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Sierra v. Kane

United States District Court, M.D. Pennsylvania

December 7, 2017

ANTONIO SIERRA, Petitioner
v.
KATHLEEN KANE, et al., Respondents

          MEMORANDUM

          A. RICHARD CAPUTO UNITED STATES DISTRICT JUDGE

         I. Introduction

         Antonio Sierra, a Pennsylvania state inmate proceeding pro se and in forma pauperis, 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 Western District of Pennsylvania on January 3, 2017. (ECF No. 1.) The petition was transferred on August 3, 2017, pursuant to 28 U.S.C. § 2241(d). (ECF No. 9.)

         Named as Respondents are former Pennsylvania Attorney General Kathleen Kane and, the former Superintendent of the Albion State Correctional Institution (SCI-Albion), Nancy Giroux. Mr. Sierra is housed at SCI-Albion in Albion, Pennsylvania.[1] In his petition, Mr. Sierra challenges his 1998 state sentence in the Lebanon County Court of Common Pleas.

         Preliminary review of the petition has been undertaken, see R. Governing § 2254 Cases R. 4, [2] and for the reasons that follow, the petition will be dismissed as a successive petition filed without authorization from the United States Court of Appeals for the Third Circuit as required by 28 U.S.C. § 2244(b).

         II. Background

         On September 11, 1998, following a jury trial in the Lebanon County Court of Common Pleas, Mr. Sierra and a co-defendant were found guilty of the following offenses: criminal attempt to commit criminal homicide (three counts) graded in the third degree; aggravated assault (six counts); reckless endangerment (three counts), unlawful restraint (three counts); arson (three counts), theft (three counts), attempted theft (three counts), robbery (eight counts), and criminal conspiracy (one count). See Commonwealth v. Sierra, CP-38-CR-1239-1997 (Pa. Ct. Com. Pl. Lebanon Cty.)[3] Mr. Sierra was sentenced to an aggregate term of twenty (20) to sixty (60) years' imprisonment. On November 18, 1998, his post-sentence motions were denied.

         Mr. Sierra filed a direct appeal to the Superior Court of Pennsylvania. See Commonwealth v. Sierra, 111 MDA 1999 (Pa. Super. Ct.). Shortly thereafter, Petitioner filed a motion under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq., which was denied based on the status of his direct appeal. On October 13, 1999, the Superior Court dismissed Mr. Sierra's direct appeal due to his failure to file a brief.

         On February 16, 2000, Petitioner filed a second PCRA petition. On May 12, 2000, the trial court granted Mr. Sierra leave to file an appeal nunc pro tunc. On May 2, 2001, the Superior Court affirmed Petitioner's conviction and sentence. See Commonwealth v. Sierra, 1409 MDA 2000 (Pa. Super. Ct.). Petitioner did not file an appeal to the Pennsylvania Supreme Court.

         Mr. Sierra did not file any further pleadings until 2004 when he filed a petition to vacate. On March 23, 2004, the sentencing court summarily denied the petition. Mr. Sierra then filed an appeal with the Superior Court of Pennsylvania. See Commonwealth v. Sierra, 593 MDA 2004 (Pa. Super. Ct.). The Superior court denied relief on October 7, 2004, and the Pennsylvania Supreme Court denied Petitioner's request for allowance of appeal on April 19, 2005.

         On September 12, 2005 Mr. Sierra filed a petition for writ of habeas corpus (first petition) in the United States District Court for the Eastern District of Pennsylvania. The matter was transferred to this Court on March 23, 2006. See Sierra v. Diguglielmo, Civ. No. 3:CV-06-0604 (M.D. Pa.). On July 18, 2006, following a review of Mr. Sierra's petition and Respondents' response, the Petition was dismissed on the basis that it was untimely. By order dated January 25, 2007, the United States Court of Appeals for the Third Circuit denied Mr. Sierra's request for a certificate of appealability. See Sierra v. Diguglielmo, C.A. No. 06-3750 (3d Cir., Jan. 25, 2007).

         On January 3, 2017, Mr. Sierra filed the present petition for writ of habeas corpus (second petition) with the United States District Court for the Western District of Pennsylvania. The Western District directed Mr. Sierra to file an amended habeas petition challenging either his judgment sentence imposed by the Court of Common Pleas of Erie County or Lebanon County, but not both in the same petition. (ECF No. 5.) Mr. Sierra filed an amended petition on February 16, 2017. (ECF No. 6). The Western District administratively closed the case advised Petition that should he file a proper Petition, the case would be reopened. (ECF No. 7.) On August 2, 2017, Mr. Sierra filed a second amended habeas petition (ECF No. 8) challenging his Lebanon County sentence. The Western District promptly transferred the matter to this Court pursuant to 28 U.S.C. § 2241(d). (ECF No. 9.)

         Shortly thereafter Mr. Sierra filed a document entitled “Motion of Petitioner, ” (ECF No. 11) asking the Western District to process his second amended habeas petition and over three hundred and thirty pages of supporting exhibits. (Id.) Petitioner did not file a brief in support of his motion.

         In his second amended habeas petition, Mr. Sierra contends that “no judgment of conviction [from the Lebanon County Court of Common Pleas] exists, and while restrained liberty of Sierra is apparent, whatever so be, all this from its inception is without authority, void and reference to the same as it is anything flowing from the 1998 Jury verdict to this present petition does not serve to give the illegality any ...


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