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Jerry Lee Johnson v. Tabb Bickell

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


March 5, 2012

JERRY LEE JOHNSON
PETITIONER,
v.
TABB BICKELL, ET AL. RESPONDENTS.

The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge

REPORT AND RECOMMENDATION LYNNE A. SITARSKI DATE: March 5, 2012 UNITED STATES MAGISTRATE JUDGE

Pending before this Court is a pro se petition for writ of habeas corpus, filed pursuant to 28 U.S.C. §2254, by Jerry Lee Johnson ("Petitioner"), an individual currently incarcerated in State Correctional Institute Huntingdon, located in Huntingdon, Pennsylvania. For the following reasons, this Court respectfully recommends that the petition for habeas corpus be transferred to the Third Circuit Court of Appeals, without a hearing.

I. FACTS AND PROCEDURAL HISTORY *fn1

This case involves the death of Francis Nelson, Sr., who was last seen alive on May 1, 1984. See Johnson v. Love, No. 92-2001, slip op. at 1 (E.D. Pa. Apr. 28, 1994). On May 16, 1984, the victim's body was found in the Schuykill River. Id. The cause of death was multiple wounds to the head, throat, and chest. Id. Petitioner was subsequently arrested and charged with the crime.

A. State Court Proceedings

On May 9, 1986, following a jury trial presided over by the Honorable John Geisz of the Court of Common Pleas of Philadelphia, Petitioner was convicted of murder in the second degree and possessing an instrument of crime. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985, at 1 (Pa. Ct. Com. Pl. Dec. 5, 2011). On January 11, 1988, the trial court sentenced Petitioner to life imprisonment on the murder conviction and to a concurrent term of two and one-half to five years imprisonment for the weapons offense. See Johnson v. Love, No. 92-2001, slip op. at 1 (E.D. Pa. July 9, 1993). After conducting oral argument, Judge Geisz denied Petitioner's post-trial motions on February 8, 1988. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985, at 2 (Pa. Ct. Com. Pl. Feb. 22, 1989).

Petitioner filed a direct appeal. See Johnson v. Love, No. 92-2001, slip op. at 1-2 (E.D. Pa. July 9, 1993). The trial court filed an opinion on February 22, 1989, denying relief. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985 (Pa. Ct. Com. Pl. Feb. 22, 1989). The Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence on August 18, 1989. See Johnson v. Love, No. 92-2001, slip op. at 2 (E.D. Pa. July 9, 1993) (citing Commonwealth v. Johnson, 565 A.2d 819 (Pa. Super. Ct. 1989)). Petitioner did not petition for allowance of appeal in the Supreme Court of Pennsylvania. Id.

On May 22, 1990, Petitioner filed his first PCRA petition. Id. The PCRA court appointed counsel, who filed an amended PCRA petition. See Johnson v. Love, No. 92-2001, slip op. at 3 (E.D. Pa. Apr. 28, 1994). The PCRA court held three separate evidentiary hearings on May 10, 1993, November 17, 1993, and January 25, 1994. See Commonwealth v. Johnson, No. 1510 Phila. 1994, at 3 (Pa. Super. Ct. Apr. 26, 1995). The PCRA court denied relief on April 20, 1994. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985 (Pa. Ct. Com. Pl. Apr. 20, 1994). On appeal, the Superior Court of Pennsylvania affirmed. See Commonwealth v. Johnson, No. 1510 Phila. 1994 (Pa. Super. Ct. Apr. 26, 1995). Petitioner filed a petition for allowance of appeal; the Supreme Court of Pennsylvania denied allocatur on October 6, 1995. See Commonwealth v. Johnson, 666 A.2d 1052 (table) (Pa. 1995).

Petitioner has since filed multiple pro se PCRA petitions that have been dismissed as untimely. See Commonwealth v. Johnson, No. CP-51-CR-0401971-1985, at 2 (Pa. Ct. Com. Pl. Dec. 5, 2011). For example, on December 5, 2011, the PCRA court dismissed Petitioner's most recent pro se PCRA petition as untimely. See id. Petitioner filed a Notice of Appeal with the Superior Court on December 23, 2011. See Pennsylvania Docket, No. CP-51-CR-0401971-1985 (Pa. Ct. Com. Pl. Dec. 23, 2011). This appeal remains pending.

