Opinion
Civil Action No. 19 - 1042
07-08-2020
THOMAS P. RICHARD, SR., Petitioner, v. COMMONWEALTH OF PENNSYLVANIA, THE DISTRICT ATTORNEY OF THE COUNTY OF WESTMORELAND, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
District Judge Nora Barry Fischer
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss the Petition for Writ of Habeas Corpus (ECF No. 31) be granted to the extent that it seeks dismissal for lack of jurisdiction and that the Petition for Writ of Habeas Corpus (ECF No. 16) be dismissed for lack of jurisdiction. To the extent that one is required, it is also recommended that a Certificate of Appealability be denied.
II. REPORT
Petitioner Thomas P. Richard, Sr. ("Petitioner") initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Eastern District of Pennsylvania on January 19, 2018. (ECF No. 1.) By Order dated February 1, 2018, the Eastern District court granted Petitioner leave to proceed in forma pauperis and directed him to refile his petition on the standard form used for petitions filed pursuant to 28 U.S.C. § 2254. (ECF No. 3.) In response to that Order, Petitioner filed an appeal to the Court of Appeals for the Third Circuit and a Motion to Stay the case pending the outcome of the interlocutory appeal. (ECF Nos. 4 & 5.) The Eastern District court granted Petitioner's Motion to Stay and denied his subsequently filed Motion for Reconsideration of its February 1, 2018 Order. (ECF Nos. 7-9.) On August 1, 2018, the Third Circuit issued an Order denying Petitioner a certificate of appealability after finding that he could not use 28 U.S.C. § 2241 as an alternative to 28 U.S.C. § 2254 to attack his state court judgment of sentence. (ECF No. 18.) By Order dated April 11, 2019, the Eastern District reopened this case and gave Petitioner additional time by which to file his petition on the standard form used for petitions filed pursuant to 28 U.S.C. § 2254. (ECF No. 12.) Instead of doing so, however, Petitioner filed a Motion for Reconsideration, which the Eastern District court denied on June 17, 2019. (ECF Nos. 12 & 14.) On July 15, 2019, Petitioner filed what he titled a "Prima Facie Statement on Showing How the Standards of § 2244(b) Are Met," and a Petition for Writ of Habeas Corpus ("Petition") on the standard form used for petitions filed pursuant to 28 U.S.C. § 2254. (ECF Nos. 15 & 16.) Since the judgment of sentence Petitioner is seeking to challenge in his Petition was rendered by the Court of Common Pleas of Westmoreland County, Pennsylvania, which is located in the Western District of Pennsylvania, the Eastern District transferred the case to this Court by Order dated July 17, 2019. (ECF No. 17.) The Petition was then served on Respondents who filed a Motion to Dismiss the Petition on April 6, 2020. (ECF No. 31.) While Petitioner was invited to file a response to the Motion to Dismiss, he did not do so. (ECF No. 34.) Accordingly, the Motion to Dismiss is ripe for review.
A. Relevant Procedural Background
The relevant procedural history for this case is as follows. Petitioner is presently serving a sentence of 25½ to 51 years of incarceration after he was convicted by a jury of rape, involuntary deviate sexual intercourse, aggravated indecent assault, simple assault, endangering the welfare of children and corruption of the morals of a minor. See Commonwealth v. Richard, CP-65-CR-3607-1999 (Westmoreland Cty. Ct. of Comm. Pleas). Petitioner's judgment of sentence was entered by the Westmoreland County Court of Common Pleas on October 25, 2000, and it was affirmed by the Pennsylvania Superior Court on April 12, 2002. See Commonwealth v. Richard, 66 WDA 2001 (Pa. Super. Ct.). His petition for allowance of appeal was denied by the Pennsylvania Supreme Court on August 27, 2002. See Commonwealth v. Richard, 242 WAL 2002 (Pa.).
