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Messina v. Sprinkle

August 9, 2010

DONALD MESSINA, GG-0082, PETITIONER,
v.
TROOPER SPRINKLE, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Robert C. Mitchell, United States Magistrate Judge

Report and Recommendation

I. Recommendation

It is respectfully recommended that the petition of Donald Messina for a writ of habeas corpus be transferred to the United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. 1631 as a successive petition.

II. Report

Donald Messina, an inmate at the State Correctional Institution at Dallas has presented a petition for a writ of habeas corpus.

Messina is presented incarcerated serving a six to twelve year sentence imposed following his conviction by a jury of four counts of statutory sexual assault and one count of corruption of minors at No. 528 of 2004, in the criminal division of the Court of Common Pleas of Clarion County, Pennsylvania. This sentence was imposed on June 1, 2005.*fn1

The instant petition was received on August 2, 2010. However, this is not the first federal challenge that the petitioner has directed at this conviction. Messina filed a federal habeas corpus petition in this Court at 2:07-cv-946 challenging this same conviction. In the latter case, the petition was dismissed and a certificate of appealability was denied on November 28, 2007.*fn2 On May 23, 2008, a certificate of appealability was denied by the Court of Appeals at Docket No. 07-4828.

The Antiterrorism and Effective Death Penalty Act, signed into law on April 24, 1996, included several major reforms to the federal habeas corpus laws. As part of this habeas corpus reform, Congress amended 28 U.S.C. § 2244 to prohibit district courts from entertaining claims presented in a second or successive habeas corpus application unless the appropriate federal court of appeals authorizes such filing. The relevant amended language provides as follows:

(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.

28 U.S.C. § 2244(b)(3).

Because it would appear that this Court cannot consider the instant petition without leave of the Court of Appeals, it is recommended that the petition of Donald Messina for a writ of habeas corpus be transferred to the United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. 1631.

Within fourteen (14) days after being served, any party may serve and file written objections to the Report and Recommendation. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights.

Respectfully submitted,

Robert C. Mitchell, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Donald Messina an inmate at the State Correctional Institution at Dallas has presented a petition for a writ of habeas corpus. For the reasons set forth below, that petition will be dismissed and because no viable constitutional issue exists upon which a reasonable jurist could conclude that there is a basis for appeal, a certificate of appealability will be denied.*fn3

Messina is presently incarcerated serving a six to twelve year sentence imposed following his conviction by a jury of four counts of statutory sexual assault and one count of corruption of minors at No. 528 of 2004, in the criminal division of the Court of Common Pleas of ...


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