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RAUSO v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE
May 20, 2004.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al
The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge
REPORT AND RECOMMENDATION
On September 27, 2003, Gennaro Rauso ("the petitioner") submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to
this court. On the same day, he submitted a motion in the Third Circuit
under 28 U.S.C. § 2244 seeking an order from the Third Circuit
authorizing him to file a second or successive habeas corpus petition in
this court. The court was not aware that the petitioner had filed this
motion in the Third Circuit. The importance of this motion shall be seen
in the course of this opinion.
The habeas petition filed in this court seeks to challenge the
petitioner's 1994 conviction in the Court of Common Pleas for
Philadelphia County in case number 9204-3482. The § 2244 motion the
petitioner filed in the Third Circuit indicates that the petitioner had
previously sought to challenge this same conviction in this court byway
of a habeas petition that was captioned by the Clerk of this Court as
96-5090. The prior habeas petition was resolved on the ground that all of
the petitioner's claims were procedurally defaulted. On October 24, 2003, the Third Circuit denied the petitioner's §
2244 motion.*fn1 In doing so, the Third Circuit noted that the prior
habeas petition (96-5090) had been dismissed for procedural default and
that procedural default is a dismissal on the merits for purposes of
requiring leave to file an application to file a second or successive
habeas petition.*fn2 The Third Circuit's order makes it clear that the
petitioner needed to file a § 2244 motion in the Third Circuit and to
obtain the Third Circuit's authorization before filing the instant habeas
petition. Since the Third Circuit has denied the petitioner authorization
to file the instant habeas petition, this court lacks jurisdiction to
consider it. See Robinson v. Johnson, 313 F.3d 128, 138-40 (3d
Cir. 2002). Therefore, the habeas petition should be dismissed.*fn3
The court will also consider whether to recommend granting a
certificate of appealability ("COA"). Because the court has disposed of
the petition on the ground that the court lacks jurisdiction to entertain
it, in order for the petitioner to obtain a COA, he must show "that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). In
Slack, the Supreme Court went on to explain that:
Where a plain procedural bar is present and the
district court is correct to invoke it to dispose
of the case, a reasonable jurist could not
conclude either that the district court erred in
dismissing the petition or that the petitioner
should be allowed to proceed further. In such a
circumstance, no appeal would be warranted.
Id. Further, the Supreme Court indicated that, since the
petitioner must make showings with respect to the procedural issue and
the underlying, constitutional issue, a court may resolve the COA
question if either showing is lacking. Id. at 484-85.
The court has concluded that it lacks jurisdiction over the habeas
petition based upon established Third Circuit precedent. Therefore, the
court finds that reasonable jurists would not debate the court's
conclusion that it lacks jurisdiction over the habeas petition.
The court's recommendation follows. RECOMMENDATION
AND NOW, this ___ day of May, 2004, for the reasons contained in the
preceding Report, it is hereby RECOMMENDED that the petition for a writ
of habeas corpus be DISMISSED for lack of jurisdiction. It is also
RECOMMENDED that a certificate of appealability not be granted.
AND NOW, this ___ day of ___, 2004, after careful and independent
consideration of the petition for a writ of habeas corpus, the response
thereto and after review of the Report and Recommendation of Diane M.
Welsh, United States Magistrate Judge, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DISMISSED for lack of
3. A certificate of appealability is ...
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