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Senoski v. Commonwealth of Pennsylvania

United States District Court, Third Circuit

December 18, 2013

KENNETH SENOSKI, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA, Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. RECOMMENDATION

Petitioner, Kenneth Senoski ("Senoski"), is a state prisoner. He has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court may dismiss the petition prior to service if it plainly appears that Senoski is not entitled to habeas relief. That is the case here as the petition is a second or successive and Senoski has not received from the United States Court of Appeals for the Third Circuit an order authorizing this Court to consider it, as required by 28 U.S.C. § 2244(b)(3)(A). Accordingly, it is respectfully recommended that the petition be summarily dismissed for lack of jurisdiction and that a certificate of appealability be denied. 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases In the United States District Courts.

II. REPORT

A. Relevant Background

Petitioner, Kenneth Senoski, is a state prisoner who was convicted of Aggravated Assault, Attempted Rape, and related charges in the Court of Common Pleas of Allegheny County, and who was sentenced to 12 ½ to 25 years imprisonment on November 14, 1997. Senoski's conviction was affirmed on direct appeal, and a subsequent proceeding under the Post Conviction Relief Act ("PCRA") resulted in a denial of relief.

On December 10, 2013, Petitioner filed the instant Petition for Writ of Habeas Corpus (ECF No. 1). The Petition was received without a filing fee or the forms required to proceed in forma pauperis in a habeas case. Accordingly, the case was statistically closed (ECF No. 2). On December 12, 2013, the filing fee was paid by Petitioner and the case was reopened. This is Petitioner's fourth federal Petition for Writ of Habeas Corpus in which he has challenged the same 1997 conviction.

Senoski's first petition for writ of habeas corpus in this Court was filed in 2005 ("Senoski I, " Civil Action No. 05-0041). That petition was denied on its merits on March 22, 2006 (ECF No. 14, Civil Action No. 05-41).[1] Petitioner appealed to the United States Court of Appeals for the Third Circuit, which on April 12, 2007, denied his request for a Certificate of Appealability because he "had not made a substantial showing of the denial of a constitutional right.'" See Senoski v. Narvin , Court of Appeals Docket No. 06-2011.

Senoski then filed his second petition in this Court on December 19, 2008 ("Senoski II, " Civil Action No. 08-1725). That petition was dismissed on January 20, 2009, on the grounds that it was an improper second or successive habeas petition and Petitioner had not obtained an order from the court of appeals authorizing the district court to consider the petition. (ECF No. 12, Civil Action No. 08-cv-1725).[2]

On April 9, 2009, the United States Court of Appeals for the Third Circuit denied Petitioner's application pursuant to 28 U.S.C. § 2244 to file a second or successive petition. See In re Kenneth A. Senoski, Court of Appeals Docket No. 09-1077.

Undeterred, on April 26, 2010, Petitioner filed his third petition again challenging his 1997 state court conviction and sentence ("Senoski III, " Civil Action No. 10-0524). On April 27, 2010, the Petition was summarily dismissed on the grounds that it was an improper second or successive habeas petition as Petitioner had not obtained an order from the court of appeals authorizing the district court to consider the petition. (ECF No. 2, Civil Action No. 10-0524).[3]

In his instant petition, Petitioner is challenging the very same conviction which he previously challenged in Senoski I, Senoski II, and Senoski III.

B. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") mandates that before a petitioner may file a second or successive habeas corpus petition under 28 U.S.C. § 2254 challenging the same judgment of sentence that he previously challenged in federal habeas, he must obtain an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). See, e.g., Magwood v. Patterson , 561 U.S. 320, 130 S.Ct. 2788 (2010). Once a petitioner moves for authorization to file a second or successive petition, a three-judge panel of the court of appeals must decide within thirty days whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). See 28 U.S.C. § 2244(b)(3). AEDPA's allocation of "gatekeeping" responsibilities to the courts of appeals has divested district courts of jurisdiction over habeas petitions that are second or successive filings. See, e.g., Burton v. Stewart , 549 U.S. 147 (2007).

Senoski has not received from the Third Circuit Court of Appeals permission to file a second or successive petition. Therefore, this Court must dismiss the instant petition for lack of jurisdiction. Id. at 152-54.

