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Powell v. SCI-Mahanoy Superintendent

United States District Court, M.D. Pennsylvania

November 8, 2019

PAUL POWELL, Petitioner
v.
SCI-MAHANOY SUPERINTENDENT, et al, Respondents

          MEMORANDUM

          ROBERT D. MARLANI UNITED STATES DISTRICT JUDGE

         Petitioner 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 of jurisdiction.

         I. Factual and Procedural Background

         On 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).

         After 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)).

         On 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).

         On 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)).

         On 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. See id.

         On or 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.)).

         On August 2, 2017, Powell filed the instant federal habeas petition. (Doc. 1).

         II. Second or Successive Habeas Petition

         The 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)(3)(C).

         Section 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 to ...


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