B. Federal Court Proceedings

Petitioner filed his first pro se habeaspetition on December 14, 1988, alleging "various trial errors and also argu[ing] that he has been denied the right to appeal because of judicial delay." See Johnson v. Love, No. 88-9514, slip op. at 2 (E.D. Pa. Feb. 27, 1989); see also Johnson v. Love, No. 92-2001, slip op. at 2 (E.D. Pa. Apr. 28, 1994); Johnson v. Love, No. 92-2001, slip. op. at 2 (E.D. Pa. July 9, 1993). The Honorable Peter B. Scuderi filed a Report and Recommendation on February 27, 1989, recommending that the petition be dismissed for failure to exhaust state remedies, as Petitioner's direct appeal remained pending. See Johnson v. Love, No. 88-9514, slip op. at 2-4 (E.D. Pa. Feb. 27, 1989). On March 16, 1989, the Honorable Edmund V. Ludwig approved and adopted the Report and Recommendation, and dismissed the petition. See Order, Johnson v. Love, No. 88-9514 (E.D. Pa. Mar. 16, 1989).

On October 26, 1990, Petitioner filed his second pro se habeas petition, alleging that "he has suffered, inter alia,an inordinate delay in the state court process." See Johnson v. Love, No. 90-6865, slip op. at 2 (E.D. Pa. Nov. 14, 1990). Petitioner also alleged "prosecutorial misconduct, insufficient evidence, trial court error in the jury instructions and other trial court error." Id. at 2 n.3. Judge Scuderi filed a Report and Recommendation on November 14, 1990, recommending that the petition be dismissed for failure to exhaust state remedies. Id. at 3. On December 5, 1990, Judge Ludwig adopted and approved the Report and Recommendation, and dismissed the petition. See Order, Johnson v. Love, No. 90-6865 (E.D. Pa. Dec. 5, 1990). Petitioner requested a certificate of probable causefrom the Third Circuit, which was subsequently denied.*fn2 See Order, Johnson v. Love, No. 90-1993 (3d Cir. May 31, 1991).

On April 6, 1992, Petitioner filed his third pro se habeas petition, asserting that "the ineffective assistance of court-appointed PCRA counsel caused an inordinate delay in the PCRA action, thereby denying him due process." Johnson v. Love, No. 92-2001, slip op. at 3 (E.D. Pa. July 9, 1993). Judge Scuderi filed a Report and Recommendation on June 18, 1992, recommending dismissal because Petitioner's claim was non-cognizable. Johnson v. Love, No. 92-2001, slip op. at 3-4 (E.D. Pa. June 18, 1992). On July 20, 1992, Judge Ludwig approved and adopted the Report and Recommendation. See Order, Johnson v. Love, No. 92-2001 (E.D. Pa. July 20, 1992). Petitioner appealed to the Third Circuit. On February 23, 1993, the Third Circuit summarily reversed the district court's judgment and remanded the matter "with instructions to the district court to make a determination of whether petitioner should be permitted to amend his habeas corpus petition to include claims raised in prior habeas corpus petitions and claims of inordinate delay which could justify any failure to exhaust state remedies." See J. Order, Johnson v. Love, No. 92-1676 (3d Cir. Feb. 23, 1993).

Petitioner filed a motion for appointment of counsel, which Judge Ludwig granted on March 19, 1993. See Order, Johnson v. Love, No. 92-2001 (E.D. Pa. Mar. 19, 1993). Petitioner's counsel filed a proposed amendment to the habeas petition, raising the following issues:

(1) Ineffective assistance of appellate counsel for failing to adequately litigate in post-trial motions and/or to preserve for appellate review:

(a) Trial counsel's ineffectiveness for failure to perform adequate pre-trial investigation and to call certain defense witnesses at trial;

(b) Erroneous admission into evidence of [P]petitioner's statements to law enforcement officials obtained in violation of Fifth and Fourteenth Amendments;

(c) Denial of right to speedy trial; [and]

(d) Prosecutorial vindictiveness and misconduct in requesting death-qualified jury;

(2) Ineffective assistance of appellate counsel in failing to timely notify [P]petitioner of status of appeal in Superior Court, preventing [P]petitioner's appeal to Supreme Court;

(3) Ineffective assistance of trial counsel for failing to investigate possible defenses and call certain defense witnesses.

