Wise v. Rozum et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 42 38 37 . Signed by Honorable Malachy E Mannion on 10/28/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

Page 1
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Andre GALE, Petitioner
v.
John WETZEL, et al., Respondents.
Civil Action No. 1:12–CV–1315.
Sept. 27, 2012.
Andre Gale, Somerset, PA, pro se.
Edward Marsico, District Attorney's Office, Harrisburg,
PA, pro se.
Jason Eugene McMurry, Dauphin County Distict
Attorney's Office, Harrisburg, PA, for Respondents.
REPORT AND RECOMMENDATION
THOMAS M. BLEWITT, United States Magistrate Judge.
I. Background.
*1 On July 9, 2012, Petitioner Andre Gale
(“Petitioner”) filed a “Motion for Stay and Abeyance of §
2254 Petition.” (Doc. 1). The Clerk of Court docketed
Petitioner's “Motion for Stay and Abeyance” as his habeas
petition. Petitioner is currently an inmate at the State
Correctional Institute in Somerset, Pennsylvania
(“SCI–Somerset”). On July 23, 2012, Petitioner paid the
filing fee. (Doc. 4). In his “Motion for Stay and
Abeyance,” Petitioner indicated that he recently filed a
Post Conviction Relief Act (“PCRA”) Petition with the
Dauphin County Court of Common Pleas in May 2012,
and that “the time necessary for exhaustion of [his] PCRA
Petition in the state court[ ] will exceed the one-year time
limitation for timely filing the instant § 2254 [habeas]
petition.” (Doc. 1, p. 1). Petitioner stated that he raised the

following grounds in his May 2012 PCRA Petition he
filed with the Dauphin County Court: 1) his trial counsel
was ineffective for failing to raise a claim in Petitioner's
direct appeal that his constitutional right to confront his
accuser was violated when the trial court allowed the
statement of his co-Defendant Wells to be read to the jury
by the prosecutor without requiring Wells to take the
witness stand; and 2) his appellate counsel in his first
PCRA Petition collateral appeal was ineffective for failing
to raise a claim that his trial counsel was ineffective for
not appealing Wells' statement which was read to the jury.
(Doc. 1, pp. 1–2). Petitioner based his PCRA claims on
the case of Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct.
1309, 182 L.Ed.2d 272 (2012). In his “Motion for Stay
and Abeyance,” Petitioner requested that this federal court
stay and hold in abeyance the § 2254 habeas petition he
was going to file until his PCRA Petition was decided by
the state courts. Petitioner did not file a proper § 2254
habeas petition at the time he filed his “Motion for Stay
and Abeyance.”
On July 25, 2012, the Dauphin County Court issued
a Final Order pursuant to its June 1, 2012 Memorandum
and Order advising Petitioner of the court's intent to
dismiss his PRCA Petition as untimely and, dismissed
Petitioner Gale's PCRA Petition as untimely. (Doc. 9–1,
Ex. C, pp. 18–22). On August 27, 2012, Petitioner filed a
Notice of Appeal with the Pennsylvania Superior Court,
docket number 1556 MDA 2012, regarding the Dauphin
County Court's Final Order dismissing his May 2012
PCRA Petition. On September 4, 2012, the Dauphin
County Court issued a PCRA Order explaining to the
Superior Court why Petitioner's PRCA Petition was
dismissed and stating that its July 25, 2012 Order should
be affirmed. (Doc. 7, pp. 27–32). It appears that
Petitioner's Notice of Appeal with the Pennsylvania
Superior Court is still pending. (See Doc. 6, p. 7).
Since Petitioner did not file a proper § 2254 habeas
petition with this federal court, on July 26, 2012, we

