Opinion
Civil Action No. 03-6638.
October 25, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed under § 2254, by an INS detainee, against the Commonwealth of Pennsylvania. In this petition, Mr. McKenzie seeks to have his underlying state conviction for aggravated assault and related offenses vacated. For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be transferred to the Third Circuit for a determination of the authority of the District Court to consider this successive habeas petition.
I. BACKGROUND
In preparing this Report and Recommendation I have reviewed the following documents: Mr. McKenzie's original pro se § 2241 petition [Docket Entry No. 1], the amended habeas petition filed by counsel [Docket Entry No. 9], the Commonwealth's response to the amended habeas petition [Docket Entry No. 23], Petitioner's reply memorandum to the Commonwealth's response [Docket Entry No. 25], and Petitioner's pro se October 3, 2004 letter reply to the Commonwealth's response.
As explained in the text below, Petitioner has two habeas petitions, the abovecaptioned matter and a pro se habeas petition against the United States [Civil Action No. 04-1001], currently pending before the Honorable John R. Padova. These habeas actions are related and overlapping. When citing to a pleading, I will identify, by civil action number, the habeas action in which it has been filed.
Petitioner, Dean McKenzie, is a native and citizen of Jamaica. He entered the United States legally on October 23, 1980.
Civil Action No. 04-1001, Government's Response to Habeas Petition [Docket Entry No. 8]:Exhibit 4.
On September 30, 1991, following a jury trial before the Honorable Samuel Lehrer of the Philadelphia Court of Common Pleas, Petitioner was convicted of three counts of aggravated assault and one count of possession of an instrument of crime. He was sentenced to an eleven to twenty-five year term of imprisonment.
Civil Action No. 03-6638, Commonwealth's Response to Habeas Petition [Docket Entry No. 23]: Exhibit "C" (April 15, 1992 Opinion). The October 1991 trial was Petitioner's second trial on these charges. An earlier conviction on the same charges was reversed. On direct appeal, the Superior Court found that the trial court had erred at Petitioner's first trial in failing to allow Petitioner to call Robin Watkins, Jr. as a defense witness. Id.: Exhibit "B" ( Commonwealth v. McKenzie, 581 A.2d 655 (Pa.Super. 1990)).
Petitioner was released on parole in September 2001.
Civil Action No. 03-6638, Petitioner's Amended Habeas Petition [Docket Entry No. 9] at p. 2.
On September 15, 2003, the Executive Office of Immigration Review issued a Notice to Appear in Removal Proceedings ["NTA"] to Petitioner. The NTA charged Mr. McKenzie with being subject to removal from the United States under §§ 237(a)(2)(A)(iii) and 237(a)(2)(C) of the Immigration and Nationality Act, based upon his 1991 state convictions.
Civil Action No. 04-1001, Government's Response to Habeas Petition [Docket Entry No. 8]:Exhibit 6.
On December 11, 2003, following a removal hearing before Immigration Judge Grace A. Sease, Petitioner's application for asylum and his application for withholding of removal were denied, and an order of removal to Jamaica was issued. When Petitioner waived his right of appeal at the December 11, 2003 hearing, the order of removal became administratively final.
Civil Action No. 04-1001, Government's Response to Habeas Petition [Docket Entry No. 8]:Exhibit 7.
See 8 C.F.R. § 1003.39, which reads: "Except when certified to the Board, the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first."
Petitioner is currently being detained in the custody of the Department of Homeland Security at the York County Prison.
On December 10, 2003, Petitioner filed the above-captioned habeas petition under § 2241 against the Commonwealth of Pennsylvania. In his pro se petition, Mr. McKenzie requested that his underlying state conviction be vacated.
Civil Action No. 03-6638, Original Habeas Petition (entitled "Emergency Request for Writ of Habeas Corpus Relief")[Docket Entry No. 1].
By Order dated December 11, 2003, the Honorable John R. Padova appointed counsel, Stephen J. Britt, Esq., to represent Petitioner in Civil Action No. 03-6638. At that time, Judge Padova enjoined the United States from deporting Mr. McKenzie during the pendency of his habeas litigation, and until further notice of the court.
Civil Action No. 03-6638 [Docket Entry Nos. 2 and 3].
Counsel filed an amended habeas petition in the above-captioned matter on January 21, 2004. The amended petition was filed under 28 U.S.C. § 2254. It seeks to challenge Petitioner's underlying state conviction based on newly discovered evidence. The United States is not a party to the § 2254 action, but is named as Respondent in Civil Action No. 04-1001.
