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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 court made in reaching a conclusion, a federal court must infer that the state court applied federal law correctly. Id . (citing Marshall v. Lonberger , 459 U.S. 422, 433 (1982)).

Next, a federal court may not issue the writ unless it concludes that the state court's adjudication resulted in a decision that was "contrary to, " or an "unreasonable application of, " clearly established federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d) (1). The Supreme Court has determined that a federal habeas court making the unreasonable application inquiry should determine whether the state court's application of clearly established federal law was objectively unreasonable. Williams v. Taylor , 529 U.S. 362, 408 (2000). "Under § 2254(d)(1)'s unreasonable application clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." at 411. See also Lockver v. Andrade , 538 U.S. 63 (2003). These standards apply equally to mixed questions of fact and law, such as whether trial counsel provided effective assistance. Werts v. Vaughn 228 F.3d 178 , 204 (3d Cir. 2000), cert. denied, 532 U.S. 980 (2001). Finally, where the state court fails to adjudicate or address the merits of a petitioner's claims, the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact. / Mope]. v. Horn , 250 F.3d 203, 210 (3d Cir. 2001).

C. Ineffective Assistance of Counsel

Senoski's argument is based on ineffective assistance of counsel claims. The Supreme Court has formulated a two-part test for determining if counsel rendered constitutionally ineffective assistance: 1) whether counsel's performance was unreasonable; and 2) whether counsel's unreasonable performance actually prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984)). To determine whether counsel performed below the level expected from a reasonably competent attorney, a court must judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Id. at 690. A petitioner who claims that he or she was denied effective assistance of counsel carries the burden of proof. United states v. Cronic 466 U.S. 648 , 658 (1984).

The first prong of the Strickland test requires a defendant to establish that an attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland 466 U.S. at 688. That said, a court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689. The question is not whether the defense was free from errors of judgement, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id.

The second prong of the test requires a defendant to demonstrate that counsel's errors deprived him or her of a fair trial and the result was unfair or unreliable. Strickland , 466 U.S. at 689. To prove prejudice, a defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland , 466 U.S. at 694 (emphasis added). A "reasonable probability" is one that is sufficient to undermine confidence in the outcome. Id . Having reviewed the relevant law, the Petitioner's claims will be reviewed under the preceding analysis.

a) Scientific Testing of the Cigarette Butt

Senoski first claims that his trial counsel was ineffective because he: 1) failed to challenge whether the DNA testing method performed on the saliva of the cigarette butt was generally accepted in the scientific community at the time of trial; 2) failed to challenge the statistical evidence calculated from the DNA testing results; and 3) failed to challenge the relevancy and materiality of the cigarette butt.

Addressing the first issue, the Commonwealth used the Polymerase Chain Reaction ("PCRa) method of DNA to determine whether the Defendant was among one in 8000 people to have the same saliva as that found on the cigarette butt. In determining the admissibility of this evidence, the Pennsylvania courts used the test set out in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923)(in order for scientific evidence to be admissible, the theory and technique underlying the evidence must have gained general acceptance in the scientific community). As recognized in the trial court's PCRA opinion, at both the pretrial hearing and during trial, evidence was presented showing that PCR testing had gained general acceptance in the scientific community (Commw. Ex. 38 at 2-3). Senoski has not included any evidence in this record to rebut this finding. Parenthetically, the Petitioner has not shown that he was prejudiced by the introduction of the DNA evidence. Ms. Dove identified her attacker as Senoski; therefore, the saliva evidence was cumulative at best. Finally, there is no basis in this record to conclude that the jurors' verdict rested solely on the basis of the scientific evidence. Senoski presented an alibi defense but the jury did not believe his story. Instead, the fact-finder accepted the testimony of Ms. Dove. Thus, defense counsel did not render ineffective assistance by failing to question the scientific acceptance of PCR testing.

