United States District Court, M.D. Pennsylvania
D. MARLANI UNITED STATES DISTRICT JUDGE
Paul Powell ("Powell") filed the instant petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging a conviction and sentence imposed in the Court of
Common Pleas of Luzerne County, Pennsylvania. For the reasons
set forth below, the Court will dismiss the petition for lack
Factual and Procedural Background
February 5, 1990, Roy Myran was shot outside a bar in
Wilkes-Barre, Pennsylvania. (Doc. 27-1, p. 14). Powell and
his brother, Robert Powell, were arrested and charged with
killing Myran. On October 8, 1991, following a bench trial in
the Court of Common Pleas of Luzerne County, the brothers
were each convicted of first-degree murder, among other
charges, in the homicide of Myran. (Doc. 27-1, pp. 4-5). On
May 20, 1993, each brother was sentenced to life in prison.
(Doc. 27-1, p. 51).
the judgments of sentence were imposed, Powell filed a timely
direct appeal to the Pennsylvania Superior Court. (Doc. 27-1,
p. 56). On January 17, 1995, the Superior Court affirmed the
judgment of sentence. (Doc. 27-1, pp. 63-71; Commonwealth
v. Powell, 660 A.2d 124 (Pa. Super. 1995)). Powell filed
a petition for allowance of appeal to the Pennsylvania
Supreme Court. (Doc. 27-2, pp. 1-37). On September 15, 1995,
the Pennsylvania Supreme Court denied the petition. (Doc.
27-2, pp. 38; Commonwealth v. Powell, 542 Pa. 634,
665 A.2d 469 (Pa. 1995) (table decision)).
January 15, 1997, Powell filed a timely pro se PCRA
petition. (Doc. 27-2, pp.1-37). The PCRA court subsequently
appointed counsel. See Commonwealth v. Powell, 2016
WL 5865855, at *1 (Pa. Super. Aug. 11, 2016). Powell
thereafter filed a petition to obtain substitute counsel,
which the court denied. See Id. Powell then filed a
petition to proceed pro se. See Id. Following a
hearing on September 9, 1998, the PCRA court permitted
counsel to withdraw, and further permitted Powell to file an
amended PCRA petition pro se. See Id. On October 5,
1998, Powell filed an amended pro se PCRA petition.
See Id. On March 16, 2000, the PCRA court denied
relief. See Id. On March 29, 2000, Powell filed a
pro se notice of appeal with the Pennsylvania
Superior Court. See Id. On December 4, 2001, the
Superior Court vacated the order dismissing Powell's
amended PCRA petition and remanded the matter for appointment
of counsel. Commonwealth v. Powell, 787 A.2d 1017
(Pa. Super. 2001).
January 18, 2002, the PCRA court appointed counsel for
Powell. See Commonwealth v. Powell, Nos.
1990-904/5 (Luzerne Cty. Ct. Aug. 26, 2002). On July 17,
2002, a PCRA hearing was held, and on August 26, 2002, the
PCRA court dismissed the amended PCRA petition. See
Id. Powell then filed a pro se appeal to the
Superior Court. (See Doc. 27-2, p. 39). On October 29, 2003,
the Superior Court affirmed the PCRA court's order, and
the Pennsylvania Supreme Court denied allowance of appeal.
(Doc. 27-2, pp. 39-65, 67; Commonwealth v. Powell,
841 A.2d 578 (Pa. Super. 2003) (unpublished memorandum),
appeal denied, 864 A.2d 1204 (Pa. 2005)).
March 31, 2005, Powell filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his
Luzerne County Court of Common Pleas conviction and sentence.
See Powell v. Wynder, No. 3:05-cv-647 (M.D. Pa.). On
September 30, 2008, Powell's § 2254 habeas corpus
petition was denied on the merits. Id. at (Doc. 66).
Powell then filed a request for a certificate of
appealability in the United States Court of Appeals for the
Third Circuit. Powell v. Wynder, et a/., No. 08-4196
(3d Cir.). On October 8, 2009, the Third Circuit Court of
Appeals denied the request for a certificate of
appealability. See Id. Powell filed a petition for
writ of certiorari to the United States Supreme Court.
