Opinion
Civil Action 2: 21-cv-1004
07-30-2021
DUANE BROCK THOMAS, Petitioner, v. SUPERINTENDENT CLARK, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, AND THE DISTRICT ATTORNEY OF WASHINGTON COUNTY, Respondents.
Cathy Bissoon United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge
I. RECOMMENDATION
Petitioner, Duane Brock Thomas (“Thomas”), is a state prisoner. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges the validity of his conviction that was obtained at Case No. CP-63-CR-0000165-2009 in the Court of Common Pleas of Washington County. (ECF No. 1-1). The Court may dismiss the petition prior to service if it plainly appears that Thomas is not entitled to habeas relief. That is the case here because the instant petition is a second or successive petition and Thomas does not assert that he has received from the United States Court of Appeals for the Third Circuit an order authorizing this Court to consider it, as required by 28 U.S.C. § 2244(b)(3)(A). Accordingly, it is respectfully recommended that the instant petition be summarily dismissed for lack of jurisdiction and that a certificate of appealability be denied. 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts.
II. REPORT
A. Relevant Background
Following a jury trial presided over by the Honorable Janet Moschetta Bell of the Court of Common Pleas of Washington County, Thomas was convicted of rape, aggravated assault, and related offenses. On January 22, 2010, he was sentenced to an aggregate sentence of fourteen and one-half (14-1/2) years to twenty-nine (29) years imprisonment.
On April 4, 2015, Thomas filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was docketed at Case No. 2: 15-cv-0447 and assigned to the Honorable Cathy Bissoon and referred to the undersigned Magistrate Judge. In that petition, Thomas raised six grounds for relief based on alleged ineffective assistance of counsel. On April 23, 2018, the undersigned issued a Report and Recommendation (“R&R”) recommending that the petition be denied and that a certificate of appealability be denied. (ECF No. 25). Thomas filed timely objections. (ECF No. 28). After a de novo review, on June 26, 2018, Judge Bissoon adopted the R&R as the Opinion of the Court, denied the petition, denied a certificate of appealability, and entered final judgment. (ECF Nos. 29 and 30). Thomas filed a Notice of Appeal (ECF No. 21), and on March 15, 2021, the United States Court of Appeals for the Third Circuit denied Thomas's request for a certificate of appealability. (ECF No. 41).
On July 29, 2021, the Clerk of Court received the instant federal habeas petition, in which Thomas again challenges his 2010 judgment of sentence, but on two new grounds: (1) his sentence was an “illegal and unconstitutional mandatory minimum sentence” and (2) he was subjected to an unconstitutional trial based on a Batson violation.
B. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") mandates that before a petitioner may file a second or successive habeas corpus petition under 28 U.S.C. § 2254 challenging the same judgment of sentence that he previously challenged in federal habeas, he must 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 within thirty days whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). 28 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).
Thomas does not assert that he has received authorization from the United States Court of Appeals for the Third Circuit Court of Appeals to file a second or successive petition. In the absence of prior authorization by the Court of Appeals for the Third Circuit, this Court lacks jurisdiction to consider this petition.
This Report and Recommendation should not be read as a comment upon the merits of any claim that Thomas could raise in a second or successive habeas petition challenging his judgment of sentence, or whether such a petition would be subject to dismissal on other grounds.
C. Certificate of Appealability
Reasonable jurists would all agree that Thomas has not shown that he obtained leave from the United States Court of Appeals for the Third Circuit to file a second or successive habeas corpus petition. Reasonable jurists would also agree that this Court lacks jurisdiction and authority to consider the second or successive habeas petition without proof of such leave. Accordingly, it is recommended that a certificate of appealability be denied.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be summarily dismissed and that a certificate of appealability be denied.
Petitioner is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner may file written objections to this Report and Recommendation by August 16, 2021. Petitioner is advised that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).