Opinion
CIVIL ACTION No. 04-2077.
September 15, 2004
REPORT AND RECOMMENDATION
Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Michael McCune ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Huntingdon, Pennsylvania, while serving out both federal and state sentences. For the reasons that follow, I recommend that the petition be construed as a petition filed pursuant to 28 U.S.C. § 2255, and that the petition be transferred to the Court of Appeals for the Third Circuit.
I. FACTS AND PROCEDURAL HISTORY
On November 18, 1993, Petitioner was convicted before the Honorable James McGirr Kelly, United States District Court Judge for the Eastern District of Pennsylvania, of one (1) count of conspiracy to distribute cocaine, cocaine base and marijuana; one (1) count of RICO violations; and two (2) counts of violent crime in aid of racketeering. See Crim. No. 93-138-JK-23, attached to Resp.'s Br. at Exhibit "1." On May 19, 1994, Judge Kelly sentenced Petitioner to life imprisonment on each count, with his federal sentence to run concurrently with a separate sentence imposed on him by the Commonwealth of Pennsylvania.
On May 24, 1994, Petitioner filed a Notice of Appeal with the Third Circuit, which affirmed Petitioner's conviction and sentence on February 17, 1995. United States v. McCune, 47 F.3d 1162 (3d Cir. 1995) (table). The United States Supreme Court denied Petitioner's petition for writ of certiorari on May 22, 1995. McCune v. United States, 514 U.S. 1135 (1995).
On December 6, 1996, Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Following this Court's Report and Recommendation, the District Court denied the petition on May 21, 1997. See United States v. McCune, 2003 WL 22425005, at *1 (E.D. Pa. July 24, 2003) (setting forth procedural history of Petitioner's 2255 petitions).
On May 15, 2002, Petitioner filed a pro se "Motion for Evidentiary Hearing," which the Court construed as a second habeas petition pursuant to 28 U.S.C. § 2255. Because Petitioner did not obtain certification from the Third Circuit to proceed with his second 2255 petition, as required, the second petition was denied as successive on June 12, 2002. See McCune, 2003 WL 22435005, at *1.
On May 7, 2003, McCune filed a pro se letter motion entitled "Motion by Michael McCune for Evidentiary Hearing Based on Constitutional Issues," which the Court also construed as a habeas petition filed pursuant to 28 U.S.C. § 2255. Because Petitioner had again failed to obtain certification from the Third Circuit, his third 2255 petition was denied as successive on July 24, 2003. See McCune, 2003 WL 22435005, at *1.
On May 12, 2004, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, naming as the respondent James L. Grace, warden of the State Correctional Institution at Huntingdon where Petitioner is currently imprisoned. The petition was originally assigned to the Honorable Legrome D. Davis, United States District Court Judge for the Eastern District of Pennsylvania, who referred the matter to me for a Report and Recommendation. Subsequently, the instant petition was reassigned from Judge Davis to Judge Kelly as related to Civil Action No. 04-2043. II. DISCUSSION
Civil Action No. 04-2043 is yet another habeas petition filed by Petitioner pursuant to 28 U.S.C. § 2255, which was docketed by this Court on May 12, 2004. Notably, Petitioner raises the same grounds for relief in that petition — his fourth 2255 petition — as he raises in the instant petition filed pursuant to 2254.
Section 2254 allows a person in state custody to challenge their imprisonment "pursuant to the judgment of a State court." 28 U.S.C. § 2254. When a person is challenging their imprisonment pursuant to a federal conviction, however, the proper avenue is to file a petition for habeas corpus pursuant to section 2255.See, e.g., Schlup v. Delo, 513 U.S. 298, 346 (1995). In the instant petition, Petitioner clearly challenges his federal convictions; indeed, as previously stated, Petitioner raised the identical grounds for relief in a 2255 petition filed with this court on May 12, 2004, and docketed as Civil Action No. 04-2043. Because Petitioner challenges his imprisonment pursuant to his federal convictions, the instant petition should be construed as a habeas petition filed pursuant to 2255.
