United States District Court, M.D. Pennsylvania
John E. Jones III Judge
Johnson (“Johnson”), a Pennsylvania state inmate,
initially filed the instant Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 in the United States
District Court for the Eastern District of Pennsylvania on
November 23, 2016. (Doc. 1). The petition was transferred to
this Court on January 11, 2017, pursuant to 28 U.S.C.
§2241(d). (Docs. 3, 6).
review of the petition, Respondents' response and
exhibits (Doc. 17), and Petitioner's traverse (Doc. 18),
it is concluded that this Court lacks jurisdiction over the
petition. Consequently, the petition will be dismissed.
January 17, 2003, and August 8, 2003, two separate juries
convicted Johnson of three counts of Criminal Attempt
Homicide, three counts of Aggravated assault, Possession with
Intent to Deliver a Controlled Substance, Carrying a Firearm
Without a License, Theft by Unlawful Taking, five counts of
Recklessly Endangering Another Person, two counts of Flight
to Avoid Apprehension, two counts of Resisting Arrest,
Possessing Instruments of Crime, and False Reports, in the
Court of Common Pleas of Dauphin County, Pennsylvania,
Criminal docket numbers “0654-2002,
0655-2002.” (Doc. 1, p. 1; Doc. 17, pp. 1, 2). He
challenges these convictions and sentence in his present
§ 2254 petition.
Court previously entertained a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, filed by Johnson in
2007, challenging the same convictions and sentence he seeks
to challenge in his present petition. Johnson v.
Shaw, M.D.Pa. No. 4:07-cv-0369. A lengthy Memorandum and
Order issued denying that petition, in toto, on the
grounds that Johnson's properly exhausted claims were
meritless and the remaining claims were unexhausted and
procedurally defaulted. Johnson v. Shaw, No.
4:07-cv-0369, 2011 WL1085781 (M.D.Pa. March 2011). A
Certificate of Appealability was denied. Id.
seek dismissal of the present petition based on Johnson's
failure to obtain authorization from the United States Court
of Appeals for the Third Circuit to file a second or
successive petition. (Doc. 17, p.7).
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a stringent set of procedures that a prisoner
“in custody pursuant to the judgment of a State court,
” must follow if he wishes to file a “second or
successive” habeas corpus application challenging that
custody. 28 U.S.C. §§ 2245(a), 2244(b)(1), (2).
Before filing the application in the district court, a
prisoner “shall move in 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 three-judge panel of the court of
appeals may authorize the filing of the second or successive
application only if it presents a claim not previously raised
that satisfies one of the two grounds articulated in §
2244(b)(2). § 2244(b)(3)(C); Gonzalez v.
Crosby, 545 U.S. 524, 529-530, 125 S.Ct. 2641, 162
L.Ed.2d 480 (2005); see also Felker v. Turpin, 518
U.S. 651, 656-657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827
(1996).” Burton v. Stewart, 549 U.S. 147, 153
(2007). If a petitioner erroneously files a second or
successive habeas petition in a district court without first
obtaining permission from the court of appeals, “the
district court's only option is to dismiss the petition
or transfer it to the court of appeals pursuant to 28 U.S.C.
§ 1631.” Robinson v. Johnson, 313 F.3d
128, 139 (3d Cir. 2002).
noted supra, in a prior application for writ of
habeas corpus, this Court passed on the legality of the very
convictions and sentence Johnson seeks to challenge in his
present petition. As a result, under the AEDPA, he is
required to receive authorization from the Court of Appeals
before pursing his second challenge. The record is clear that
Petitioner has not obtained leave from the Court of Appeals
for the Third Circuit prior to filing the present petition.
Because he did not do so, this Court is without jurisdiction
to entertain it. See Burton v. Stewart, 549 U.S.
147, 153 (2007) (where a state prisoner filed a second or
successive habeas petition, and “did not seek or obtain
authorization to file in the District Court, the District
Court never had jurisdiction to consider it in the first
on the foregoing, the petition will be dismissed pursuant to
28 U.S.C. § 2244(b)(3) for lack of jurisdiction.