Opinion
Civil Action 22 - 821
06-23-2022
ABDULLAH HANEEF IBN-SADIIKA, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA and THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
Abdullah Haneef Ibn-Sadiika AP-8980 SCI-Huntingdon
Abdullah Haneef Ibn-Sadiika AP-8980 SCI-Huntingdon
DISTRICT JUDGE MARILYN J. HORAN
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECCOMENDATION
For the reasons that follow, it is respectfully recommended that the “Petition for Removal to Federal Court of: Petition for Post Conviction Relief As Per 42 Pa. C.S.A. §§ 9541-9546 and/or Habeas Corpus Petition Relief As Per 42 Pa. C.S.A. §§ 6501-6505” (ECF No. 5) be denied. Alternatively, it is recommended that the underlying petition which Petitioner seeks to have removed to this Court be construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and be dismissed for lack of jurisdiction as an unauthorized second or successive petition. It is also recommended that a certificate of appealability be denied and that the pending “Motion for Order Fixing Date for Hearing on Removal Petition” be denied as moot.
This petition was docketed as a petition for writ of habeas corpus.
II. REPORT
Petitioner Abdullah Haneef Ibn-Sadiika (“Petitioner”) is a state prisoner incarcerated within the Pennsylvania Department of Corrections. He is serving a life sentence for first-degree murder and robbery after an Allegheny County jury found him guilty at Nos. CP-02-CR-0010761-1984 and CP-02-CR-0011275-1984 on June 27, 1985. He has filed a pleading titled a “Petition for Removal to Federal Court of: Petition for Post Conviction Relief As Per 42 Pa. C.S.A. §§ 9541-9546 and/or Habeas Corpus Petition Relief As Per 42 Pa. C.S.A. §§ 6501-6505” (“Petition for Removal”). (ECF No. 5.) Essentially, Petitioner moves to “remove” to this Court his petition that he filed in the Court of Common Pleas of Allegheny County on December 15, 2021, in which he seeks relief pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”) statute and/or Pennsylvania's habeas corpus statute as it relates to his criminal convictions in Allegheny County at Nos. CP-02-CR-0010761-1984 and CP-02-CR-0011275-1984 (“underlying petition”). Because there is no legal basis for this Court to remove the underlying petition, the Petition for Removal should be denied. Alternatively, if this Court should consider the underlying petition for relief, it should be dismissed for lack of jurisdiction as an unauthorized second or successive petition for writ of habeas corpus.
The petition is found on the docket at ECF No. 5-3, pp.9-57.
A. Summary of Petitioner's federal habeas proceedings
A summary of Petitioner's state court criminal direct and collateral appeal proceedings will not be set forth herein.
Petitioner first challenged his judgment of sentence at CP-02-CR-0010761-1984 and CP-02-CR-0011275-1984 in a federal habeas petition filed in this Court at 2:88-cv-41. That petition was dismissed on May 2, 1988, and the Third Circuit Court of Appeals subsequently denied Petitioner a certificate of appealability on August 8, 1988.
Petitioner again challenged his judgment of sentence in another federal petition for writ of habeas corpus in this Court at 2:01-cv-710. That petition was dismissed as time-barred on May 16, 2001. The Third Circuit denied Petitioner a certificate of appealability on May 30, 2002. See Ibn-Sadiika v. Vaughn, C. A. No. 01-2420 (3d. Cir.).
Petitioner filed another federal petition for writ of habeas corpus in this Court at 2:02-cv-1309. That petition was transferred to the Third Circuit for consideration as a second or successive petition on August 28, 2002. The Third Circuit denied Petitioner leave to file a second or successive petition on October 8, 2002. In Re: Ibn-Sadiika, C. A. No. 02-3433 (3d Cir.).
Petitioner filed another federal petition for writ of habeas corpus in this Court at 2:03-cv-1033. That petition was transferred to the Third Circuit for consideration as a second or successive petition on September 12, 2003. The Third Circuit denied Petitioner leave to file a second or successive petition on November 17, 2003. In Re: Ibn-Sadiika, C. A. No. 03-3872 (3d Cir.).
Petitioner filed another federal petition for writ of habeas corpus in this Court at 2:13-cv-1587. That petition was transferred to the Third Circuit for consideration as a second or successive petition on November 14, 2013. The Third Circuit granted a motion to voluntarily dismiss the case on November 22, 2013. In re: Abdullah Ibn-Sadiika, C. A. No. 13-4453 (3d Cir.).
