The opinion of the court was delivered by: Judge Cathy Bissoon
On January 13, 2012, Petitioner John C. Lesko filed with this Court a petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("the 2012 Petition"). (Doc. 12). He raises 22 claims for relief. In Claims I, II, III, IV, and XXII, he challenges his 1981 convictions of first-degree murder and criminal conspiracy. In his remaining claims, he challenges the sentence of death he received following his 1995 resentencing hearing. Because Lesko already has litigated one federal habeas petition in which he challenged his 1981 convictions, the Court directed the parties to submit briefs on whether the 2012 Petition, or at least that portion of it in which he is seeking relief from his convictions, is "a second or successive habeas corpus application under section 2254" and thus subject to the provisions of 28 U.S.C. § 2244(b). If it is, Lesko must receive an order from the Court of Appeals for the Third Circuit authorizing this Court to consider it. 28 U.S.C. § 2244(b)(3)(A)-(D). If it is not, then § 2244(b) does not apply and this Court may proceed forward with this case.
Lesko asserts that the 2012 Petition is not "a second or successive habeas corpus application." (Doc. 21). Respondents take the contrary position. (Docs. 21, 23). For the reasons stated here, the Court agrees with Lesko.
In January of 1981, Lesko and his co-defendant, Michael Travaglia, were tried before a jury in the Court of Common Pleas of Westmoreland County for the murder of Apollo Police Officer Leonard C. Miller. The jury found both defendants guilty of first-degree murder and criminal conspiracy. Because the Commonwealth was seeking the death penalty against Lesko and Travaglia, their trial was immediately followed by a hearing before the same jury to determine the sentence to be imposed. The jury decided that each defendant should be sentenced to death for the murder of Officer Miller.
On April 23, 1982, after it had denied Lesko's post-trial motions, the Court of Common Pleas imposed the sentence fixed by the jury by issuing the following Order of Court:
AND NOW, to wit, this 23rd day of April 1982, the sentence of the laws of the Commonwealth of Pennsylvania and of this Court is that you, John Charles Lesko, be taken by the Sheriff of Westmoreland County to that state prison from whence you came, and from thence, in due course, to the State Correctional Institution at Rockview, situate[d] in Centre County, Pennsylvania, and that you there suffer death during the week fixed by the Governor of the Commonwealth of Pennsylvania, in a building erected for that purpose, and upon land owned by the Commonwealth in Centre County. (CP Doc. 97).*fn1
In 1983, the Pennsylvania Supreme Court affirmed Lesko's and Travaglia's sentences of death. Commonwealth v. Travaglia, 467 A.2d 288 (Pa. 1983) (consolidated direct appeal), cert. denied, 467 U.S. 1256 (1984). Two years later, the Pennsylvania Supreme Court affirmed the Common Pleas Court's decision to deny Lesko's motion for collateral relief, which he had filed pursuant to Pennsylvania's Post Conviction Hearing Act, 42 Pa.C.S. § 1985 (the predecessor to Pennsylvania's Post Conviction Relief Act ("PCRA")). Commonwealth v. Lesko, 501 A.2d 200 (1985), cert. denied, 479 U.S. 1101 (1987).
In 1986, Lesko filed with this Court his first petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254 (the "1986 Petition"). He raised claims challenging both the guilt phase and the sentencing phase of his 1981 trial, and contended that he was entitled to a new trial altogether or, at a minimum, a new sentencing hearing.*fn2
In April of 1990, this Court denied Lesko's claims for relief. Lesko v. Owens, No. 86-cv-1238, slip op. (W.D. Pa. Apr. 12, 1990). See also Lesko v. Jeffes, 689 F.Supp. 508 (W.D. Pa. 1988) (initially granting writ), rev'd, Lesko v. Owens, 881 F.2d 44 (3d Cir. 1989), cert. denied, 493 U.S. 1036 (1990). In February of 1991, the Court of Appeals for the Third Circuit issued a decision in which it affirmed this Court's decision "to the extent that it sustains the determination of [Lesko's] guilt." Lesko v. Lehman, 925 F.2d 1527, 1555 (3d Cir. 1991). It reversed the decision to deny Lesko sentencing-phase relief because it determined that his constitutional rights had been violated when the prosecutor made improper comments during the closing statement he gave at the sentencing hearing. Accordingly, the Third Circuit concluded, Lesko was entitled to the writ unless the state court held a new sentencing hearing within a reasonable period of time set by this Court. It remanded the case with the additional instruction that, before this Court issue the writ, it must conduct an evidentiary hearing on the issue of whether the guilty plea that Lesko had entered in a criminal case out of Indiana County was voluntary. If this Court found that it was not, the Third Circuit instructed, the writ was to issue to the extent that Lesko sought relief from the sentencing phase of his 1981 trial "subject to the additional requirement that evidence of the guilty plea not be introduced at the resentencing proceeding." Id. at 1555.
Upon remand, the magistrate judge to whom the case was referred presided over the evidentiary hearing. He determined that the guilty plea that Lesko had entered in the Indiana County case was involuntary and, therefore, could not be used in the subsequent resentencing hearing. The magistrate judge's report and recommendation was adopted as the opinion of this Court on February 20, 1992. Lesko v. Lehman, No. 86-cv-1238, 1992 WL 717815 (W.D. Pa. Feb. 20, 1992). In accordance with the Third Circuit's directive, this Court issued what is known as a "conditional writ,"*fn3 instructing that "a writ of habeas corpus is GRANTED, and that [Lesko] is discharged from custody," unless within a certain amount of time the Common Pleas Court "holds a resentencing hearing at which evidence of the petitioner's Indiana County guilty plea is excluded." Id. at *1.
In February of 1995, the Common Pleas Court presided over a second sentencing hearing. On February 17th, the jury returned a verdict of death. At the conclusion of the hearing, the court issued the following Order of Court: "AND NOW, this 17th day of February, 1995, in accordance with the verdict of the jury and the finding of this jury, IT IS THE SENTENCE of this Court that you suffer the penalty of death." (CP Doc. 206; see also 2/17/95 Sentencing Hr'g Tr. at 50). The Pennsylvania Supreme Court affirmed Lesko's sentence on direct review on May 21, 1998. Commonwealth v. Lesko, 719 A.2d 217 (Pa. 1998), cert. denied, 525 U.S. 1108 (1999).
Next, Lesko filed a motion for collateral relief under the PCRA. In that proceeding, he challenged both his 1981 convictions and his 1995 sentence of death. On August 7, 2006, the PCRA court issued a decision in which it granted Lesko relief on guilt-phase and sentencing-phase claims and directed that he be completely retried for his role in the 1980 murder of Officer Miller. Commonwealth v. Lesko, No. 681 C 1980, slip op. (C.P. Westmoreland Aug. 7, 2006).
On February 24, 2011, the Pennsylvania Supreme Court reversed the PCRA court's decision to grant Lesko relief. Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011). Several months later, Lesko commenced habeas proceedings in this Court by filing, inter alia, a motion for appointment of counsel, which was granted. On January 13, 2012, Lesko filed the 2012 Petition. This Court then directed the parties to submit a brief addressing whether it is subject to the ...