Lee v. Lane et al

Filing 28

MEMORANDUM re REPORT AND RECOMMENDATIONS 27 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 7/25/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GREG LEE,
Petitioner,
v.
J. LANE, et al.,
Respondents.

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Civil No. 1:15-cv-2195

Judge Sylvia H. Rambo
Magistrate Judge Mehalchick

MEMORANDUM
Before the court is a report and recommendation of the magistrate judge
in which she recommends that the amended habeas petition filed under the
captioned number be transferred to the Third Circuit Court of Appeals pursuant to
28 U.S.C. § 1631 for their consideration as an application to file a second or
successive petition. For the reasons set forth below, the recommendation will be
adopted.
On October 7, 2011, Lee filed a habeas petition pursuant to Title 28
U.S.C. § 2254 and assigned case number 1:11-cv-1909. He was advised that
proceeding on the merits of the petition as filed would result in a limitation of his
right to file another § 2254 petition in the future. (1:11-cv-1909, Doc. 5.) Lee
responded that he wished to proceed on the merits of his initial petition. (Id. at
Doc. 8.) By order dated March 7, 2013, Lee’s initial petition was denied as the
grounds for relief were either procedurally defaulted or lacking in merit. Lee v.

Harlow, Civ. No. 1:11-cv-1909, 2013 WL 866870 (M.D. Pa. Mar. 7, 2013). This
court declined to issue a certificate of appealability. Id. at *4.
Lee initiated the captioned petition on November 17, 2015 and an
amended petition was filed on February 17, 2016. (Doc. 6.) In the instant petition,
Lee challenges his conviction in the York County Court of Common Pleas of first
degree murder, aggravated assault, attempted homicide, and criminal conspiracy.
He alleges that he has “newly discovered evidence” which would exonerate him
from his conviction. This newly discovered evidence consists of a statement given
by an inmate to police on March 1, 2013 in which that inmate claimed that one of
the Commonwealth’s witnesses at Lee’s trial admitted to being the shooter in the
homicide for which Lee was convicted.1
The magistrate judge opines that because Lee previously filed a § 2254
petition (Civ. No. 1:11-cv-1909), which was denied and had not obtained
permission from the Court of Appeals for the Third Circuit to file a second or
successive petition, the court is without jurisdiction to entertain the instant petition.
The magistrate judge recommends that this matter be transferred to the Third
Circuit pursuant to 28 U.S.C. § 1621 for consideration as an application to file a
second or successive petition.

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Lee filed an amended PCRA petition in the York County Court of Common Pleas in May 2013,
which was denied on March 5, 2014. Commonwealth v. Lee, Docket No. CP-67-cr-00003322004 (York Cnty. C.C.P.)
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The recommendation will be adopted.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: July 25, 2017

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