In addition to the above cases, Petitioner has also filed at least three applications to file second or successive petitions for writ of habeas corpus directly with the Third Circuit, all of which were denied. See In Re: Ibn-Sadika, C. A. No. 07-1859 (3d Cir. July 18, 2007); In re: Abdullah Ibn-Sadiika, C. A. No. 15-3724 (3d Cir. Feb. 1, 2016); In re: Abdullah Ibn-Sadiika, C. A. No. 16-3143 (3d Cir. Sept. 8, 2016).
B. The Petition for Removal
In support of his request to have the underlying petition removed to this Court, Petitioner cites 28 U.S.C. § 1443(1). That section allows a defendant to remove a state court civil action or criminal prosecution to federal court in the rare instance that it is “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” Id. § 1443(1); see also City of Greenwood v. Peacock, 384 U.S. 808, 828 (1966) (describing removal permitted by § 1443(1) as “rare”). Removal pursuant to § 1443(1) must satisfy a twopronged test. “First, it must appear that the right allegedly denied the removal petitioner arises under a federal law ‘providing for specific civil rights stated in terms of racial equality.'” Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). “Second, it must appear . . . that the removal petitioner is denied or cannot enforce the specified federal rights in the courts of the State.” Id. (internal quotation and citation omitted). This second prong requires that the denial of federal rights “be manifest in a formal expression of state law” except “in the unusual case where an equivalent basis could be shown for an equally firm prediction that the defendant would be denied or cannot enforce the specified federal rights in state court.” Id. (internal quotation and citation omitted).
It appears that Petitioner also relies on 28 U.S.C. § 1443(2), however, that subparagraph is inapplicable to him because it only applies to “‘federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights,' . . . and state officers who refuse to do an act on the ground that it would be inconsistent with civil rights laws.” Delaware v. Desmond, 792 Fed.Appx. 241, 242 (3d Cir. 2020) (quoting City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966)); see also Greenberg v. Veteran, 889 F.2d 418, 421 (2d Cir. 1989) (“The purpose of ‘refusal clause' is to provide a federal forum for suits against state officers who uphold equal protection in the face of strong public disapproval.”) Petitioner is neither a federal nor state officer.
In his Petition for Removal, Petitioner lists a number of ways in which his federal rights are being and will be violated in the Court of Common Pleas, including the deprivation of equal rights under the law and the deprivation of liberty without due process. He argues that such violations would not occur if he were not African-American and Muslim. He further argues that his rights under 42 U.S.C. § 1981 (guaranteeing all persons, regardless of their race, the right to make and enforce contracts, sue, and give evidence) will be violated if his underlying petition remains in state court.
Petitioner has not shown any basis for removal of the underlying petition to federal court under § 1443(1). See, e.g., Attorney General ex rel. Mertz v. Yeager, 464 F.2d 553 (3d Cir. 1972); see also Delaware v. Hefley, 403 Fed.Appx. 677 (3d Cir. Dec. 14, 2010). First, under the plain language of § 1443(1), only a defendant is permitted to remove certain civil and criminal cases to federal court. Petitioner has already been convicted, and so he is now the “plaintiff” in his civil action for post-conviction relief. See Walling v. State, 172 F.3d 880 (10th Cir. 1999) (observing that prisoner was no longer a “defendant” and could not remove state post-conviction proceeding to federal court; dismissing appeal as “legally frivolous”). Even if he were a defendant seeking to remove his criminal case, Petitioner has not complied with the timing requirements set forth in 28 U.S.C. § 1455 which dictate that “[a] notice of removal of a criminal prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.” Id. § 1455(b)(1). Petitioner was tried and convicted in 1985. In the absence of any other evidence, the delay of over 35 years weighs heavily against a finding of good cause.