Senoski next argues that trial counsel was ineffective because he failed to challenge the statistical evidence revealed by the DNA testing results. This claim is belied by the record which shows that defense counsel thoroughly cross-examined the forensic expert during trial. Moreover, as already stated, Senoski has not shown how he was prejudiced in light of the victim's independent identification of Senoski as her attacker. Again, Senoski has not shown that he is entitled to federal habeas corpus relief with respect to this claim.

Finally, Senoski claims that defense counsel was ineffective because he failed to challenge the relevancy and materiality of the cigarette because it did not have any of the victim's blood on it. Specifically, Senoski claims that Dove testified that her hands were cut by Senoski's knife and that she was bleeding profusely before she grabbed the butt out of Senoski's mouth. He contends that the cigarette butt found by the police could have been tracked into Dove's house during the move.

The trial court held that the cigarette was admissible because Dove testified that she knocked a butt from her attacker's mouth and it was the only one recovered from her residence. More importantly, the trial court ruled that defense counsel was not ineffective because Senoski failed to show that there was a reasonable likelihood that the verdict would have been different had defense counsel challenged the witnesses with respect to the lack of Dove's blood on the cigarette. In this court, the Petitioner has failed to show that the Pennsylvania Courts' determination of this claim is contrary to, or an unreasonable application of, constitutional law as set out by the United States Supreme Court. Accordingly, this issue likewise lacks merit.

b) Admission of the Petitioner's Bloody Shirt

Next, Senoski argues that appellate counsel was ineffective because he failed to raise the issue that trial counsel was ineffective because he entered Senoski's shirt into evidence. Significantly, the shirt was smeared with only Senoski's blood. In reviewing this claim, the trial court found that defense counsel had a reasonable trial strategy for placing the shirt into evidence because it contained only Senoski's blood and the evidence adduced at trial showed that the victim, Ms. Dove, was bleeding profusely. Thus, the evidence tended to support Senoski's defense; i.e., that he was not the attacker. Consequently, the trial court found that counsel did not provide ineffective assistance. Again, Senoski has not shown that this determination is contrary to, or an unreasonable application of, clearly established federal or constitutional law.

c) Alibi Witnesses

Next, Senoski claims that his trial counsel was ineffective for failing to present his alibi defense. Specifically, he argues that counsel was ineffective because he failed to question witnesses regarding his Friday night routine. Again, this claim is belied by the record. During trial, defense counsel called John Cherrington who testified that it was Senoski's routine to visit the Pleasant Bar in Pleasant Hills on Friday nights and stay from 7:30 p.m. until 10:30 p.m. (Trial Tr. at 233-235). Senoski's mother, Pauline Bartinkas, testified that her son returned home at 10:45 or 10:40 p.m. on April 28, 1995. She explained that because she had purchased a new car, Senoski was required to return her keys in her purse before she went to bed. She testified that the Petitioner returned home, took the dog out and played with him, washed and then viewed the 11:00 news with her. She further stated that he came home around 11:00 because that was his routine. (Trial Tr. at 254-263). This claim lacks merit.

d) Back Injuries and Rack Brace

Next, Senoski claims that his trial counsel rendered ineffective assistance by failing to present evidence related to injuries that he sustained in a 1980 automobile accident. As a result of the crash Senoski supposedly was required to continually wear a back brace. Apparently, Senoski is arguing that because he wore a back brace, he could not have physically attacked Ms. Dove. Again, this argument lacks merit.

First, the trial court concluded that because Senoski had not demonstrated that his condition precluded the events as described by the victim, he had not demonstrated any reasonable probability that the outcome of the trial would have been different. Second, and more significantly, the court concluded that trial counsel's strategy in failing to argue his condition was readily apparent because Senoski worked as a laborer in a moving company a physically demanding job. To argue that he was physically incapable of attacking Ms. Dove would have raised significant credibility issues.