Civil Action No. 03-6638, Amended Habeas Petition [Docket Entry No. 9]. Before counsel filed the amended habeas petition, Mr. McKenzie filed, pro se, two motions for release from custody. I denied both in a March 25, 2004 Order. Id. [Docket Entry No. 13].
Civil Action No. 04-1001 was brought under § 2241 and challenges Petitioner's continuing detention by the Department of Homeland Security.
The Commonwealth has responded to Petitioner's § 2254 petition, arguing that Civil Action No. 03-6638 should be dismissed or transferred to the Third Circuit because it is a successive petition under 28 U.S.C. § 2244(b)(2), (3). While Mr. McKenzie was still serving his state sentence for the aggravated assault and weapons conviction, he filed a habeas petition in this court on April 3, 1997. Mr. McKenzie's first habeas petition was dismissed on the merits, based upon a finding that all seven of the claims raised had been procedurally defaulted.
Civil Action No. 03-6638, Commonwealth's Answer [Docket Entry No. 23] at pp. 6-8.
Id.: Exhibit "E" (October 22, 1997 Report and Recommendation in Danny McKenzie v. Commonwealth of PA, et al., CA No. 97-2320) at pp. 1-2.
Danny McKenzie v. Commonwealth, CA No. 97-2320: November 4, 1997 Order of the Honorable J. Curtis Joyner [Docket Entry No. 21]. Petitioner appealed the dismissal of his habeas claims. On April 16, 1998, the Third Circuit, noting that Petitioner was procedurally barred from presenting his claims, denied his request for a certificate of appealability. Id.: [Docket Entry No. 24].
In a reply to the Commonwealth's response, Counsel on behalf of Petitioner agrees that transfer of Civil Action No. 03-6638 to the Third Circuit is required under 28 U.S.C. § 1631.
Civil Action 03-6638, Petitioner's Reply Memorandum [Docket Entry No. 25] at pp. 4-5.
By letter addressed to me and dated October 3, 2004, Mr. McKenzie opposes the transfer of the above-captioned matter to the Third Circuit. He appears to be arguing that his current habeas petition should not be transferred because an earlier habeas petition was lost "due to the court's negligence not mine." Therefore, according to Petitioner, the instant habeas petition is not successive and should be considered on the merits.
This document is entitled "RE: McKenzie v. Com. Of Penn., No. 03-6638 Commonwealth Motion to Dismiss Or Transferr To The Third Circuit."
Id. at pp. 3-4. Petitioner makes reference to prior habeas filings dating back as early as 1993. The pleadings before me indicate that Petitioner's first habeas petition related to the aggravated assault conviction at issue was filed in 1997. In 1993, Petitioner was pursuing a direct appeal of his state conviction in the Pennsylvania Superior Court. See Civil Action No. 03-6638, Commonwealth's Answer [Docket Entry No. 23]: Exhibit "F" (May 19, 2003 Superior Court Opinion).
II. DISCUSSION.
Existing habeas corpus law was "substantially revised" by the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA"] (effective date April 24, 1996). Replacing the old "abuse of writ" standard are new substantive "gatekeeping" provisions which are "more rigorous" than the pre-AEDPA standards. See 28 U.S.C. § 2244(b). See also In Re Minarik, CA No. 97-8146, 1999 WL 44825 at *8 (3d Cir. February 3, 1999) ("These substantive gatekeeping provisions were intended to reduce the universe of cases in which a habeas petition may go forward on a second or successive petition").Under the current law, "[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 appropriate course is to transfer a successive petition to the Circuit Court. Id., 1999 WL 44825 at *19 ("We hold that anyone seeking to file a second or successive petition under 18 [sic] U.S.C. § 2254 after April 24, 1996, must move in the appropriate Court of Appeals for an order authorizing the District Court to consider the application.).
In the instant case, it is clear that Mr. McKenzie's 1997 habeas petition was dismissed on the merits. Therefore, the instant habeas petition must be sent to the Third Circuit for a determination of whether he may proceed on the current § 2254 habeas petition.
The arguments raised by Mr. McKenzie in his October 3, 2004 letter are more properly presented to the Third Circuit, which is charged with the obligation to make a determination of whether the petitioner makes a prima facie showing that the successive petition satisfies the requirements of § 2244(b). See 28 U.S.C. § 2244(b)(3)(C).
RECOMMENDATION
Consistent with the above, it is recommended that Mr. McKenzie's § 2254 habeas petition be transferred to the Third Circuit for a determination of the authority of the District Court to consider this successive petition.