Notwithstanding the above, Petitioner's claims of due process and equal protection violations do not satisfy the first prong of § 1443(1) because they involve constitutional provisions of general applicability. See Johnson, 421 U.S. at 219 (“Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice.”); Rachel, 384 U.S. at 792 (holding broad contentions under the Due Process Clause of the Fourteenth Amendment insufficient for § 1443(1) because the Clause's guarantees are generally applicable and not specific to racial equality); St. James Assocs. v. Larsen, 67 Fed.Appx. 684, 686 (3d Cir. 2003) (holding claims under the Fourteenth Amendment Equal Protection Clause cannot support § 1443(1) removal for the same reason claims of due process violations cannot (citing Alabama v. Conley, 245 F.3d 1292, 1295-96 (11th Cir. 2001))). Section 1981, however, does appear to confer civil rights stated in terms of racial equality, although Petitioner's claims that this provision will be violated are wholly conclusory with no factual support suggesting racial inequity. See, e.g., Neal v. Wilson, 920 F.Supp. 976 (E.D. Ark. 1996) (defendant's basis for removal “boil down to little more than a belief by him that, since the state actors disagree with him and his lawyers, they must have racially discriminatory motives”).
Furthermore, even if Petitioner could set forth a federal right specific to race equality which he alleges will be denied in state court, he has failed to satisfy the second prong by showing that such rights actually will be denied or cannot be enforced in state court. See Johnson, 421 U.S. at 219. He does not point to any Pennsylvania law or likely outcome of his post-conviction petition that necessarily conflicts with his asserted federal rights. Id. at 220 (explaining “the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court” (citation omitted)); cf. Rachel, 384 U.S. at 804-05 (holding removal under § 1443(1) appropriate because state criminal defendants were immunized from state trespass charge by federal law prohibiting the denial of service or public accommodation on the basis of race). None of Petitioner's various complaints about the judges, attorneys and evidence in his state court proceedings present civil rights violations that the state court obviously will not address. Moreover, Petitioner has an appellate remedy available should the Court of Common Pleas deny his underlying petition, and Petitioner has offered nothing to indicate that the Superior Court of Pennsylvania would not recognize the rights he claims were violated.
There is yet a third reason for denying the Petition for Removal which is independent of the requirements of § 1443(1). In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that a federal court could not enjoin a state criminal prosecution absent a showing of unusual circumstances that call for equitable relief. Id. at 54. The Younger decision was premised on principles of federalism and equity, which the Supreme Court has repeated again and again. There are no compelling equitable considerations to justify federal court intervention here. Petitioner may lose in state court, but that is not grounds for removal. Accordingly, his Petition for Removal should be denied.
It does not appear that Petitioner filed a notice of removal in the Court of Common Pleas and according to that docket the underlying petition still remains pending in his criminal case. Therefore, it does not appear necessary to remand this matter back to the state court.
C. Second or successive habeas petitions
Alternatively, if this Court were to consider the merits of the underlying petition, it should be construed as a petition for writ of habeas corpus and dismissed as an unauthorized second or successive petition over which this Court lacks jurisdiction. As Petitioner is well aware, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) mandates that before a state prisoner may file a second or successive habeas corpus petition in which he challenges a judgment of sentence that he previously challenged in a federal habeas action, he must first 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 whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). See 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).
The underlying petition once again challenges Petitioner's judgment of sentence at CP-02-CR-0010761-1984 and CP-02-CR-0011275-1984. However, as previously noted, Petitioner has already filed a habeas petition in this Court challenging this judgment of sentence. To date, Petitioner has not been granted permission to file a second or successive habeas petition challenging the same judgment of sentence. As such, the underlying petition is an unauthorized petition over which this Court lacks jurisdiction.
D. Certificate of appealability
A certificate of appealability should be denied because Petitioner has not made a substantial showing of the denial of a constitutional right or shown that jurists of reason would disagree that the underlying petition is an unauthorized second or successive petition for writ of habeas corpus. 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 o procedural ground); Walker v. Government of the Virgin Islands, 2302000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that to Federal Court of: Petition for Post Conviction Relief As Per 42 Pa. and/or Habeas Corpus Petition Relief As Per 42 Pa. C.S.A. §§ 6501-6 denied. Alternatively, it is recommended that the underlying petition have removed to this Court be construed as a petition for writ of habea U.S.C. § 2254 and be dismissed for lack of jurisdiction as an unauthor petition. It is also recommended that a certificate of appealability be d recommended that the pending “Motion for Order Fixing Date for Hea (ECF No. 6) be denied as moot.
In accordance with the Federal Magistrate Judge's Act, 28 U.S and Rule 72.D.2 of the Local Rules of Court, Petitioner is allowed fou date of service of this Report and Recommendation to file written obje file timely objections will constitute a waiver of any appellate rights.