LONG v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE

Filing 13

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 8/9/17. 8/9/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WENDELL LONG
Petitioner, pro se
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE, et al.
Respondents

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CIVIL ACTION
NO. 14-4171

NITZA I. QUIÑONES ALEJANDRO, J.

AUGUST 9, 2017

MEMORANDUM OPINION
Petitioner Wendell Long (“Petitioner”), a Pennsylvania state prisoner, filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254,1 in which he essentially asserts
that the Pennsylvania Board of Probation and Parole (“Parole Board”), in denying him parole on
January 31, 2013, violated the Ex Post Facto Clause and the Fifth Amendment of the United States
Constitution as well as his due process rights. [ECF 1]. In accordance with Title 28 U.S.C

§636(b), Rule 8 of the Rules Governing Section 2254 Cases, and Local Civil Rule 72.1.IV(c), the
habeas petition was referred to United States Magistrate Judge Carol Sandra Moore Wells (the
“Magistrate Judge” or “Magistrate Judge Wells”) for a Report and Recommendation (“R&R”).
[ECF 4].

On June 9, 2017, Magistrate Judge Wells issued a well-reasoned R&R, which

addressed Petitioner’s claims, and recommended that the habeas petition be transferred to the
United States Court of Appeals for the Third Circuit because the underlying petition was a
“second or successive petition.” [ECF 10]. On June 21, 2017, Petitioner filed timely objections
to the R&R. [ECF 11]. This matter is, therefore, ripe for disposition.

1

Petitioner incorrectly cited §2554, rather than §2254.

After a thorough and independent review of the state court record and court filings, for
the reasons stated herein, Petitioner’s objections are overruled, the R&R is approved and
adopted, in part, and the petition for a writ of habeas corpus is denied.
BACKGROUND
The facts and procedural history underlying Petitioner’s convictions are undisputed, are
adequately summarized in the R&R, and need not herein be repeated in their entirety. Suffice it
to state, Petitioner’s last conviction was in 1980 for involuntary deviant sexual intercourse,
robbery and simple assault for which he received a total aggregated sentence of 21 to 42 years.
On January 9, 2015, Petitioner filed the underlying pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. §2254, [ECF 3], which was referred to Magistrate Judge Wells for
an R&R. As noted, the Magistrate Judge recommended that the petition be transferred to the
Third Circuit Court of Appeals because it was a “second or successive” petition for which
Petitioner had not sought or received permission from the Court of Appeals to file. [ECF 10].
Petitioner’s objections to the R&R merely repeat the arguments presented to the Magistrate
Judge in Petitioner’s underlying habeas filings.
LEGAL STANDARDS
Where objections to an R&R are filed, the court must conduct a de novo review of the
contested portions of the R&R, see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989)
(citing 28 U.S.C. §636(b)(1)(C)), provided that the objections are both timely and specific.
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In conducting its de novo review, a court may
accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the
magistrate judge. 28 U.S.C. §636(b)(1). Although the review is de novo, the statute permits the
court to rely on the recommendations of the magistrate judge to the extent it deems proper.
2

United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7. Objections which
merely restate arguments presented to and considered by a magistrate judge are not entitled to de
novo review. Becker v. Tennis, 2011 WL 2550544, at *1 n.3 (E.D. Pa. June 23, 2011) (declining
to address contentions included in petitioner’s objections, concluding that they are “nothing more
than a restatement of the underlying claims contained in his petition”) (citing Morgan v. Astrue,
2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)); see also Nghiem v. Kerestes, 2009 WL
960046, at *1 n.1 (E.D. Pa. Apr. 3, 2009) (declining to engage in additional review of objections
where the objections merely re-articulated all the claims and theories for relief that were
addressed and dismissed by the magistrate judge).
DISCUSSION
Petitioner’s current habeas petition is his fourth challenge of the Parole Board’s denial of
parole.2 As in his previous habeas petitions, Petitioner’s current habeas claims are premised on
the contention that the Parole Board’s decision to deny him parole violated his rights to due
process because the Parole Board applied an “undefined standard” to reach its decision, violated
the Ex Post Facto Clause of the Constitution when it applied post-1996 parole criteria, and
violated his Fifth Amendment rights. These are the identical arguments made in Long III. See
Long v. Pennsylvania Bd. of Probation and Parole, 2012 WL 2319247 (E.D. Pa. May 14, 2012),
adopted by, 2012 WL 2319183 (E.D. Pa. Jun. 19, 2012).3

