United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
LINDA K. CARACAPPA, Magistrate Judge.
Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution-Dallas, in Dallas, Pennsylvania. For the reasons that follow, it is recommended that the petition be DENIED.
I. PROCEDURAL HISTORY
In 1981 and 1982, following a jury trial in the Court of Common Pleas of Bucks County, petitioner was convicted of robbery, theft, two counts of simple assault, two counts of indecent assault, two counts of rape, two counts of unlawful restraint, and one count of indecent exposure and was subsequently sentenced to an aggregate term of twenty (20) to forty (40) years' imprisonment. Additionally, on October 5, 1990, petitioner was convicted in the Court of Common Pleas of Luzerne County of one count of possession of drug paraphernalia and sentenced to a consecutive fifteen (15) days of incarceration. See Resp. to Habeas Pet., Ex. 2 (Report and Recommendation).
On June 9, 2004, petitioner filed a petition for Writ of Habeas Corpus in the United States District Court for the Middle District of Pennsylvania. In his petition, petitioner maintained, in part, he was granted "constructive parole" in 1991 on his initial 1981 sentence of ten (10) to twenty (20) years' incarceration, and he began his "second and final" sentence of ten (10) to twenty (20) years' incarceration in 1991. Petitioner stated in 2000, however, the Department of Corrections ("DOC") unlawfully aggregated his sentences, and, as a result, his "constructive parole" was rescinded in violation of his due process rights under the Fourteenth Amendment to the United States Constitution. See id. On June 3, 2005, petitioner's petition for Writ of Habeas Corpus was denied on the merits. Id.
On September 3, 2014, petitioner filed the instant pro se petition for Writ of Habeas Corpus. Petitioner maintains:
1. The Pennsylvania Board of Parole deprived petitioner's right to Due Process in violation of the Fourteenth Amendment to the United States Constitution by revoking petitioner's consecutive parole without conducting a parole revocation hearing and rescinding petitioner's constructive parole and reinstating the original sentence;
2. The Department of Corrections abused its discretion in violating petitioner's right to Due Process in changing the Bucks County sentence structure; and
3. Petitioner is being unlawfully imprisoned past the expiration of his Bucks County Sentence.
See Habeas Pet. at 8-12.
Respondents contend the instant habeas petition should be dismissed as a second or successive petition. Upon independent review, we agree the habeas petition constitutes a second or successive petition, and we recommend the instant petition be dismissed.
Congress established procedural and substantive requirements governing "second or successive" habeas petitions through section 2244 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C § 2244; see also Benchoff v. Colleran, 404 F.3d 812, 815 (3d Cir. 2005). As a procedural matter, section 2244 provides a "gatekeeping mechanism" for consideration of second or successive applications for habeas review in federal courts. Stewart v. Arizona Dep't of Correction, 523 U.S. 637, 641 (1998) (internal quotations and citations omitted); 28 U.S.C. § 2244(b). A petitioner seeking to file a second or successive writ of habeas corpus pursuant to 28 U.S.C. § 2254 must first obtain approval from the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). A court of appeals' decision to grant or deny authorization to file a second or successive application "shall not be appealable and shall not be the subject of a petition for rehearing or for writ of certiorari." 28 U.S.C. § 2244(b)(3)(E). It is well established in the Third Circuit that "[w]hen a second or successive habeas petition is erroneously filed in a district court without the permission of a court of appeals, the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 8 U.S.C. § 1631." Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002).
As a substantive matter, the AEDPA provides that any claim presented in a second or successive habeas corpus application that was previously raised in a prior application shall be dismissed. 28 U.S.C. § 2244(b)(1). If a claim presented in a second or successive habeas ...