I note that although Petitioner filed the instant petition on the "Form for Use in Application for Habeas Corpus Under 28 USC § 2254," the petition was docketed by the Clerk of Court as a § 2241 petition. I conclude that this characterization of Petitioner's petition was improper. Petitioner raises two (2) claims: (1) that he was not present when the crime underlying the federal convictions occurred; and (2) after his conviction, a government witness offered to recant her testimony against him in exchange for $5,000.00. Therefore, by way of an "actual innocence" argument, Petitioner clearly seeks to challenge his imprisonment pursuant to his federal convictions. As such, the instant petition is properly construed as a 2255 petition — a conclusion supported by the fact that, as previously mentioned, the petition was reassigned from Judge Davis to Judge Kelly as related to Civil Action No. 04-2043, which is a separate and pending 2255 petition in which Petitioner raises the same grounds for relief set forth herein. Section 2241 is only available if the remedy under 2255 (or 2254) is inadequate or ineffective, or if the court's failure to afford relief amounts to "a complete miscarriage of justice." See In re Dorsainvil, 119 F.3d 245, 249-251 (3d Cir. 1997). I find that Petitioner's remedy for pursuing his claims under § 2255 — petitioning the Third Circuit for a certificate of appealability — is neither inadequate nor ineffective.
Petitioner's claims attacking his conviction under 28 U.S.C. § 2255 are subject to the successive petition bar found in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA provides 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 Third Circuit has held that a petitioner seeking to file a second or successive habeas corpus petition after April 24, 1996, the effective date of the AEDPA, must move in the Court of Appeals for an order authorizing the district court to consider the application.Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (citingFelker v. Turpin, 518 U.S. 651, 657 (1996)) (the AEDPA has created a "`gatekeeping' mechanism" for consideration of second or successive petitions "because they are, for the most part, wasteful of judicial time and effort"); see also Libby v. Magnusson, 177 F.3d 43, 45 (1st Cir. 1999) (pursuant to the AEDPA, "a second or successive habeas petition is not a matter of right — the gatekeeping function belongs to the court of appeals, not to the district court"). The district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas petition. Libby, 177 F.3d at 46.
As previously explained, Petitioner filed the instant federal habeas petition on May 12, 2004, and once again attacks his November 18, 1993, federal convictions. Since Petitioner has already filed three (3) 2255 petitions, the instant 2255 petition is considered successive and must be presented to the Third Circuit for a certificate of appealability. 28 U.S.C. § 2244(b)(3)(A)-(C); Robinson, 313 F.3d at 140 ("[i]t would circumvent the intent of the gatekeeping function of § 2244 for a district court to proceed to rule on the merits of a second or successive petition or on any affirmative defense before the court of appeals has made a decision whether to let the petition for habeas corpus proceed in the district court"). Under the circumstances presented here, the District Court must either dismiss the unapproved second or successive petition, or transfer the action to the Third Circuit. Robinson, 313 F.3d at 139 ("when a second or successive habeas petition is erroneously filed in a district court with the permission of a court of appeals, the district court's only option to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631"). Respondent argues that the instant petition should be dismissed as successive. See Resp.'s Br. at 1, 5. However, so as not to cause Petitioner any unnecessary delay, and to preclude the filing of yet another habeas petition without first seeking certification from the Third Circuit, I recommend that the instant petition be transferred to the Third Circuit.
Therefore, I make the following:
Transfers can be accomplished through 28 U.S.C. § 1631.See, e.g., Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003). Section 1631 provides in relevant part:
Whenever a civil action is filed in a court . . . or an appeal . . . is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
RECOMMENDATION
AND NOW, this day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 should be construed as a petition filed pursuant to 28 U.S.C. § 2255, and that the petition should be TRANSFERRED to the Court of Appeals for the Third Circuit.ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Respondents' answer thereto, and Petitioner's Traverse, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is construed as a petition filed pursuant to 28 U.S.C. § 2255.
3. The petition is TRANSFERRED to the Court of Appeals for the Third Circuit.