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Joseph P. Sero v. Court of Common Pleas

May 25, 2011

JOSEPH P. SERO,
PETITIONER
v.
COURT OF COMMON PLEAS, RESPONDENT



The opinion of the court was delivered by: (Judge Rambo)

MEMORANDUM

Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by Petitioner Joseph P. Sero, an inmate presently confined at the State Correctional Institution at Fayette in LaBelle, Pennsylvania ("SCI-Fayette"). (Doc. 1.) Named as Respondent is the Court of Common Pleas of Dauphin County, Pennsylvania, and Pennsylvania's Attorney General.*fn1 In his petition, Petitioner challenges his 1976 state sentence in the Dauphin County court. For the reasons that follow, the petition will be dismissed as a successive petition under 28 U.S.C. § 2244(b).

I. Background

The instant petition stems from Petitioner's 1976 state sentence on his 1975 conviction for one count of murder of the first degree, see 18 PA. CONS. STAT.

§ 2502(a). Specifically, on September 3, 1976, following the denial of post-verdict motions, Sero was sentenced to a term of life imprisonment. The procedural history of this case is extensive. As such, the court will recite only the procedural history relevant to the instant petition.*fn2

In June, 1978, following the exhaustion of his direct appeal, Sero filed a pro se petition for relief under the since-repealed Post-Conviction Hearing Act ("PCHA"). See Sero v. Warden, Civ. No. 07-1530 (M.D. Pa. July 17, 2008). On July 18, 1978, Sero, represented by counsel, filed a supplemental petition for relief under the PCHA. (Id.) By order dated July 28, 1978, the trial court judge denied PCHA relief for the reasons stated in the Commonwealth's answer to the PCHA petition. (Id.) On July 5, 1979, the Pennsylvania Supreme Court affirmed the trial court's order denying PCHA relief. (Id.)

On July 30, 1979, Sero filed a petition for writ of habeas corpus ("first petition") with this court pursuant to the provisions of 28 U.S.C. §2254, which was docketed at Civil No. 79-971. (Id.) On January 31, 1980, following review of Sero's petition, the Honorable Joseph G. Quinn, United States Magistrate Judge, issued a Report of Magistrate recommending dismissal of the first petition. (Id.) On February 29, 1980, the Honorable Richard P. Conaboy adopted the Report and dismissed the first petition. (Id.)

On February 17, 1988, Sero filed a second petition for writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254 ("second petition") which was docketed at Civil No. 88-0248. (Id.) On April 21, 1988, the second petition was dismissed by Judge Conaboy on the basis that it was a second or successive petition pursuant to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977). (Id.) By order dated November 30, 1988, the United States Court of Appeals denied a petition for certificate of probable cause. (Id.) On January 11, 1989, the Third Circuit Court of Appeals denied a petition for rehearing en banc. (Id.)

On November 6, 1995, Sero filed a petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. ("first PCRA petition"). (Id.) On December 5, 1996, the PCRA court denied the first PCRA petition. (Id.) Sero appealed to the Pennsylvania Superior Court, and on October 21, 1988, the PCRA court's order was affirmed. (Id.) On March 29, 1999, the Pennsylvania Supreme Court denied Sero's petition for allowance of appeal. (Id.)

On January 25, 2006, Sero filed a second petition for relief under the PCRA ("second PCRA petition"). (Id.) On July 7, 2006, the PCRA court dismissed the second PCRA petition as untimely. (Id.) Sero appealed to the Pennsylvania Superior Court, and on March 26, 2007, the Superior Court affirmed the order of the PCRA court. (Id.) On July 30, 2007, the Pennsylvania Supreme Court denied Sero's petition for allowance of appeal. (Id.)

On August 20, 2007, Sero filed a third petition for writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254 ("third petition") which was docketed at Civil No. 07-1530. On July 17, 2008, the third petition was dismissed by this court on the basis that it was untimely. (Id.) By order dated May 21, 2009, the Third Circuit Court of Appeals dismissed Sero's appeal. (Id.)

Sero filed the instant petition for writ of habeas corpus on May 3, 2011. (Doc. 1.) In the petition, Sero claims that the sentencing court did not have jurisdiction to sentence him to a term of life imprisonment. He further claims that counsel was ineffective for failing to object to the imposition of his life sentence.

II. Discussion

Habeas corpus petitions brought under § 2254 are subject to summary dismissal pursuant to Rule 4 ("Preliminary Review; Serving the Petition and Order") of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977). A court must summarily dismiss a petition, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . ." Rules Governing Section 2254 Cases, Rule 4; 28 U.S.C. § 2243; Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979); Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970). A petition may be dismissed without review of an answer ...


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