Petitioner next filed a petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA") on August 27, 2003. Those proceedings concluded when the PCRA court denied PCRA relief on January 13, 2005. The Superior Court affirmed the denial of PCRA relief on March 13, 2006. See Commonwealth v. Richard, 297 WDA 2005 (Pa. Super. Ct.). The Pennsylvania Supreme Court denied his petition for allowance of appeal on August 29, 2006. See Commonwealth v. Richard, 203 WAL 2006 (Pa.).
On September 11, 2006, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. See Richard v. Diguglielmo, No. 2:06-cv-4041 (E.D. Pa.) Since Petitioner was challenging his judgment of sentence out of Westmoreland County, which is located in the Western District of Pennsylvania, the petition was transferred to this Court on January 5, 2007. See Richard v. Wenerowicz, No. 2:07-cv-16 (W.D. Pa.) On January 8, 2008, the Honorable Robert C. Mitchell entered an order dismissing the petition and denying a certificate of appealability. Id., at ECF Nos. 83 & 84. On March 19, 2008, the Third Circuit also denied Petitioner a certificate of appealability. See Richard v. Diguglielmo, C.A. No. 08-1397 (3d Cir.).
On February 25, 2009, Petitioner filed, in the Third Circuit, an application for leave to file a second or successive habeas petition pursuant to 28 U.S.C. § 2244. See In Re: Thomas P. Richard, Sr., C.A. No. 09-1513 (3d Cir.). His application was denied by the Third Circuit on April 9, 2009. Id.
On September 21, 2009, Petitioner filed another petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. See Richard v. Diguglielmo, No. 2:09-cv-4293 (E.D. Pa.). However, the petition was transferred to this Court since Petitioner was again attacking his judgment of sentence was rendered by the Court of Common Pleas of Westmoreland County. See Richard v. Diguglielmo, No. 2:09-cv-1628 (W.D. Pa.). On January 29, 2010, the Honorable Joy Flowers Conti entered an ordering transferring the petition to the Third Circuit pursuant to 28 U.S.C. § 1631 to be treated as an application to file a second or successive habeas petition pursuant to 28 U.S.C. § 2254 as provided for by 28 U.S.C. § 2244. Id., at ECF No. 14. Petitioner also appealed the Court's Order treating his petition as a second or successive petition. Id., at ECF No. 15. The Third Circuit denied Petitioner's application to file a second or successive habeas petition on March 31, 2010, and it dismissed his appeal on December 15, 2010. Id., at ECF Nos. 18 & 19. See also In Re: Thomas Paul Richard, Sr., C.A. No. 10-1354 (3d Cir.); Richard v. Superintendent, SCI Graterford, C.A. No. 10-1530 (3d Cir.).
On August 19, 2011, Petitioner filed in this Court a third petition for writ of habeas corpus challenging his judgment of sentence entered in Westmoreland County. See Richard v. Jollie, No. 2:11-cv-1075 (W.D. Pa.) On October 5, 2011, Judge Conti entered an order transferring the petition to the Third Circuit to be treated as another application to file a second or successive habeas petition pursuant to 28 U.S.C. § 2254 as provided for by 28 U.S.C. § 2244. On November 10, 2011, the Third Circuit denied Petitioner's application. In Re: Thomas Paul Richard, Sr., C.A. No. 11-3744 (3d Cir.).
On June 6, 2012, Petitioner filed in this Court a fourth petition for writ of habeas corpus challenging the same Westmoreland County judgment of sentence. See Richard v. Wenerowicz, No. 2:12-cv-758 (W.D. Pa.). On July 12, 2012, Judge Mitchell entered an order transferring the petition to the Third Circuit to be treated as another application to file a second or successive habeas petition pursuant to 28 U.S.C. § 2254 as provided for by 28 U.S.C. § 2244. On November 27, 2012, the Third Circuit again denied Petitioner's application. In Re: Thomas Paul Richard, Sr., C.A. No. 12-3876 (3d Cir.).
