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RAUSO v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE

United States District Court, E.D. Pennsylvania


May 20, 2004.

GENNARO RAUSO
v.
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.

  ORDER

  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 jurisdiction; and

  3. A certificate of appealability is not granted.


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