C. Certificate of Appealability

Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." In Slack v. McDaniel , 529 U.S. 473, 474 (2000), the Supreme Court stated that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Applying that standard here, jurists of reason would not find it debatable whether the instant petition is a second or successive petition. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be summarily dismissed and that a certificate of appealability be denied.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules, Senoski may file written objections to this Report and Recommendation on or before Tuesday, January 6, 2014. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman , 637 F.3d 187, 193 n.7 (3d Cir. 2011).

EXHIBIT A

LEAD ATTORNEY

Date Filed # Docket Text 01/13/2005 1 MOTION by KENNETH A. SENOSKI to Proceed in Forma Pauperis with Proposed Order. (jsp) Additional attachments) added on 8/16/2007 (eca, ). (Entered: 01/13/2005) 01/13/2005 PETITION for Writ of Habeas Corpus received from KENNETH A. SENOSKI. asp) (Entered: 01/13/2005) 01/13/2005 2 (Court only) **Case assigned to Category # 3 (jsp) (Entered: 01/13/2005) 01/13/2005 CASE REFERRED to Magistrate Judge Francis X. Caiazza asp) (Entered: 01/11/2005 01/13/2005) (Court only) CASE REFERRED TO Law Clerk ARR asp) (Entered: 1/13/2005 011/31/2005) 2 NOTICE AND ORDER, in re Options. (signed by Magistrate Judge Francis X. Caiazza on 1/18/05) CM all parties of record. (aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 01/19/2005) 01/28/2005 3 RESPONSE by KENNETH A. SENOSKI to [2-1] order, choosing Option 112, electing to tile an amended petition. (jsp) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 01/28/2005) 01/31/2005 4 ORDER granting [1-11 motion to Proceed in Forma Pauperis and the Clerk is directed to file the Amended Petition and the Petition for Writ of Habeas Corpus and the U.S. Marshal shall make service of this order with a copy of the Petition and the Amended Petition for Writ of Habeas Corpus upon the Respondent Warden Patrick, the District Atty. of Allegheny County and the Atty General of the Commonwealth of Pa. and Costs to be Advanced by the United States. (signed by Magistrate Judge Francis X. Caiazza on 11/31/05) CM all parties of record. (aen) Additional attachments) added on 8/16/2007 (eca, ). (Entered: 01/31/2005) 01/31/2005 5 PETITION for writ of habeas corpus. (aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 01/31/2005) 01/31/2005 6 AMENDED PETITION for writ of habeas corpus. (aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 01/3/2005) 01/31/2005 COPIES of the Above order Issued to the U.S. Marshal with Copies of the Petition and the Amended Petition for Service. (aen) (Entered: 01/31/2005) 02/17/2005 7 RETURN OF SERVICE executed as to WARDEN PATRICK 2/4/05 Answer due on 2/24/05 for WARDEN PATRICK and on District Atty. of Allegheny County on 2/4/05 and on Arty. General Commonwealth of Pa. on 2/4/05. (aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered:

02/17/2005) 02/24/2005 8 NOTICE of Attorney Appearance for RICHARD NARVIN, CAROL DOVE, JEFFERY BEARD, DAVID SCHRAGER, WARDEN PATRICK by Ronald M. Wabby Jr. (aen) Additional attachment(s) added on 8/16/2007 (eea, ). (Entered: 02/24/2005) 02/24/2005 9 MOTION by RICHARD NARVIN, CAROL DOVE, JEFFERY BEARD, DAVID SCHRAGER, WARDEN PATRICK to Extend Time to Answer with Proposed Order. (aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 02/24/2005) 02/25/2005 19 ORDER upon motion granting [9-1 motion to Extend Time to Answer, reset Answer deadline to 3/16/05 for WARDEN PATRICK, for DAVID SCHRAGER, for JEFFREY BEARD, for CAROL DOVE, for RICHARD NARVIN (signed by Magistrate Judge Francis X. Caiazza on 2/25/05) CM all parties of record. (aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 02/25/2005) 03/07/2005 10 ANSWER to Writ of Habeas Corpus by RICHARD NARVIN, CAROL DOVE, JEFFREY BEARD, DAVID SCHRAGER, WARDEN PATRICK (Vol 1)(aen) Additional attachments) added on 8/16/2007 (eca, ). (Entered: 03/07/2005) 03/07/2005 11 ANSWER to Writ of Habeas Corpus by RICHARD NARVIN, CAROL, DOVE, JEFFREY BEARD, DAVID SCHRAGER, WARDEN PATRICK (Vol 2)(aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 03/07/2005) 03/07/2005 12 ANSWER to Writ of Habeas Corpus by RICHARD NARVIN, CAROL DOVE, JEFFERY BEARD, DAVID SCHRAGER, WARDEN PATRICK (Vol 3) (aen) Additional attachment(s) added on 8/16/2007 (eca, ). (Entered: 03/07/2005) 03/24/2005 STATE COURT RECORDS received from Court of Common Pleas of Allegheny County County Case No. CC XXXXXXXXX, T-203252: 200513:200650, 201263:971098, 980280, 981157)80253. (aen) (Entered: 03/24/2005) 03/03/2006 14 REPORT AND RECOMMENDATIONS 5 Petition for Writ of Habeas Corpus, Petition for Writ of Habeas Corpus he denied. Objections to R&R due by 3/20/2006. Signed by Judge Francis X. Caiazza on 3/3/06. (jhi) (Entered: 03/03/2006) 03/22/2006 14 ORDER adopting Report and Recommendations 13. IT IS HEREBY ORDERED the that the Petition for Writ of Habeas Corpus is denied and that a certificate of appealability is denied. Case Closed. Signed by Judge Donetta W. Ambrose on 3/21/06. (jlh) (Entered: 03/22/2006) 03/22/2006 15 NOTICE OF APPEAL as to 14. Order on Report and Recommendations filed by KENNETH A. SENOSKI. Motion for IFP Granted. Court Reporter: None. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the

