AUSTIN v. STATE OF NEW JERSEY
Filing
2
OPINION filed. Signed by Judge Peter G. Sheridan on 5/14/2013. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR DISTRICT OF NEW JERSEY
JOSEPH T.
AUSTIN,
Civil Action No.
12—6605 (PGS)
Petitioner,
V.
STATE OF NEW JERSEY et al.,
OPINION
Respondents.
Petitioner filed a p se petition,
1.
Petitioner had already filed a § 2255 petition raising
such a challenge.
No.
§
Docket Entry
challenging his state-imposed sentence.
2254,
No.
pursuant to 28 U.S.C.
07-4428
See Austin v.
Ricci
(“Austin-I”),
Civil Action
(MLC) (DNJ).
Petitioner was advised,
In that prior action,
Mason v. Meyers,
208 F.3d 414
(3d Cir.
2000),
pursuant to
about the
consequences of filing a § 2254 application under the
Antiterrorism and Effective Death Penalty Act
No.
104-132,
110 Stat.
1214
(1996),
(“AEDPA”),
and he was given an
opportunity to file one all-inclusive § 2254 Application.
Austin-I,
Docket Entry No.
3.
Thereafter,
Austin-I petition dismissed on merits.
Nos.
19 and 20.
Pub.L.
See
Petitioner had his
j,
Docket Entries
The United States Court of Appeals for the Third
Circuit denied him a certificate of appealability in that case.
See id.,
Docket Entry No.
23.
United States Code Title 28,
Section 2244(b) (3) (A),
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.”
Courts are in agreement that a prior dismissal of § 2254
petition on the merits renders a later-filed petition “second or
See Whab v.
successive.”
Cir.
2005)
the disposition of an earlier petition must qualify
467,
No 09-0192,
Pa. April 30,
(M.D.
483
(2d
bringing into play AEDPA’s gatekeeping
as an adjudication on the merits”);
Schuylkill,
118
408 F.3d 116,
(“[F]or a subsequent petition to be considered ‘second
or successive,
provisions,
United States,
(1991),
Hart v. Warden,
2009 U.S. Dist.
2009)
FCI
LEXIS 124755,
(relying on McCleskey v.
at *4_5
Zant,
499 U.S.
in order to provide an exhaustive treatment of
the issue)
The term “second or successive” is not defined in the
statute, but it is well settled that the phrase does not simply
“refe[r] to all § 2254 applications filed second or successively
Panetti v. Quarterman, 551 U.S. 930, 944 (2007); see
in time.”
also Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (treating
a second application as part of a first application where it was
premised on a newly ripened claim that had been dismissed from
the first application as premature); Slack v. McDaniel, 529 U.S.
473 (2000) (declining to apply the bar of § 2244(b) to a second
application where the first application was dismissed for lack of
exhaustion)
1
2
Here,
merits.
Petitioner’s Austin-I action was adjudicated on the
Therefore,
his instant petition is second/successive.
If a second or successive petition is filed in the district
court without an order from the appropriate court of appeals,
the
district court may dismiss for want of jurisdiction or “shall,
if
it is in the interest of justice,
transfer such action
any other such court in which the action
brought at the time it was filed.”
Robinson v. Johnson,
313 F.3d 128,
.
.
28 U.S.C.
139
.
.
.
to
could have been
.
§ 1631;
see also
2002)
(“When a
(3d Cir.
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 28 u.s.c.
§
1631.”)
Here,
Petitioner does not assert that he has received
permission to file the petition at bar from the United States
court of Appeals for the Third circuit.
Moreover,
this court
finds that it is not in the interest of justice to transfer this
action to the court of Appeals, pursuant to 28 u.s.c.
§ 1631,
since Petitioner was already denied a certificate of
appealability as to his substantively identical Austin-I
challenges.
Accordingly,
the petition at bar will be dismissed as an
unauthorized second or successive petition, without prejudice to
3
Petitioner applying to the Court of Appeals for authorization to
file a second or successive petition.
Pursuant to 28 U.S.C.
§ 2253(c),
unless a circuit justice or
judge issues a certificate of appealability,
an appeal may not be
taken from a final order in a proceeding under 28 U.S.C.
§ 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C.
“A petitioner satisfies this
§ 2253(c) (2).
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.”
Cockrell,
537 U.S.
322,
327
(2003)
.
Miller-El v.
When the district court
denies a habeas petition on procedural grounds without reaching
the prisoners underlying constitutional claim,
a certificate of
appealability should issue when the prisoner shows,
at least,
that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.
Slack,
529 U.S.
Here,
at 484.
jurists of reason would not disagree with this Court’s
procedural ruling.
petition,
See
Therefore,
the Court will dismiss the
and no certificate of appealability will issue.
4
An appropriate Order follows.
Peter G. Sheridan,
United States District Judge
Dated:
5
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