With those facts as a backdrop, Senoski has failed to show that the stare court's determinations are contrary to, or an unreasonable application of, clearly established federal or constitutional law as determined by the United States Supreme Court. Consequently, he has not demonstrated that he is entitled to federal habeas corpus relief with respect to this claim.

D. Illegal Sentence

Senoski next claims that his sentence is illegal because the sentencing court failed to merge the sentence for aggravated assault into the sentence for attempted rape. The Petitioner's merger claim invokes the protections of the Double Jeopardy Clause of the Fifth Amendment.

The Fifth Amendment to the Constitution provides in relevant Dart as follows: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V.[1] The guarantee against double jeopardy consists of three separate constitutional rights: 1) it protects against a second prosecution for the same offense after acquittal; 2) it protects against a second prosecution for the same offense after conviction; and 3) it protects against multiple punishments for the same offense. Gillespie v. Ryan , 837 F.2d 628, 632 (3d Cir.) (citing North Carolina v. Pearce , 395 U.S. 711, 717 (1969)), cert. denied, 488 U.S. 833 (3d Cir. 1988).

The Double Jeopardy Clause prohibits more than one punishment for the same offense. The Supreme Court described the perimeters of the Double Jeopardy Clause in Blockburger v. United States , 284 U.S. 299 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger 284 U.S. at 304. In Missouri v. Hunter 459 U.S. 359 , 366 (1983), the Supreme Court defined further the perimeters of the Double Jeopardy Clause by finding that it does no more than prevent the sentencing court from prescribing a greater punishment than the legislature intended. Where a legislature specifically authorizes a cumulative punishment under two statutes, the trial court may impose a cumulative punishment in a single trial. Id.[2]

That said, a multiple punishment analysis under the Double Jeopardy Clause requires a court to review the substantive criminal law. Gillespie 837 F.2d at 628. Also, a state court's interpretation of a state criminal statute is binding on a federal court reviewing the merits of a habeas corpus petition. Id. at 632 ("Absent extraordinary circumstances, the state courts will have the final word on the substantive criminal law.")."

Here, Senoski claims that his sentence is illegal because the sentencing court failed to merge the sentence for aggravated assault, 18 Pa. Cons. Stat. § 2702(a;(4), into the sentence for attempted rape, 18 Pa. Cons. Stat. § 901(a). Under 18 Pa. Cons. Stat. 2702 (a) (1), an accused can he found Guilty of aggravated assault if he or she attempts to cause serious bodily injury to another, or causes an injury intentionally, knowingly or recklessly under circumstances manifesting an extreme indifference to the value of human life. Where the injury actually inflicted does not constitute serious bodily injury, a verdict of aggravated assault satisfies the statutory requirements if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury; criminal intent may be proved by direct or circumstantial evidence. Commonwealth v. Alexander , 477 Pa. 190, 194 (1978).

With respect to the attempted rape conviction, the Pennsylvania Crimes Code, 18 Pa. Cons. Stat. 901(a), defines attempt as follows: "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." Rape is defined as engaging in sexual intercourse with another, not one's spouse, by forcible compulsion or by a threat of forcible compulsion. 18 Pa. Cons. Stat. SS 3121(1) and (2).

Here, the evidence shows that Senoski charged into the house and grabbed Dove and told her they were going to encase in sexual intercourse whether or not she consented. He proceeded to rip off her clothes and pinned her down while attempting to engage in a sexual act. The evidence which shows that Senoski threatened Dove then pinned her down was sufficient to support the conviction for attempted rape. Commonwealth v. Martin , 307 Pa.Super. 118, 127 (1982). Next, the evidence of Senoski's actions which shows that he struck and cut Dove with a knife supported his conviction of aggravated assault. Based on the evidence that unfolded at trial, each of the crimes required proof of a separate set of facts and, therefore, the sentence of the trial court had a sound basis in the law.

With respect to this claim, Senoski has failed to show that the Pennsylvania Courts' determination of this claim is contrary to, or an unreasonable application of, constitutional law as set forth by the United States Supreme Court. Accordingly, he has not demonstrated that he is eligible for federal habeas corpus relief.

E. The State Courts' Misunderstanding Improper Testimony

Finally, Senoski's claims that the state courts misunderstood "improper testimony". However, nowhere in his filings does he explain the basis for this claim. A federal habeas petitioner has the burden of setting out sufficient facts to support each claim. Moreover, Rule 2(c) of the Rules Governing Habeas Corpus Cases, 28 U.S.C. 2254, expressly provides, in part, that the petitioner "shall set forth in summary form the facts supporting each of the grounds" specified in the petition. Bald assertions and conclusory allegations do not afford a sufficient ground to provide habeas relief. Mayberry v. Petsock , 821 F.2d 179, 185 (3d Cir.), cert. denied, 484 U.S. 946 (1987). Here, Senoski's failure to sufficiently identify the facts upon which his claim is based precludes habeas relief, Zettlemover v. Fulcomer , 923 F.2d 284, 298 & n.12 (3d Cir.), cert. denied, 502 U.S. 902 (1991).

F. Certificate of Appealability

The Antiterrorism and Effective Death Penalty Act of 1996, Pub, L. No. 104-132, 142 Cong. Rec. H3305-01 (1996), signed into law on April 24, 1996, included several major reforms to the federal habeas corpus laws. Section 102 of the Antiterrorism Act (28 U.S.C. § 2253(c) (as amended)) codifies standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas corpus petition. Amended Section 2253 provides that "(a) certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." The Petitioner has not made a showing that he has been denied any of his constitutional rights. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

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

In accordance with the Magistrate's Act, 28 U.S.C. 636 (b)(1)(B) and (C), and Rule 72.1.4 (B) of the Local Rules for Magistrates, objections to this Report and Recommendation are due by March 20, 2006. Responses to objections are due by March 30, 2006.

Jr.

MEMORANDUM ORDER

Kenneth A. Senoski's Petitioner for Writ of Habeas Corpus was received by the Clerk of Court on January 13, 2005, and was referred to United States Magistrate Judge Francis X. Caiazza for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. 3636(b) (1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The Magistrate Judge's Report and Recommendation, filed on March 3, 2006, recommended that the Petition for Writ of Habeas Corpus be denied and that a certificate of appealability be denied.

The parties were allowed ten days from the date of service to file objections. Service was made on the Petitioner by First Class United States Mall delivered to the State Correctional Intuition at Houtzdale, Houtzdale, Pennsylvania, where he is incarcerated and on the Defendant. No objections have been filed.

After review of the pleadings and documents in the case, together with the Report and Recommendation, the following order is entered:

AND NOW, this 21st day of March 2006,

IT IS HEREBY ORDERED the that the Petition for Writ of Habeas Corpus is denied and that a certificate of appealability is denied.

The Report and Recommendation of Magistrate Judge Caiazza, Doc. 13) dated March 3, 2006, is adopted as the opinion of the court.

EXHIBIT B

Esquire The Attorney General of the Stale of Pennsylvania The District Attorney of the County of Allegheny

Date Filed # Docket Text 12/19/2008 1 PETITION for Writ oil Habeas Corpus (Filing fee S 5 receipt number 09001221), filed by KENNETH SENOSKI. (Attachments: 41 Part I - Letter front the Disciplinary Board, # 2 Part 2 - Letter from the Disciplinary Board, # 3 Receipt Filing Fee, 44 Envelope) (plh) (Entered: 12/19/2008) 12/19/2008 (Court only) in Case Assigned to Category Number 3 (plh) (Entered:

12/19/2008) 12/19/2008 2 ORDER, within fifteen (15) days of the date of this notice, Petitioner shall sign and return to the Clerk of the United States District Court for the Western District of Pennsylvania one of the two copies of the attached form, indicating which of the three options he has selected. If he fails to return the attached term within fifteen (15) days of the date of this notice the Court shall rule upon the petition as filed and he will not be able to file another petition at a later time raising new issues. Signed by Judge Cathy Bissoon on 12/19/08. (jhl) (Entered: 12/19/2008) 12/19/2008 3 MOTION for Leave to Proceed in forma pauperis by KENNETH SENOSKI. (plh) (Entered: 12/19/2008) 12/19/2008 4 MOTION for Legal Counsel by KENNETH SENOSKI. (plh) (Entered: 12/19/2008) 12/19/2008 5 MOTION Writ of Certiorari by KENNETH SENOSKI. (plh) (Entered: 12/19/2008) 12/19/2008 ORDER denying as moot 3 Motion for Leave to Proceed in forma pauper's, filing fee paid. Signed by Judge Cathy Bissoon on 12/19/08. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (jhl) (Entered: 12/19/2008) 12/19/2008 6 MOTION to Refile Habeas Corpus by KENNETH SENOSKI. (plh) (Entered: 12/19/2008) 12/19/2008 (Court only) ***CASE. REFERRED TO Law Clerk MLW. (plh) (Entered: 12/19/2008) 01/05/2009 Judge Doneua W. Ambrose and Cathy Bissoon added. Judge Cathy Bissoon no longer presiding. (jIs) (Entered: 01/05/2009) 01/05/2009 7 ORDER denying 4 Motion to Appoint Counsel; denying 5 Motion for Writ of Certiorari; denying 6 Motion to Refile Petition. Signed by Judge Cathy Bissoon on 1/5/09. (mlw) (Entered: 01/05/2009) 01/05/2009 8 REPORT AND RECOMMENDATION that I Petition for Writ of Habeas Corpus filed by KENNETH SENOSKI be dismissed and that a certificate of appealability be denied. Objections to R&R due by 1/22/2009. Signed by Judge Cathy Bissoon on 1/5/09. (mlw) (Entered: 01/05/2009) 01/05/2009 9 MOTION granting Relief on the Grounds of False Identification by KENNETH SENOSKI Motion(s) referred to Cathy Bissoon. (Attachments: (41 Envelope) (plh) (Entered: 01/06/2009) 01/05/2009 10 RESPONSE to 2 Order, choosing Option #1 that with the understanding will be barred from filing a second or subsequent petition unless granted permission by the court of appeals filed by KENNETH SENOSKI. (Attachments: # 1 Envelope) (plh) (Entered: 01/06/2009) 01/15/2009 11 OBJECTIONS to 8 Report and Recommendation by KENNETH

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Kenneth Senoski be dismissed because it is a successive petition. A certificate of appealability should be denied.

II. REPORT

Kenneth Senoski is a state prisoner who was convicted of Aggravated Assault, Attempted Rape and related charges in the Court &Common Pleas of Allegheny County, and who was sentenced to 12 1/2 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.

Senoski filed a petition for writ of habeas corpus in this Court on December 19, 2008. Senoski, however, had filed a previous petition for writ of habeas corpus in this Court at Civil Action No. 05-41. That prior petition was denied on its merits on March 22, 2006 (Doc. 14, Civil Action No. 05-41).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") greatly restricts the power of federal courts to award relief to state prisoners who tile second or successive habeas corpus applications. Tyler v. Cain , 533 U.S. 656. 661-62 (2001). If the prisoner asserts a claim that he or she has already raised in a previous federal habeas petition, the claim must be dismissed. 28 U.S.C. § 2244(b)(1). In the prisoner asserts a claim that was not raised in a previous petition, the claim also must be dismissed unless it falls within one of two narrow exceptions. One exception is reserved for claims predicated on newly discovered facts that call into question the accuracy of a guilty verdict. 28 U.S.C. § 2244(b)(2)(B). The other exception relates to claims relying on new rules of constitutional law. 28 U.S.C. § 2244(b)(2)(A). In both instances, however, if a prisoner opts to file a second or successive section 2254 petition, AEDPA requires that he first seek authorization from the applicable court of appeals. 28 U.S.C. § 2244(3)(A).

Senoski has already filed a first petition for purposes of AEDPA, and he may not now seek habeas relief with respect to the same state court conviction unless he has first moved "in the appropriate court of appeals for an order authorizing the district court to consider the [second or subsequent) application." 28 U.S.C. § 2244(b)(3)(a). The lack of an order from the appellate court deprives this Court of jurisdiction to address the instant petition. "We have made it clear that [u]nless both the procedural and substantive requirements of § 2244 are met, the District Court lacks authority to consider the merits of the petition.'" Goldblum v. Klem , 510 F.3d 204. 217 (3d Cir.2007), quoting Benchoff v. Colleran , 404 F.3d 812, 816 (3d Cir.2005).

A certificate of appealability should be denied because Senoski has not shown that jurists of reason would disagree that his federal habeas petition represents a second or subsequent habeas petition. See, e.g., Slack v. McDaniel , 529 U.S. 473 (2000)(explaining standard for grant of a certificate of appealability where court does not address petition on the merits but rather on a procedural ground); Walker v. Government of The Virgin Island , 230 F.3d 82, 89-90 (3d Cir. 2000).

III. CONCLUSION

For all of the reasons stated above, the Petition for Writ of Habeas Corpus filed by Kenneth Senoski should be dismissed, and a certificate of appealability should be denied.

In accordance with the Magistrates Act, 28 U.S.C. *636(6)(1)(13) and (C), and Rule 72.1.4 (B) of the Local Rules for Magistrates, objections to this Report and Recommendation arc due by January 22, 2009.

MEMORANDUM ORDER

Kenneth Senoski's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 was received by the Clerk of Court on December 19, 2008, and was referred to United States Magistrate Judge Cathy Bissoon for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. 636(b) (1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The Magistrate Judge's Report and Recommendation, filed on January 5, 2009, recommended that the Petition for Writ of Habeas Corpus filed by Petitioner Senosky be dismissed as a successive petition. The parties were allowed ten days from the date of service to file objections. Senosky filed objections or. January 15, 2009 (Doc. 11).

After de novo review of the pleadings and documents in the case, together with the Report and Recommendation and the objections thereto, the following order is entered;

AND NOW, this 20th day of January, 2009.

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus filed by Kenneth Senosky is dismissed, and a certificate of appealability is denied.

IT IS FURTHER ORDERED that the Petitioner's "Motion Granting Relief on the Grounds of False Identification" (Doc. 9), which was filed the same day as the Report in this case, and which seeks the same relief as his petition, is DENIED.

The Report and Recommendation of Magistrate Judge Bissoon (Doc. 8), dated January 5, 2009, is adopted as the opinion of the court.

JUDGMENT ORDER

For the reasons set forth in the Memorandum Order filed contemporaneously herewith, and pursuant to Rule 58 of the Federal Rules of Civil Procedure, FINAL JUDGMENT is hereby entered in favor of the Respondents and against the Petitioner. The Clerk is directed to mark this case closed.

IT IS SO ORDERED on this 20th day of January 2009.

EXHIBIT C

Date Filed # Docket Text 04/26/2010 1 PETITION for Writ of Habeas Corpus (Filing Fee $5.00, receipt number XXXXXXXXXXX), filed by KENNETH SENOSKI. (Attachments: # [Exhibit, # 2 Exhibit. # 3 Exhibit, 4 Exhibit, # 5 Exhibit. # 6 Exhibit, # 7 Exhibit, g 8 Exhibit, # 9 Exhibit, # 10 Receipt, # 11 Envelope) (tt) (Entered: 04/26/2010) 04/26/2010 1 (Court only) *** Case Assigned to Category Number 3 (a) (Entered: 04:26/2010) 04/26/2010 (Court only) ***CASE REFERRED TO Law Clerk MLW. (10 (Entered: 04/26/2010)