Johnson v. Love, No. 92-2001, slip op. at 9-10 (E.D. Pa. July 9, 1993). In a Memorandum and Order filed on July 9, 1993, Judge Ludwig excused the exhaustion requirement only with respect to those claims pending before the state court because only those claims were being inordinately delayed (i.e., claims 1(a), 2, and 3). Id. at 10. Because the amended petition (as filed) contained both exhausted and unexhausted claims, Judge Ludwig gave Petitioner the option to: (1) proceed with only the exhausted claims; or (2) have the amended petition dismissed as a mixed petition.*fn3

Id. at 11.

On August 9, 1993, Petitioner's counsel filed a second amended habeas petition, raising the following claims:

(1) Ineffective assistance of appellate counsel for failing to adequately litigate in post-trial motion and/or preserve for appellate review the issue of trial counsel's ineffectiveness for failing to perform adequate pretrial investigation and call certain defense witnesses at trial;

(2) Ineffective assistance of appellate counsel for failing to timely notify [P]petitioner that his appeal in the Superior Court had been denied;

(3) Ineffective assistance of trial counsel for failing to investigate possible defenses and call certain defense witnesses, specifically:

(a) Trial counsel failed to call Antoinette Lawrie, who would have provided alibi testimony and led to another witness, her husband;

(b) Trial counsel failed to find and use evidence that the Commonwealth offered to assist a witness in his effort to enter the Police Academy;

(c) Trial counsel failed to interview Johnny Johnson, who would have led to evidence that a witness had misgivings about implicating [P]petitioner;

(d) Trial counsel failed to interview Jacqueline Banks, who would have given testimony raising doubts about a key Commonwealth witness's credibility;

(e) Trial counsel's failure to interview Jacqueline Banks resulted in a failure to discover [tattoo] parlor records which would have caused a question about a key Commonwealth witness's credibility;

(f) Trial counsel failed to interview Pia Johnson, who would have given testimony contrary to a key Commonwealth witness regarding

[P]petitioner's relationship with the witness;

(g) Trial counsel failed to interview Peggy Glover, who would have given testimony that contradicted a key Commonwealth witness; [and]

(h) Trial counsel failed to investigate and present evidence that [P]petitioner bought a car for a key Commonwealth witness. Such evidence was contrary to testimony and would have served as valuable impeachment evidence.

Johnson v. Love, No. 92-2001, slip op. at 5-6 (E.D. Pa. Apr. 28, 1994). Judge Scuderi filed a Report and Recommendation on April 28, 1994, recommending that the petition be denied because the claims were procedurally defaulted and/or without merit. See id. at 8-17. On July 5, 1994, Judge Ludwig approved and adopted the Report and Recommendation. See Order, Johnson v. Love, No. 92-2001 (E.D. Pa. July 5, 1994). On appeal to the Third Circuit, Petitioner argued, inter alia, that "the district court erred in refusing to hold a new evidentiary hearing concerning the claims raised in his habeas petition." See Johnson v. Love, No. 94-1770, slip op. at 3 (3d Cir. Apr. 13, 1995). The Third Circuit affirmed on April 13, 1995. Id. at 10-11.

On September 7, 1997, Petitioner filed another pro se habeas petition, asserting the following claims:

(1) The PCRA court has caused an eleven year inordinate delay and violation of due process by failing to conduct an evidentiary hearing where trial counsel would testify to his handling of Petitioner's case.

(2) Ineffective assistance of direct appeal counsel by abandoning Petitioner before appealing to the Supreme Court.

(3) The trial court erred by giving incomplete/incorrect jury instructions concerning the charge of kidnaping.

(4) The trial court erred by giving incomplete/incorrect jury instruction concerning the charge of second degree murder.

See Pet'r's Hab. Pet. at 7-10, Johnson v. Love, No. 97-5902 (E.D. Pa. Sept. 19, 1997). On February 5, 1998, Judge Ludwig sua sponte determined that the habeas petition was a second or successive petition, filed by Petitioner without requisite authorization from the Third Circuit. See Order, Johnson v. Love, No. 97-5902 (E.D. Pa. Feb. 5, 1998). Accordingly, Judge Ludwig ordered "that claim one of the instant case is dismissed with prejudice, and the remaining three claims are submitted to the United States Court of Appeals for the Third Circuit for consideration." Id. On April 2, 1998, the Third Circuit denied Petitioner's application for authorization to file a second or successive petition. See Order, In re: Jerry L. Johnson, Sr., No. 98-8021 (3d Cir. Apr. 2, 1998).

