Powell v. Commonwealth of PA

Filing 4

ORDER DISMISSING petition w/out prejudice to ptnr to seek approval from the court of appeals pursuant to 28 USC 2244(b)(3)(A) to file a 2nd or successive habeas petition. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 11/17/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HOWARD OMAR POWELL,
Petitioner
v.
COMMONWEALTH OF PA,
PA ATTORNEY GENERAL,
Respondents

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CIVIL NO. 1:15-CV-1938
(Chief Judge Conner)

ORDER
AND NOW, this 17th day of November, 2015, upon consideration of the
petition for writ of habeas corpus (Doc. 1) filed by petitioner Howard Omar Powell,
challenging his 2002 Court of Common Pleas of Schuylkill County conviction of
attempted first degree murder and related offenses, Commonwealth v. Powell, 806
A.2d 464 (Pa. Super. 2002), and it appearing that the court previously dismissed
Powell’s first § 2254 petition as untimely, Powell v. Tennis, et al., No. 1:06-CV-57,
2006 WL 1722390 (M.D. Pa. June 20, 2006), and that petitioner’s request for a
certificate of appealability in that matter was denied by the United States Court of
Appeals for the Third Circuit, Powell v. Tennis, et al., No. 06-3623 (3d Cir. 2007), and
it further appearing that this filing constitutes a second or successive petition for
writ of habeas corpus subject to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which 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 Scott v. Klem, No. 4:CV-05-1337, 2005 WL 1653165, *2
(M.D. Pa. July 12, 2005) (citing 18 U.S.C. § 2244(b)); Wilson v. York Cnty. Common
Pleas Ct., 2005 WL 1229719, at *3 (M.D. Pa. May 24, 2005) (citing Robinson v.
Johnson, 313 F.3d 128, 139 (3d Cir. 2002)) (recognizing that “[t]he Third Circuit
clearly held that, absent an order from the circuit court granting leave to a
petitioner, a district court does not have subject matter jurisdiction to entertain any
petition for writ of habeas corpus that it deems to be a second or successive
petition”); Stokes v. Gehr, 399 Fed. App’x 697, 700 n. 2 (3d Cir. 2010) (a motion
under § 2254 would be “second or successive” when the petitioner’s first such
petition is dismissed as untimely), and it being evident that petitioner has failed to
comply with Section 2244(b)(3)(A), it is hereby ORDERED that the petition is
DISMISSED without prejudice to petitioner to seek approval from the court of
appeals pursuant to 28 U.S.C. § 2244(b)(3)(A) to file a second or successive habeas
petition.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania