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McConnell v. Thompson

United States District Court, Western District of Pennsylvania

July 23, 2014

ARTHER McCONNELL, Petitioner,
v.
WARDEN BRIAN H. THOMPSON; COMMONWEALTH OF PENNSYLVANIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

Cathy Bissoon Judge

REPORT AND RECOMMENDATION

Maureen P. Kelly, Magistrate Judge

I. RECOMMENDATION

For the reasons that follow, it is respectfully recommended that this Petition for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), filed pursuant to 28 U.S.C. § 2254, be dismissed pre-service because Petitioner fails to show that it is not a second or successive petition, and, as such, this Court lacks jurisdiction over the Petition. In the alternative, the Petition is time-barred.

II. REPORT

A. Relevant Procedural History

Arthur McConnell (“Petitioner”) is currently incarcerated in the State Correctional Institution at Mercer (“SCI-Mercer”). The Petition attacks a 1968 conviction for first degree murder and rape that was obtained in the Court of Common Pleas of Mercer County.[1] In October 1968, Petitioner was sentenced to life in prison without the possibility of parole. We take judicial notice of the fact that, on September 20, 1974, Petitioner filed a Section 2254 habeas petition in this Court (“the First Petition”), challenging a conviction arising out of the Court of Common Pleas of Mercer County. The First Petition was dismissed by memorandum order on September 17, 1975. The case is so old that the actual records are apparently no longer available to this Court. The Court was able to retrieve the docket sheet from the archives and a copy of that docket sheet is attached hereto as an appendix. Given that the dockets of the Court of Common Pleas of Mercer County show only one criminal trial for Petitioner arising out of that County, namely, the first degree murder and rape conviction from 1968, it appears that Petitioner has only one criminal conviction.

In addition, Petitioner’s Department of Corrections Inmate Identification Number which is sentence specific (meaning that as long as one is serving a specific sentence, then the Department of Corrections Inmate Identification Number remains the same but when an inmate starts serving a different sentence, then the prisoner is assigned a new DOC Inmate Identification Number), was listed on the docket from the First Petition as C-9059 and is now listed on the DOC Inmate Locator website as AC-9059, which the Court deems to be the same. Accordingly, it appears that Petitioner has been continuously serving the same life sentence since 1968, and that the conviction/sentence which was attacked in the First Petition is the same conviction/sentence that Petitioner is now attacking. Because Petitioner has failed to carry his burden to show that this Petition is not second or successive, the Petition should be dismissed. In the alternative, the Petition should be dismissed because it is time-barred.

B. Rule 4 of the Rules Governing Section 2254 Cases

Rule 4 of the Rules governing Section 2254 cases (“Rule 4”) and hence, the instant Petition, provides in relevant part that:

The clerk must promptly forward the [Section 2254 habeas] petition to a judge under the court’s assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

In interpreting Rule 4, the Advisory Committee Notes to Rule 4 observe that:

28 U.S.C. § 2243 requires that the writ shall be awarded, or an order to show cause issued, “unless it appears from the application that the applicant or person detained is not entitled thereto.” Such consideration may properly encompass any exhibits attached to the petition, including, but not limited to, transcripts, sentencing records, and copies of state court opinions. The judge may order any of these items for his consideration if they are not yet included with the petition.

In addition to ordering state court records and/or opinions, a federal habeas court may, under Rule 4, take judicial notice of those state court records and/or state court opinions as well as its own court records. See, e.g., Barber v. Cockrell, 4:01–CV–0930, 2002 WL 63079, at *1 n.4 (N.D.Tex. Jan. 8, 2002)(in a Rule 4 case, the court took judicial notice of its own records of a prior habeas petition filed by the petitioner); United States ex. rel. Martin v. Gramley, No. 98 C 1984, 1998 WL 312014, at *1 (N.D. Ill. June 3, 1998)(in a Rule 4 summary dismissal, the court took “judicial notice of the opinion of the Illinois Appellate Court in this case.”); Barber v. Cockrell, No. 4:01-CV-930, 2002 WL 63079, at * 1 (N.D. Tex. Jan. 8, 2002)(in a Rule 4 case, the court stated that from “the face of the petition, and from [state] court records of which this Court can take judicial notice, the court determines that this is a successive ...


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