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Dandar v. Krysevig

May 27, 2010

RONALD G. DANDAR PETITIONER,
v.
MARK KRYSEVIG, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Baxter

District Judge McLaughlin

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

Petitioner Ronald G. Dandar has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant petition is at least the fourth federal habeas petition that he has filed with this Court in which he has challenged the sentence of imprisonment imposed upon him on February 6, 2004, by the Court of Common Pleas of Erie County. Because he did not receive from the United States Court of Appeals for the Third Circuit an order authorizing this Court to consider this successive habeas petition, as required by 28 U.S.C. § 2244(b)(3)(A), I recommend that it be dismissed for lack of jurisdiction and that a certificate of appealability be denied.

II. REPORT

A. Relevant Factual and Procedural History

On March 21, 1983, an Erie County jury convicted Petitioner at Criminal Docket Nos. 1982-1462 through 1467 of various crimes, including criminal attempt, unsworn falsifications, tampering with records, forgery, theft by deception, and criminal attempt at forgery. On August 31, 1983, the Honorable William E. Pfadt sentenced him to an aggregate period of incarceration of 15-30 years, plus 30 years of probation. (See 8/31/1983 Tr. at 31-35). Petitioner received his probation sentences on the convictions at Criminal Docket Nos. 1465, 1466, and 1467 of 1982. (Id.)

Petitioner appealed to the Superior Court of Pennsylvania, and that court affirmed on December 13, 1985. The Pennsylvania Supreme Court denied a petition for allowance of appeal on June 12, 1989, and Petitioner did not seek certiorari in the United States Supreme Court. (See Commonwealth v. Dandar, No. 662 WDA 2004, slip op. at 2-4 (Pa.Super. Apr. 15, 2005) (summarizing procedural history) (located in the State Court Record ("SCR") at Item No. 186)).

Petitioner filed a series of state collateral appeals, all of which were denied. (See id. at 2). On or around July 6, 2000, he filed a post-conviction motion pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). While that PCRA motion was pending, the Pennsylvania Board of Probation and Parole (the "Board") granted him parole and he was released on or around November 7, 2000. The Court of Common Pleas eventually denied the pending PCRA motion, and on or around May 1, 2001, the Superior Court affirmed on the basis that the motion had not been timely filed.

On or around July 23, 2002, Petitioner (who was on parole at the time) filed with this Court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenged the August 31, 1983, judgment of sentence. That petition was docketed as Dandar v. Commonwealth, et al., 1:02-cv-222 (W.D. Pa.) and assigned to the Honorable Sean J. McLaughlin, who referred the case to me. I subsequently issued a Report and Recommendation ("R&R") advising that the petition be dismissed as untimely under the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and that a certificate of appealability be denied. Judge McLaughlin adopted the R&R as the Opinion of the Court, dismissed the petition, and denied a certificate of appealability. The Court of Appeals denied Petitioner's subsequent request for a certificate of appealability. See Oct. 27, 2005, Order in Dandar v. Commonwealth, et al., Court of Appeals Docket No. 05-3731 (3d Cir.).

In the meantime, Petitioner was recommitted as a technical parole violator and, in addition, faced revocation of the sentences of probation that he had received at Criminal Docket Nos. 1465 and 1467 of 1982. On February 5, 2004, the Honorable William R. Cunningham presided over a revocation hearing on the sentences of probation. (2/5/2004 Hr'g Tr. at 4). At that hearing, Petitioner was informed that if Judge Cunningham revoked his probation and imposed any new sentences, he could appeal that judgment of sentence within 30 days "or you would lose your right to appeal the case." (Id. at 3). The next day, on February 6, 2004, Judge Cunningham issued an order revoking the sentences of probation and sentencing Petitioner to 23 1/2 to 47 years' imprisonment. (See 2/6/2004 Hr'g Tr. at 17-19).

On or around January 5, 2004--about a month before he received his probation revocation sentence--Petitioner had filed another PCRA motion. (See SCR Item No. 186, Dandar, No. 662 WDA 2004, slip. op. at 2). The PCRA Court dismissed that motion as untimely on February 18, 2004. (Id.) Petitioner appealed and that appeal was docketed in the Superior Court at No. 662 WDA 2004. In its April 15, 2005, Memorandum affirming the denial of PCRA relief, the Superior Court noted that Petitioner had improperly raised claims regarding his February 6, 2004, judgment of sentence for the first time in his appeal of the denial of the January 2004 PCRA motion. (Id. at 2 n.1; see also SCR Item No. 195, Commonwealth v. Dandar, No. 888 WDA 2005, slip. op. at 2 n.2 (Pa.Super. Jan. 6, 2006)). The Superior Court held that claims challenging the February 6, 2004, judgment of sentence were not reviewable at that appeal, since Petitioner did not raise issues regarding that sentence in his January 2004 PCRA motion (nor could he have, as that judgment of sentence had not yet been issued when that PCRA motion was filed). (Id.)

In April 2005, Petitioner filed an appeal challenging the February 6, 2004, probation revocation judgment of sentence and that appeal was docketed at the Superior Court at No. 888 WDA 2005. (See SCR Item No. 195, Dandar, No. 888 WDA 2005, slip. op. at 2). Then, on December 7, 2005, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal of the PCRA proceeding at Superior Court action No. 662 WDA 2004.

Next, on or around December 27, 2005, Petitioner initiated in this Court a habeas corpus action in which he challenged his February 6, 2004, probation revocation judgment of sentence. That action was docketed as Dandar v. Good, et al., 3:05-cv-00472 (W.D. Pa.) and assigned to Judge McLaughlin, who referred the case to me. Soon thereafter, on January 6, ...


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