See Id. On October 4, 2010, the United States
Supreme Court denied the petition for writ of certiorari.
about January 2, 2014, Powell filed a serial PCRA petition.
(Doc. 27-4, pp. 1-15). On May 12, 2014, Powell filed an
amended PCRA petition and, with leave of court, a second
amended petition on June 20, 2014. (Doc. 27-4, pp. 16-23). In
the petition, Powell claimed that an eyewitness to the
murder, Charles Eckhart, came forward with new information,
and that a new witness to the murder, Stanley Petroski, came
forward. (Id.). On December 14, 2014, the PCRA court
held a hearing. (Doc. 27-4, pp. 46-74). At the hearing, trial
counsel testified that the defense theory was intoxication,
arguing that Powell was too drunk to form the intent
necessary for first degree murder. (Doc. 274, pp. 49-52, NT.
at 9-19). Additionally, Powell and his brother Robert
testified, as well as Charles Eckhart and Stanley Petroski.
(Doc. 27-4, pp. 60-62, 69-71, NT. at 51-52, 56-60, 90-95). On
May 12, 2015, following the evidentiary hearing, the PCRA
court dismissed the petition as untimely. (Doc. 27-5, p. 6).
Powell filed a notice of appeal to the Pennsylvania Superior
Court. (Doc. 27-5, p. 7). On August 11, 2016, the Superior
Court affirmed the PCRA court's dismissal of the
petition. (Doc. 27-6, pp. 22-32; Commonwealth v.
Powell, 2016 WL 5865855 (Pa. Super. Aug. 11, 2016)). The
Superior Court found that the PCRA petition was untimely and
that Powell failed to prove an exception to the time bar.
Commonwealth v. Powell, 2016 WL 5865855, at *2-5.
Specifically, the Superior Court agreed with the PCRA's
court determination that Charles Eckhart's testimony was
cumulative evidence of Powell's intoxication, and
therefore, Powell failed to prove that Charles Eckhart's
October 2013 statement constituted after-discovered facts
that could render the serial petition timely. Id. at
*4. The Superior Court further noted that although Stanley
Petroski was unavailable to Powell and the Commonwealth at
the time of trial, Powell was able to admit Stanley
Petroski's written statement wherein he stated his belief
that Powell was drunk on the night of the murder.
Id. After the Superior Court issued its decision,
Powell filed a petition for allowance of appeal nunc pro
tune with the Pennsylvania Supreme Court. (Doc. 27-6,
pp. 45-46). On March 28, 2017, the Pennsylvania Supreme Court
denied the petition for leave to file a petition for
allowance of appeal nunc pro tune. (Doc. 27-6, p.
57, Commonwealth v. Powell, 15 MM 2017 (Pa.)).
August 2, 2017, Powell filed the instant federal habeas
petition. (Doc. 1).
Second or Successive Habeas Petition
Antiterrorism and Effective Death Penalty Act
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996), specifically provides that "[b]efore a second
or successive application permitted by this section is filed
in the district court, the applicant 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); see Burton v. Stewart, 549
U.S. 147, 153 (2007) (if a petitioner does not receive the
required authorization from the court of appeals before
filing a second or successive petition, the district court is
"without jurisdiction to entertain it");
Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002)
(holding that, absent an order from the circuit court
granting leave to a petitioner, a district court does not
have subject matter jurisdiction to entertain a petition for
writ of habeas corpus that it deems to be a second or
successive petition). 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 requirements, which
are set forth in § 2244(b)(2). See U.S.C.
2244(b)'s requirement that prisoners obtain authorization
from the appropriate court of appeals before filing "a
second or successive habeas corpus application under section
2254" with the district court is jurisdictional.
Burton v. Stewart,549 U.S. 147, 149 (2007). Here,
Powell has not obtained, or sought to obtain, any
authorization from the Third Circuit. Therefore, this Court
must first determine whether the instant petition is subject