On January 18, 2018, Petitioner filed in the Eastern District of Pennsylvania a fifth petition for writ of habeas corpus challenging the same judgment of sentence. See Richard v. Peck, No. 2:18-cv-234 (E.D. Pa.). Once again, the petition was transferred to this Court as Westmoreland County which is located in the Western District. See Richard v. Peck, No. 2:18-130 (W.D. Pa.). On April 3, 2018, the Honorable Nora Barry Fischer dismissed the petition as a successive petition and denied Petitioner a certificate of appealability. Id., at ECF No. 19. On July 20, 2018, the Third Circuit also denied Petitioner a certificate of appealability. See Richard v. District Attorney Westmoreland County, C.A. No. 18-1914 (3d Cir.).
In actuality, Petitioner labeled his petition a civil rights complaint.
After it was transferred to this Court, an order was entered directing the Clerk of Court to re-docket the complaint as a petition for writ of habeas corpus. Petitioner appealed the Court's order treating his complaint as a habeas corpus petition, but the Third Circuit dismissed the appeal for lack of appellate jurisdiction. See Richard v. Peck, C.A. No. 18-1363 (3d Cir.).
The Third Circuit also found that the Court properly construed his complaint as a habeas petition pursuant to 28 U.S.C. § 2254.
As stated in the beginning of this Report, Petitioner initiated the instant habeas corpus proceeding, his sixth, in the Eastern District on January 19, 2018, and the proceedings were transferred to this Court on July 17, 2019. (ECF Nos. 1, 17.) On April 6, 2020, Respondents filed a Motion to Dismiss the petition, which is now ripe for review. (ECF No. 31.)
B. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("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).
As noted above, this is Petitioner's sixth petition challenging his judgment of sentence rendered in Westmoreland County, and, to date, the Third Circuit has not granted him authorization to file a second or successive petition. Therefore, it is clear that the instant petition is an unauthorized petition over which this Court lacks jurisdiction.
Nevertheless, it appears that the only argument Petitioner makes is that his sentence was rendered illegal by Alleyne v. United States, 133 S. Ct. 2151 (2013), wherein the United States Supreme Court held that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Id. at 2155. See also (ECF Nos. 15 & 16.) However, Alleyne was decided on June 17, 2013, long after Petitioner's judgment of sentence became final, and it is well settled that Alleyne does not apply retroactively to cases on collateral review. See United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014); United States v. Reyes, 755 F.3d 210, 212-13 (3d Cir. 2014). Indeed, "the decision to make Alleyne retroactive rests exclusively with the Supreme Court, which has not chosen to do so." Reyes, 755 F.3d at 213. Consequently, his claim would provide him with no basis for relief even if this Court had jurisdiction.
In sum, the Respondents' Motion to Dismiss should be granted to the extent that they seek dismissal of the Petition based on lack of jurisdiction and the Petition should be dismissed accordingly because Petitioner has not received authorization from the Third Circuit to file a second or successive habeas petition challenging his judgment of sentence rendered in Westmoreland County, which he previously challenged in 2:07-cv-16.
C. Certificate of Appealability
It is recommended that a Certificate of Appealability 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 his habeas petition is an unauthorized second or successive petition. 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 on the merits but on some procedural ground); Walker v. Government of the Virgin Islands, 230 F.3d 82, 89-90 (3d Cir. 2000).
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Motion to Dismiss the Petition for Writ of Habeas Corpus (ECF No. 31) be granted to the extent that it seeks dismissal for lack of jurisdiction and that the Petition for Writ of Habeas Corpus (ECF No. 16) be dismissed for lack of jurisdiction. To the extent that one is required, it is also recommended that a Certificate of Appealability be denied.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the parties shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date on which the objections are served to file its response. A party's failure to file timely objections will constitute a waiver of that party's appellate rights.
Dated: July 8, 2020.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Thomas P. Richard, Sr.
EM-8033
SCI Phoenix
1200 Mokychic Drive
Collegeville, PA 19426
Counsel for Respondents
(Via CM/ECF electronic mail)