On February 27, 2001, Petitioner filed a pro se Motion for Allowance of Second/Successive Petition in the Third Circuit. See Pet'r's Mot. for Allowance of Second/Successive Pet. at 12, In re: Jerry L. Johnson, Sr., No. 01-1528 (3d Cir. Feb. 27, 2001). Petitioner attached a habeas petition to the motion which asserted the same claims as the habeas petition filed on September 7, 1997. The Third Circuit denied Petitioner's application on August 7, 2001. See Order, In re: Jerry L. Johnson, Sr., No. 01-1528 (3d Cir. Aug. 7, 2001).

On July 8, 2012, Petitioner filed the instant pro se habeas petition, asserting the following claim:

(1) Petitioner is being confined beyond the maximum sentence permitted by the statute, which expired March 19, 2005. Also, there has been inexcusable and inordinate delay that has rendered the state remedy unavailable.

(Doc. No. 1). On August 8, 2011, this Court received copies of Petitioner's exhibits, which were sent by Petitioner's daughter (Ms. Jacqueline E. Patman). (Doc. No. 7). On September 1, 2011, Respondents filed an Answer, asserting that the instant petition constitutes a second or successive petition and should be transferred to the Third Circuit.*fn4 (Doc. No. 4). On September 11, 2011, Petitioner filed a Reply. (Doc. No. 5). On October 11, 2011, Petitioner sent a letter to this Court requesting a copy of the entire state court records.*fn5 (Doc. No. 6).

II. DISCUSSION

The AEDPA "established a stringent set of procedures that a prisoner 'in custody pursuant to a judgment of a State court'" must follow if he wishes to file a second or successive habeas petition.*fn6 Burton v. Stewart, 549 U.S. 147, 152 (2007). The federal courts of appeals act as the "'gate-keeper,'" which charges them "with the responsibility of 'preventing the repeated filing of habeas petitions that attack the prisoner's underlying conviction.'"*fn7 Blystone v. Horn, 664 F.3d 397, 411 (3d Cir. 2011) (quoting Leal Garcia v. Quarterman, 573 F.3d 214, 220 (5th Cir. 2009)). As such, "before filing the application in the district court, a prisoner 'shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.'" Burton, 549 U.S. at 152-53 (quoting 28 U.S.C. § 2244(b)(3)(A)). "A petitioner's failure to seek such authorization from the appropriate appellate court before filing a second or successive habeas petition 'acts as a jurisdictional bar.'" Blystone, 664 F.3d at 412 (quoting United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)); see also Burton, 549 U.S. at 153 (stating that when a petitioner does not receive the required authorization before filing a second or successive petition, the district court is "without jurisdiction to entertain it"). If such an unauthorized second or successive petition is filed, "the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631." Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002).

Here, the instant petition constitutes a second or successive petition because Petitioner is challenging his state court judgment that was already the subject of a prior habeas adjudication. See Magwood, 130 S. Ct. at 2796-97. However, Petitioner has not obtained the requisite authorization from the Third Circuit. See Burton, 549 U.S. at 152-53 (quoting 28 U.S.C. § 2244(b)(3)(A)). This Court thus lacks jurisdiction to entertain the instant petition.*fn8 See Burton, 549 U.S. at 153; see also Blystone, 664 F.3d at 412. Therefore, in the interests of justice, this Court recommends transferring the instant petition to the Third Circuit pursuant to 28 U.S.C. § 1631. See Robinson, 313 F.3d at 139.

III. CONCLUSION

For the forgoing reasons, this Court respectfully recommends that the instant habeas petition be transferred to the United States Court of Appeals for the Third Circuit, because Petitioner has not obtained the requisite authorization to file this second or successive petition.

Therefore, I make the following:

R E C O M M E N D A T I O N

AND NOW, this 5th day of March, 2012, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be TRANSFERRED to the Court of Appeals for the Third Circuit.

Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.

BY THE COURT:

Lynne A. Sitarski


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