Opinion
Civil Action 2: 20-cv-0369
12-15-2021
JOSHUWA DZEESHAUGH EVANS-SALTER, by Commonwealth Imposed Name Joshua Evans, Petitioner, v. WARDEN OF SCI MAHANOY, DISTRICT ATTORNEY OF ALLEGHENY COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
CYNTHIA REED EDDY, CHIEF MAGISTRATE JUDGE.
REPORT AND RECOMMENDATION
ROBERT J. COLVILLE, UNITED STATES DISTRICT JUDGE.
I. RECOMMENDATION
Petitioner, Joshuwa Dzeeshaugh Evans-Salter, by Commonwealth Imposed Name Joshua Evans, is a state prisoner. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges the validity of his conviction that was obtained at Case No. CP-02-CR-0008840-2007 in the Court of Common Pleas of Allegheny County. (ECF No. 4). The Court may dismiss the petition prior to service if it plainly appears that Petitioner is not entitled to habeas relief. That is the case here because the instant petition is a second or successive petition and Petitioner does not assert that he has received from the United States Court of Appeals for the Third Circuit an order authorizing this Court to consider it, as required by 28 U.S.C. § 2244(b)(3)(A). Accordingly, it is respectfully recommended that the instant petition be summarily dismissed for lack of jurisdiction and that a certificate of appealability be denied. 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts.
II. REPORT
A. Relevant Background
Following a non-jury trial presided over by the Honorable Anthony M. Mariani of the Court of Common Pleas of Allegheny County, Petitioner was found guilty of two counts of aggravated assault, one count of Firearms Not to be Carried Without a License, and two counts of Recklessly Endangering Another Person, in connection with an incident that took place on May 24, 2007, in a public playground in Wilkinsburg, Pa. On June 22, 2009, Petitioner was sentenced to an aggregate term of 11 to 30 years imprisonment, to be followed by a 15-year probationary term
On January 27, 2015, Petitioner filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was docketed at Case No. 2: 15-cv-0110 and assigned to the undersigned Magistrate Judge. In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to have a U.S. Magistrate Judge conduct proceedings in the case, including entry of a final judgment. Evans raised five grounds for relief in his petition based on alleged ineffective assistance of counsel. On November 20, 2017, the undersigned issued a Memorandum Opinion and Order denying the petition and denying a certificate of appealability and final judgment was entered. (ECF Nos. 16, 17, and 18). Petitioner did not seek further review.
On March 13, 2020, the Clerk of Court received the instant federal habeas petition in which he again challenges his 2007 judgment of sentence. (ECF No. 1). By Order dated March 16, 2020, the Court advised Petitioner that there were a number of problems with his filing including: (1) the Petition had been received without a filing fee or the forms required to proceed in forma pauperis; (2) the Petition was not submitted on the standard habeas form supplied by the Court and did not contain all the information required by the standard form; (3) it appeared that his Petition may be a second or successive petition as Petitioner had previously challenged his convictions and sentence stemming from his 2007 arrest; and (4) there is no inmate listed on the DOC Inmate Locator with the name Joshuwa Dzeeshaugh Evans-Salter; rather, the DOC Inmate Locator reflects that Inmate Number JC-1215 is issued to Joshua Evans. (ECF No. 2).
The Court's mailings addressed to Joshuwa Dzeeshaugh Evans-Salter are returned as “Refused - Unapproved Name.” See ECF No. 8. Accordingly, the Clerk of Court has been directed to mail all filings to Petitioner using his commit name as listed on the DOC inmate locator - Joshua Evans.
On March 17, 2020, the Court received the habeas filing fee (ECF No. 3) and the handwritten Petition was filed that day. (ECF No. 4). On May 4, 2020, the Court issued a Text Order again instructing Petitioner to resubmit his petition on the standard habeas form and to address whether this was a second or successive petition. (ECF No. 6). On July 28, 2020, Petitioner submitted a petition on the standard form, which notably confirms that he is challenging his 2007 convictions and judgment of sentence (ECF No. 10, ¶ 1(b)), and also filed a Motion to Stay the case pending completion of his state court collateral proceedings. (ECF No. 11). The Court granted the motion and the case was stayed pending completion of Petitioner's state court proceedings. (ECF No. 12).
On November 9, 2021, Petitioner filed a “Judicial Notice to Administrative Court, ” indicating that his state court collateral proceedings were complete. (ECF No. 14). As a result, the case was reopened. On November 23, 2021, the Court issued an Order to Show Cause ordering Petitioner to show cause why the case should not be summarily dismissed for lack of jurisdiction as it appears that this is a second or successive petition and Petitioner has not received authorization from the United States Court of Appeals for the Third Circuit to file a second or second petition. (ECF No. 15).
On December 10, 2021, Petitioner filed his response to the Order to Show Cause acknowledging that he has filed a previous federal habeas petition challenging his 2007 judgment of sentence, but states that “extraordinary circumstances” warrant “the ‘grant' for a new/amended 2254, ” namely “Petitioner's mental capacity at the time of his first filing . . . .” (ECF No. 16 at 5). He notably does not indicate that he has received authorization from the United States Court of Appeals for the Third Circuit to file a second or second petition.
B. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") mandates that before a petitioner may file a second or successive habeas corpus petition under 28 U.S.C. § 2254 challenging the same judgment of sentence that he previously challenged in federal habeas, he must obtain an order from the 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). 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, which are set forth in § 2244(b)(2). 28 U.S.C. § 2244(b)(3)(C). AEDPA's allocation of "gatekeeping" responsibilities to the courts of appeals has divested district courts of jurisdiction over habeas petitions that are second or successive filings. See, e.g., Burton v. Stewart, 549 U.S. 147 (2007).
Petitioner does not assert that he has received authorization from the United States Court of Appeals for the Third Circuit Court of Appeals to file a second or successive petition. In the absence of prior authorization by the Court of Appeals for the Third Circuit, this Court lacks jurisdiction to consider this petition.
This Report and Recommendation should not be read as a comment upon the merits of any claim that Petitioner could raise in a second or successive habeas petition challenging his judgment of sentence, or whether such a petition would be subject to dismissal on other grounds.
C. Certificate of Appealability
Reasonable jurists would all agree that Petitioner has not shown that he obtained leave from the United States Court of Appeals for the Third Circuit to file a second or successive habeas corpus petition. Reasonable jurists would also agree that this Court lacks jurisdiction and authority to consider the second or successive habeas petition without proof of such leave. Accordingly, it is recommended that a certificate of appealability be denied.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be summarily dismissed and that a certificate of appealability be denied.
Petitioner is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner may file written objections to this Report and Recommendation by January 3, 2022. Petitioner is advised that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).