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Nicholas v. Stewart

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


June 27, 2008

EDWARD JAMES NICHOLAS, PETITIONER,
v.
MARSHA STEWART, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Petitioner Edward J. Nicholas, an inmate currently confined at the Coal Township State Correctional Institution ("SCI-Coal Township") in Coal Township, Pennsylvania, commenced this case by filing a pro se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 1.) He also has requested leave to proceed in forma pauperis. (Doc. 2.) Petitioner has filed seventeen (17) prior petitions seeking habeas relief in the Middle District of Pennsylvania pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the instant Petition will be dismissed as a successive petition pursuant to 28 U.S.C. § 2244(b).

DISCUSSION

The pertinent authority for dismissing successive habeas corpus petitions is found in 28 U.S.C. § 2244(a) and Rule 9*fn1 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977). Prior to the 1996 amendments, § 2244 authorized dismissal of a successive habeas petition "that presented no new ground not heretofore presented and determined." McCleskey v. Zant, 499 U.S. 467, 483 (1991). Section 2244 provided:

(a) No circuit or district judge shall be required to entertain an application for writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for writ of habeas corpus and the petition presents no new ground not heretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.

The Supreme Court in McCleskey expanded § 2244 to also preclude a person from raising a new claim in a subsequent habeas petition that he could have raised in his first habeas petition:

Our recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.

McCleskey, 499 U.S. at 489 (citations omitted).

In relevant part, § 2244(a) now provides: No circuit or district judge shall be required to entertain an application for writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.*fn2 As previously noted, Petitioner has filed seventeen prior habeas petitions with this Court pursuant to 28 U.S.C. § 2254. In his instant Petition, Nicholas states that he was arrested on August 22, 1997 by the Harrisburg Police and charged with robbery, aggravated assault, and two counts of conspiracy. (Doc. 1 at 1.) He requests that those charges, which are listed as "inactive" on the magistrate's docket, be "terminated."(Id.) His previous petitions, which similarly challenged the legality of his conviction and sentence in the Dauphin County Court of Common Pleas following his August 22, 1997 arrest, were either dismissed as time-barred or as successive petitions. After reviewing the instant Petition, this Court concludes that Petitioner's challenge to the charges filed against him in Dauphin County is similar in all respects to the issues raised in his earlier petitions.

Thus, Petitioner has failed to show that his instant Petition falls within the statutory exceptions outlined above. Further, there is no indication that Petitioner applied for and was granted leave to file a second or successive habeas corpus petition by the Third Circuit Court of Appeals. Under the requirements set forth in § 2244(b), Petitioner's present successive Petition cannot be entertained by this Court, and the Petition will be summarily dismissed.

An appropriate Order follows.

ORDER

NOW, THIS 27th DAY OF JUNE, 2008, in accordance with the foregoing Memorandum,

IT IS HEREBY ORDERED THAT:

1. Petitioner'sMotion for Leave to Proceed in forma pauperis (Doc. 2) is GRANTED solely for the purpose of filing the instant habeas petition.

2. The Petition For Writ of Habeas Corpus (Doc. 1) is DISMISSED as a successive petition under 28 U.S.C. § 2244(b).

3. The Clerk of Court is directed to close this case.

4. There is no basis for the issuance of a certificate of appealability.

A. RICHARD CAPUTO United States District Judge


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