MAGISTRATE REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Kenneth A. Senoski be denied and that a certificate of appealability be denied.

II. REPORT

The Petitioner, Kenneth A. Senoski ("the Petitioner" or "Senoski"), a prisoner presently incarcerated at the State Correctional Institution at Houtzdale, has filed this Petition for Writ of Habeas Corpus pursuant to the provisions of 28 U.S.C. § 2254. He asserts a series of grounds for relief that the court will address seriatim.

A. The Relevant Facts

On April 22, 1995, three employees of the James Moving Company transported the personal property of Carol Dove ("Ms. Dove' or "Dove") into her new residence. The Petitioner, Kenneth Senoski, was an employee of the moving company. Sometime during the move he offered his services to Ms. Dove with respect to certain repairs that she wanted performed at her new residence. On April 28, 1996, at approximately 10:30 p.m., Senoski returned to Dove's new residence and knocked on her door. Dove, expecting a friend, opened her door and observed Senoski standing on her porch. He informed her that he was there to discuss the repair job. Because she was expecting a friend, Dove told Senoski to call her later and arrange for a specific time. Leaving him standing on her porch, Dove attempted to retrieve a business card when. Senoski charged into the house and attacked her with a knife. During a struggle that ensued, Dove knocked a dangling cigarette out of Senoski's mouth and unsuccessfully tried to burn him with the butt. Dove's screams then chased Senoski away. Following the altercation she immediately called the police who arrived and retrieved the cigarette butt that Dove forced from Senoski's mouth. As a result of the attack, Dove suffered multiple bruises and abrasions which required stitches.

In May of 1997, following a jury trial, Senoski was found guilty of the following criminal offenses: Aggravated Assault (two counts); Burglary; Criminal Attempt (Rape); Recklessly Endangering Another Person; and Criminal Mischief. On August 22, 1997, Senoski was sentenced to an aggregate term of imprisonment ranging from twenty-five to fifty years. Next, on September 2, 1997, Senoski filed a Motion for Modification or Reconsideration of Sentence. On November 14, 1997, the Motion was granted and Senoski was re-sentenced to an aggregate tern of imprisonment ranging from twelve and one-half to twenty-five years.

Senoski then filed a timely appeal of his sentence and a timely petition for relief under the Pennsylvania Post Conviction Relief Act. ("PCRA"). 42 Pa. Cons. Stat. §§ 9541-9546. In his collateral relief petition he raised ineffective assistance of counsel claims.

B. Standard of Review

Section 2254 of the federal habeas corpus statute provides the standard of review for federal court review of state court criminal determinations. 28 U.S.C. § 2254. Specifically, a federal court must accord a presumption of correctness to a state court's factual findings which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. 2254(e). Where a state court's factual findings are not made explicit, a federal court's "duty is to begin with the [state) court's legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it. Campbell v. Vaughn , 209 F.3d 280, 289; 3d Cir. 2000). In determining the implicit factual findings a state ...


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