Opinion
Civil Action 22-464
04-11-2022
LANCE RUCKER, Petitioner, v. SUPERINTENDENT OBERLANDER, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA and DISTRICT ATTORNEY FOR ALLEGHENY COUNTY, Respondents.
District Judge W. Scott Hardy
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 Writ of Habeas Corpus (ECF No. 1) be dismissed for lack of jurisdiction and that a certificate of appealability be denied.
II. REPORT
Petitioner Lance Rucker (“Petitioner”) has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The petition challenges Petitioner's judgment of sentence entered by the Court of Common Pleas of Allegheny County on April 23, 2001, at CP-02-CR-0011745-1997 and CP-02-CR-0012372-1997. Because Petitioner has previously challenged this same judgment of sentence in a habeas petition pursuant to 28 U.S.C. § 2254, and because Petitioner has not received the requisite permission from the Third Circuit Court of Appeals to challenge his judgment of sentence again in another habeas petition, the instant habeas petition is subject to dismissal for lack of jurisdiction.
A. Relevant Procedural Background
The relevant procedural background for this case comes from the Court's Memorandum Opinion dated May 24, 2018, filed at case number 2:17-cv-01258. Citations to authority can be found in that Opinion.
On September 9, 1997, Petitioner was charged with one count of criminal homicide at CP-02-CR-0011745-1997, and Petitioner was charged with one count each of robbery, firearms not to be carried without a license, impersonating a public servant, and criminal conspiracy at CP-02-CR-0012372-1997. Petitioner was ultimately convicted of second degree murder, robbery, firearms not to be carried without a license, impersonating a public servant and criminal conspiracy. On February 5, 1998, Petitioner was sentenced to life imprisonment without parole.
The charges arose from the September 8, 1997 robbery and murder of Frank Ventrosco at his home in the City of Pittsburgh. Petitioner and two other men had gone to Mr. Ventrosco's house with the intent of stealing a large amount of marijuana and cocaine they believed was inside. As a ruse to gain entrance to the house, Petitioner banged on the door and announced to Mr. Ventrosco that he was a City of Pittsburgh Police Officer. Petitioner then pointed a gun at Mr. Ventrosco, and as Mr. Ventrosco held his hands in the air, Petitioner fired a fatal shot directly into his stomach.
On September 13, 1999, the Pennsylvania Superior Court affirmed Petitioner's judgment of sentence. However, on April 25, 2000, the Pennsylvania Supreme Court reversed his judgment of sentence and awarded him a new trial. After a new jury trial, Petitioner was again convicted of second degree murder, robbery, firearms not to be carried without a license, impersonating a public servant, and criminal conspiracy. On April 23, 2001, he was again sentenced to life imprisonment. The Pennsylvania Superior Court affirmed Petitioner's judgment of sentence on August 20, 2002, and Petitioner did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.
Through counsel, Petitioner filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”) on September 22, 2003. An amended PCRA petition was filed on October 7, 2003, but it was dismissed on October 9, 2003. On May 10, 2005, the Pennsylvania Superior Court reversed the judgment of the PCRA court and remanded the case for a hearing. On October 11, 2005, the PCRA court reinstated Petitioner's right to file a petition for allowance of appeal in the Pennsylvania Supreme Court. Said petition was filed on November 1, 2005, and it was subsequently denied on March 7, 2006.
Another PCRA petition was filed by Petitioner through counsel on September 21, 2006, and it was dismissed by the PCRA court on November 1, 2006. The Pennsylvania Superior Court affirmed the dismissal of the PCRA petition on January 8, 2008. The Pennsylvania Supreme Court denied the petition for allowance of appeal on September 12, 2008.
Petitioner filed another PCRA petition on October 31, 2008, which was subsequently dismissed on December 22, 2008. No appeal was filed.
Petitioner filed another PCRA petition on June 17, 2009, which was dismissed on July 7, 2009. The Pennsylvania Superior Court affirmed the dismissal of the PCRA petition on August 13, 2010. Reargument was denied on October 22, 2010, and no petition for allowance of appeal followed.
On January 20, 2011, Petitioner filed a petition for writ of habeas corpus in this Court at Civil Action No. 11-82. The petition was dismissed as untimely and a certificate of appealability was denied on August 30, 2011. A certificate of appealability was denied by the Third Circuit Court of Appeals on March 9, 2012, and Petitioner's request for rehearing en banc was denied on April 9, 2012. Petitioner filed a petition for writ of certiorari in the United States Supreme Court that was denied on October 1, 2012.
Petitioner returned to the state court and filed another PCRA petition on November 27, 2012. That petition was dismissed on January 7, 2013. The Pennsylvania Superior Court affirmed the dismissal of the PCRA petition on October 2, 2013. Petitioner's petition for allowance of appeal was denied on February 26, 2014, and his application for reconsideration was denied on April 4, 2014.
On May 22, 2014, Petitioner returned to this Court and filed a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) in Civil Action No. 11-82. The motion was denied on June 23, 2014.
On September 14, 2015, Petitioner once again returned to state court and filed another PCRA petition that was dismissed on July 13, 2016. The Pennsylvania Superior Court affirmed the dismissal of PCRA relief on April 7, 2017. The Pennsylvania Supreme Court denied the petition for allowance of appeal on August 22, 2017.
Petitioner next returned to this Court and filed another habeas petition at Civil Action No. 17-1258. On May 24, 2018, that petition was dismissed for lack of jurisdiction and a certificate of appealability was denied. Petitioner did not appeal.
Petitioner filed numerous other PCRA petitions and post-conviction motions in state court throughout 2018, 2019 and 2020, all of which were denied. He also sought permission to file a second or successive 28 U.S.C. § 2254 habeas petition on February 12, 2019, but his application was denied by the Third Circuit on March 8, 2019. See In re: Lance Rucker, 19-1347 (3d Cir. Mar. 8, 2019).
Petitioner has now returned to this Court and filed yet another 28 U.S.C. § 2254 habeas petition. In the most recent petition, his third, Petitioner raises a number of claims, including, trail court error by failing to comply with the Superior Court's remand instructions in its Order dated May 10, 2005, trial court error by removing Petitioner's counsel of choice following the remand and ineffective assistance of the new counsel. In his brief in support of his petition, Petitioner also appears to raise an Apprendi violation.
Apprendi v. New Jersey, 530 U.S. 466 (2000)
B. Second or Successive Habeas Petitions
The 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 third habeas petition challenging his judgment of sentence from April 23, 2001, his first one being filed at Civil Action No. 11-82 on January 20, 2011. Petitioner's request for a certificate of appealability in that case was denied by the Third Circuit Court of Appeals and his request for a writ of certiorari was denied by the United States Supreme Court. To date, Petitioner has not been granted permission to file a second or successive habeas petition challenging the same judgment of sentence. Thus, it is clear that the instant habeas petition is an unauthorized petition over which this Court lacks jurisdiction.
C. 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 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 foregoing reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) be dismissed for lack of jurisdiction and that a certificate of appealability be denied.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, Petitioner is allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Failure to file timely objections will constitute a waiver of any appellate rights.