner has made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2254(c)(2). Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, “a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Here, the Court concludes that jurists of reason would not find it debatable whether each of Petitioner's claims should be denied for the reasons given herein. Accordingly, a certificate of appealability should be denied.
IV. Conclusion
For the reasons stated herein, it is respectfully recommended that Capitol's petition for writ of habeas corpus be denied. It is further recommended that a certificate of appealability be denied and this action closed.
V. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).