04/26/2010 Judge Donetta W. Ambrose added. Judge Cathy Bissoon no longer assigned to case. (mjl) (Entered: 04/26/2010) 04/27/2010 2 MEMORANDUM ORDER: IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus I filed by Kenneth Senoski is DISMISSED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Donetta W. Ambrose on 4/27/2010. (jlh) (Entered: 04/27/2010 04/27/2010 3 JUDGMENT in favor of Respondents against Petitioner. Signed by Judge Donetta W. Ambrose on 4/27/2010. (jlh) (Entered: 04/27/2010)

MEMORANDUM ORDER

Kenneth Senoski is a state prisoner convicted of Aggravated Assault, Attempted Rape and related charges in the Court of Common Pleas of Allegheny County. He 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. This is Kenneth Senoski's third attempt to file a Petition for Writ of Habeas Corpus concerning his state court conviction. His first habeas proceeding was filed at Civil Action No, 05.41, and relief was denied on the merits on March 22, 2006 (Doc. 14, Civil Action No. 05-41). Senoski's second petition, docketed at Civil Action No. 08-1725, was dismissed as an improper second or successive habeas petition on January 20, 2009 (Doc. 12, Civil Action No. 08-1725). Petitioner now seeks to raise additional arguments concerning his state court conviction and sentence.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA'') greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications. Tyler v. Cain , 533 U.S. 656, 661-62 (2001). If the prisoner asserts a claim that he or she has already raised in a previous federal habeas petition, the claim must be dismissed. 28 U.S.C. § 2244(b)(1). If the prisoner asserts a claim that was not raised in a previous petition, the claim also must be dismissed unless it falls within one of two narrow exceptions. One exception is reserved for claims predicated on newly discovered facts that call into question the accuracy of a guilty verdict. 28 U.S.C. § 2244(b)(2)(8). The other exception relates to claims relying on new rules of constitutional law. 28 U.S.C. § 2244(b)(2)(A). In both instances, however, if a prisoner opts to file a second or successive section 2254 petition, AEDPA requires that he first seek authorization from the applicable court of appeals. 28 U.S.C. § 2244(3)(A).

Senoski has already filed a "first" petition for purposes of AEDPA, and he may not now seek habeas relief with respect to the same state court conviction unless he has first successfully moved "in the appropriate court of appeals for an order authorizing the district court to consider the second or subsequent] application." 28 U.S.C. § 2244(b)(3)(a). The lack of an order from an appellate court deprives a district court of jurisdiction over a successive petition. "We have made it clear that [u]nless both the procedural and substantive requirements of § 2244 are met, the District Court lacks authority to consider the merits of the petition" Goldblum v. Klem , 510 F.3d 204, 217 (3d Cir. 2007), quoting Benchoff v. Colleran , 404 F.3d 812, 816 (3d Cir. 2005). Sensoski's instant Petition for Writ of Corpus will 4 dismissed.

A certificate of appealability will be denied because Senoski has not shown that jurists of reason would disagree that his federal habeas petition is a second or subsequent habeas petition. see, e.g., Slack v. McDaniel , 529 U.S. 473 (2000) (explaining standard for grant of a certificate of appealability where court does not address petition on the merits but rather on a procedural ground); Walker v. Government of The Virgin Island , 230 F.3d 82, 89-90 (3d Cir. 2000).

AND NOW, this 27th day of April, 2010.

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus filed by Kenneth Senoski is DISMISSED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

JUDGMENT ORDER

For the reasons set forth in the Memorandum Order filed contemporaneously herewith, and pursuant to Rule 58 of the Federal Rules of Civil Procedure, FINAL JUDGMENT is hereby entered in favor of the Respondents and against the Petitioner. The Clerk is directed to mark this case closed.


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