JOHNSON v. WINGARD et al
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WARDEN WINGARD, THE
DISTRICT ATTORNEY OF THE
COUNTY OF DAUPHIN, PA
STATE ATTORNEY GENERAL,
Hon. John E. Jones III
July 18, 2017
Robert Johnson (“Johnson”), a Pennsylvania state inmate, initially filed the
instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Eastern District of Pennsylvania on November
23, 2016. (Doc. 1). The petition was transferred to this Court on January 11,
2017, pursuant to 28 U.S.C. §2241(d). (Docs. 3, 6).
Following review of the petition, Respondents’ response and exhibits (Doc.
17), and Petitioner’s traverse (Doc. 18), it is concluded that this Court lacks
jurisdiction over the petition. Consequently, the petition will be dismissed.
On January 17, 2003, and August 8, 2003, two separate juries convicted
Johnson of three counts of Criminal Attempt Homicide, three counts of
Aggravated assault, Possession with Intent to Deliver a Controlled Substance,
Carrying a Firearm Without a License, Theft by Unlawful Taking, five counts of
Recklessly Endangering Another Person, two counts of Flight to Avoid
Apprehension, two counts of Resisting Arrest, Possessing Instruments of Crime,
and False Reports, in the Court of Common Pleas of Dauphin County,
Pennsylvania, Criminal docket numbers “0654-2002, 0655-2002.”1 (Doc. 1, p. 1;
Doc. 17, pp. 1, 2). He challenges these convictions and sentence in his present §
This Court previously entertained a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, filed by Johnson in 2007, challenging the same
convictions and sentence he seeks to challenge in his present petition. Johnson v.
Shaw, M.D.Pa. No. 4:07-cv-0369. A lengthy Memorandum and Order issued
denying that petition, in toto, on the grounds that Johnson’s properly exhausted
claims were meritless and the remaining claims were unexhausted and
Respondents indicate that “[a]t the conclusion of Johnson’s January 2003 trial, the jury
convicted Johnson of ten counts and acquitted him of six counts. The jury deadlocked regarding
the remaining counts and a mistrial was declared. The Commonwealth re-tried Johnson on the
remaining counts in August 2003.” (Doc. 17, p. 2, n. 1).
procedurally defaulted. Johnson v. Shaw, No. 4:07-cv-0369, 2011 WL1085781
(M.D.Pa. March 2011). A Certificate of Appealability was denied. Id.
Respondents seek dismissal of the present petition based on Johnson’s
failure to obtain authorization from the United States Court of Appeals for the
Third Circuit to file a second or successive petition.2 (Doc. 17, p.7).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
establishes a stringent set of procedures that a prisoner “in custody pursuant to the
judgment of a State court,” must follow if he wishes to file a “second or
successive” habeas corpus application challenging that custody. 28 U.S.C. §§
2245(a), 2244(b)(1), (2). Before filing the application in the district court, a
prisoner “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). “A
three-judge panel of the court of appeals may authorize the filing of the second or
successive application only if it presents a claim not previously raised that satisfies
one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v.
Crosby, 545 U.S. 524, 529-530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); see also
Felker v. Turpin, 518 U.S. 651, 656-657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827
Respondents alternatively seek dismissal of the petition as untimely and “procedurally
defaulted and/or meritless.” (Doc. 17, p. 17).
(1996).” Burton v. Stewart, 549 U.S. 147, 153 (2007). If a petitioner erroneously
files a second or successive habeas petition in a district court without first
obtaining permission from the 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.” Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002).
As noted supra, in a prior application for writ of habeas corpus, this Court
passed on the legality of the very convictions and sentence Johnson seeks to
challenge in his present petition. As a result, under the AEDPA, he is required to
receive authorization from the Court of Appeals before pursing his second
challenge. The record is clear that Petitioner has not obtained leave from the Court
of Appeals for the Third Circuit prior to filing the present petition. Because he did
not do so, this Court is without jurisdiction to entertain it. See Burton v. Stewart,
549 U.S. 147, 153 (2007) (where a state prisoner filed a second or successive
habeas petition, and “did not seek or obtain authorization to file in the District
Court, the District Court never had jurisdiction to consider it in the first place.”).
Based on the foregoing, the petition will be dismissed pursuant to 28 U.S.C.
§ 2244(b)(3) for lack of jurisdiction.
An appropriate Order will issue.
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