Petitioner’s three previous habeas petitions were filed in and disposed of by the United States
District Court for the Middle District of Pennsylvania. See Wendell Long v. Pennsylvania Bd. of
Probation and Parole, Civil No. 1:CV-04-699 (M.D. Pa.) (“Long I”); Wendell Long v. Pennsylvania Bd.
of Probation and Parole, Civil No. 3:CV-08-0943 (M.D. Pa.) (“Long II”); Wendell Long v. Pennsylvania
Bd. of Probation and Parole, Civil No. 1:11-CV-2347 (M.D. Pa.) (“Long III”).
2

Petitioner’s subsequent appeal to the United States Court of Appeals for the Third Circuit was
denied by Order dated November 27, 2012.
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In his objections to the R&R, Petitioner offers no argument to address the Magistrate
Judge’s conclusions nor does he dispute that this habeas petition is not any different from his
other previous habeas petitions, except for the date of the Parole Board’s recent denial of parole.
Indeed, Petitioner’s objections are virtually identical to, and merely rehash the arguments made
in Petitioner’s other habeas filings and, thus, are not entitled to de novo review.
Notwithstanding, after reviewing all of the previous habeas petitions filed by Petitioner, this
Court finds no error in the Magistrate Judge’s conclusion that the instant petition is and
constitutes a “second or successive” habeas petition for which this Court lacks jurisdiction to
consider. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§2241 et seq. governs the procedure for filing a petition for the issuance of a writ of habeas
corpus, and specifically provides:
No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention
of a person pursuant to a judgment of a court of the United States if
it appears that the legality of such detention has been determined
by a judge or court of the United States on a prior application for a
writ of habeas corpus.
28 U.S.C. §2244(a).
Further, §2244(b)(1) provides that “[a] claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a prior application shall be
dismissed.” Id. (emphasis added). In addition, a habeas petition that asserts claims that could
have been brought in a previous petition but were not is also deemed a second or successive
petition. Berry v. Kauffman, 208 F. Supp. 3d 676, 680 (E.D. Pa. 2016) (“A petition is ‘second
or successive’ if it includes ‘claims that could have been raised in an earlier habeas corpus
petition.’”) (quoting Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005)).

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Section 2244(b)(2) provides limited exceptions to the rule barring claims that were
omitted from a previous habeas petition; to wit:
A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless –
(A) the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(B)(ii) the facts underlying the claim, if proven and viewed in the light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for the constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
Id. Before this Court may consider a second or successive petition, however, a petitioner must
first seek and obtain permission from the Court of Appeals. Id. at §2244(b)(3)(A) (“Before 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 authorized the district court
to consider the application.”); Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (“Unless
the court of appeals grants such permission, the district court may not consider second or
successive petition.”).
Here, as determined by the Magistrate Judge, Petitioner’s underlying habeas petition
challenges the Parole Board’s most recent denial of parole on two of the same constitutional
bases that he asserted in his previous habeas petitions, i.e., violation of due process and the Ex
Post Facto Clause. Petitioner also asserts a new constitutional challenge to the parole denial
premised on the Fifth Amendment, which could have been raised in his earlier habeas petitions.
Because these claims have either already been asserted or could have been asserted in
Petitioner’s previous habeas petitions, his underlying habeas petition (his fourth) is a successive
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petition. As such, before this Court can consider this underlying petition, Petitioner must first
obtain permission from the Court of Appeals to file it. Because Petitioner has not done so, this
Court lacks jurisdiction to consider the habeas petition. Accordingly, pursuant to 28 U.S.C.
§2244(b)(1)-(2), this matter is dismissed.
CONCLUSION
For the reasons stated herein, Petitioner’s objections are overruled, and the Report and
Recommendation is approved and adopted, except for the recommendation to transfer this matter
to the Third Circuit Court of Appeals. Instead, the petition for a writ of habeas corpus is
dismissed pursuant to 28 U.S.C. §2244(b)(1)-(2), as an improperly filed second or successive
habeas petition. In addition, because reasonable jurists would not debate this Court’s disposition
of Petitioner’s claims, a certificate of appealability is denied. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

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