On Appeal from the United States District Court for the Western District of Pennsylvania. D.C. Civil No. 93-00862.
Before: Greenberg and McKEE, Circuit Judges and Pollak*fn* , District Judge
In 1981 John E. Dolenc, Jr., was charged with killing his wife, Patricia Dolenc, in July of 1975. The case came on for trial before a jury in the Court of Common Pleas of Allegheny County, Pennsylvania. At the Conclusion of the trial, the jury [ILLEGIBLE TEXT]
In 1981 John E. Dolenc, Jr., was charged with killing his wife, Patricia Dolenc, in July of 1975. The case came on for trial before a jury in the Court of Common Pleas of Allegheny County, Pennsylvania. At the Conclusion of the trial, the jury returned a verdict finding John Dolenc guilty of murder in the first degree. On September 21, 1981, Dolenc was sentenced to life imprisonment.
Since he was sentenced, Dolenc has challenged his conviction in the Pennsylvania courts both on direct appeal and by various collateral proceedings. In addition, Dolenc has filed a series of petitions for habeas corpus in the United States District Court for the Western District of Pennsylvania. All Dolenc's attempts to overturn his conviction have been unsuccessful.
Now before this court is an appeal by the Commonwealth*fn1 from Judge Standish's order of November 10, 1993, dismissing the fourth and most recent of Dolenc's federal habeas petitions. The fact that the Commonissal of the petition poses the jurisdictional question we now confront: Is the Commonwealth, in some legally cognizable sense, aggrieved by, and hence entitled to seek appellate review of, Judge Standish's order? To answer this question, we must look more closely at the order of dismissal.
Judge Standish's order adopted "as the opinion of the court" a report and recommendation filed by Magistrate Judge Sensenich, on October 13, 1993. That report and recommendation came to two Conclusions of law:
First, the report and recommendation rejected the Commonwealth's submission that Dolenc's fourth habeas corpus petition challenging the same conviction constituted an abuse of the writ that precluded access to federal habeas corpus: Magistrate Judge Sensenich determined that the federal constitutional claims central to Dolenc's fourth habeas petition were rooted in a decision of the Pennsylvania Supreme Court, Commonwealth v. Myers, 530 Pa. 396, 609 A.2d 162, which was handed down on May 22, 1992, "after petitioner's previous habeas petitions were dismissed," and therefore the claims "could neither have been presented nor addressed previously."
Second, the report and recommendation went on to conclude that the new constitutional claims had not been "'fairly presented'" to the Pennsylvania courts and, in consequence, Dolenc, not having exhausted available state remedies, was not yet in a position to present those claims to a federal district court.
The Commonwealth now seeks review of Judge Standish's order dismissing Dolenc's fourth federal petition for habeas corpus. On the face of it, the Commonwealth's posture as appellant is unusual: having prevailed in the district court, the Commonwealth would not seem to be so positioned as to be able to complain of the victory it won. The Commonwealth is not, however, complaining about the district court's order, which dismissed Dolenc's habeas petition. Rather, what the Commonwealth is really complaining about is Judge Standish's adoption of the opinion of Magistrate Judge Sensenich -- or, to be more precise, the first portion of that opinion : the ruling that Dolenc's fourth habeas petition was not an abuse of the writ precluding Dolenc from seeking federal habeas. The Commonwealth fears that the ruling is one which may return to haunt it if Dolenc, after unsuccessfully exhausting his state remedies, returns to the district court to seek federal habeas for a fifth time. The Commonwealth anticipates that on such a renewed federal habeas application the Commonwealth's renewed abuse-of-the-writ plea would necessarily be overcome by a determination that Judge Standish's adoption of Magistrate Judge Sensenich's opinion has made rejection of the Commonwealth's abuse-of-the-writ contention law of the case.
If the Commonwealth is correct in its prediction that the opinion would operate as law of the case, the Commonwealth would appear to be on firm ground in contending that it has standing to appeal. This would be so because, although "ordinarily, a prevailing party cannot appeal from a district court judgment in its favor," , there are "exceptions to this rule," and "one exception arises when the prevailing party is aggrieved by the collateral estoppel effect of a district court's rulings." Ibid. But we think the Commonwealth has magnified the legal momentum of the portion of the magistrate Judge's opinion, adopted as the opinion of the district court, to which it takes exception. We perceive no reason why Judge Standish would be precluded from re-examining the abuse-of-the-writ issue if Dolenc were again to petition for federal habeas. And, a fortiori, this court would ...