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

issued an Order and directed the Clerk of Court to provide
Petitioner with a form § 2254 habeas petition and directed
Petitioner to file the proper habeas form within ten days.
(Doc. 5).
*2 On August 13, 2012, Petitioner Gale filed his Petition
for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254.
(Doc. 6). The Clerk of Court docketed Petitioner's habeas
petition as his “Amended Petition for Writ of Habeas
Corpus,” but it was actually his original habeas petition
since Petitioner's “Motion for Stay and Abeyance” was not
a proper habeas petition. Petitioner also filed a
Memorandum in support of his habeas petition with
attached copies of the aforementioned state court records
regarding his recent PCRA Petition. (Doc. 7). The instant
habeas petition, is Petitioner Gale's third petition he has
filed with this federal court. In his third habeas petition,
Petitioner is again seeking to challenge his March 1996
first degree murder and conspiracy conviction and,
sentence to life in prison without parole imposed by the
Dauphin County Court of Common Pleas.
Petitioner filed his first § 2254 habeas petition with
this Court on January 27, 2000, namely, Gale v. Sobina,
Civil No. 00–0163, M.D. Pa. FN1 (Doc. 9–1, Ex. A). On
August 21, 2000, Petitioner filed a motion to dismiss in
his case. (Civil No. 00–0163, Doc. 6). On August 22,
2000, the Court issued an Order and held that Petitioner's
§ 2254 habeas petition was withdrawn. (Civil No.
00–0163, Doc. 8). The Court further provided Petitioner
with 120 days from the date of its Order to file an
all-inclusive § 2254 habeas petition. (Civil No. 00–0163,
Doc. 8). On December 21, 2000, the Court closed the case
in Civil No. 00–0163 because Petitioner did not re-file his
all-inclusive § 2254 habeas petition. (Civil No. 00–0163,
Doc. 9).
FN1. Petitioner also filed two § 1983 civil rights
cases with this Court. They were: Manning, et al.
v. Dauphin County Prison, et al., 1:CV–96–0520
and Gale v. Dauphin County Prison, et al.,
3:CV–96–0540. Petitioner currently has only this

instant habeas petition pending with this Court.
Petitioner filed his second § 2254 habeas petition with
this Court on June 26, 2006, namely, Gale v. Rozum, Civil
No. 06–01266, M.D. Pa., claiming ineffective assistance
of counsel and actual innocence. On July 25, 2006, the
Court dismissed Petitioner's § 2254 habeas petition. (Civil
No. 06–01266, Doc. 5).FN2 The Court found that the
AEDPA statute of limitations was expired. (Id.). The
Court further found that the because Petitioner's Civil No.
06–01266 habeas petition was a successive filing, it had to
be analyzed under the guidelines of 28 U.S.C.A. §
2244(b)(2). (Id.). The Court noted that Petitioner
voluntarily withdrew his first habeas petition, Civil No.
00–0163, in 2000 and did not file an all-inclusive habeas
petition as the Court directed him to do. Therefore, the
Court closed Petitioner's case in Civil No. 00–0163. Thus,
the Court did not address the merits of Petitioner's first
habeas petition. (Id.). Petitioner's second habeas petition,
Civil No. 06–01266, was filed on June 26, 2006, which
was not within the Court's 120–day timetable specified in
Petitioner's Civil No. 00–0163case. (Id.). FN3 The Court
analyzed whether or not Petitioner's reliance on the
miscarriage of justice exception to § 2254(b)(1)(A) was
warranted. (Id.). The Court found that the miscarriage of
justice exception did not apply as Petitioner did not supply
any evidence that persuaded the Court that no juror would
have found him guilty beyond a reasonable doubt in order
to prove he was actually innocent of the crime. (Id.). Thus,
on July 25, 2006, the Court dismissed Petitioner's second
habeas petition in Civil No. 06–01266. (Id.).
FN2. See also Doc. 9–1, Ex. A, Civil No.
13–1315, M.D. Pa.
FN3. See also Doc. 9–1, Ex. A, Civil No.
13–1315, M.D. Pa.
*3 Petitioner then filed a Notice of Appeal regarding
the Court's dismissal Order in Civil No. 06–01266, with
the Third Circuit Court of Appeals, U.S. C.A. No.
06–4234 (3d Cir.). On March 22, 2007, the Third Circuit

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

construed Petitioner's Notice of Appeal as a request for a
certificate of appealability under 28 U.S.C. § 2253(c)(1).
(Doc. 13, Civil No. 06–1266, M.D. Pa.). On April 3,
2007, the Third Circuit issued an Order and denied
Petitioner's request for a certificate of appealability since
it found that Petitioner's habeas petition filed in Civil No.
06–1266, M.D. Pa. was clearly untimely and since
Petitioner made showing that he was entitled to equitable
tolling of the AEDPA statute of limitations. (Id.).FN4

collateral review. (Doc. 9, p. 4). Respondent also requests,
based on the stated reasons in his Motion to Dismiss
Petitioner's habeas petition, this court to deny as moot
Petitioner's Doc. 1 “Motion for Stay and Abeyance.”
(Doc. 9, p. 5, ¶ 20). Petitioner's response to Respondent's
Motion to Dismiss was due September 19, 2012, and to
date, Petitioner has not filed a response.

FN4. See also Doc. 9–1, Ex. B, Civil No.
13–1315, M.D. Pa.

On March 11, 1996, Petitioner was convicted by a
jury in the Dauphin County Court of Common Pleas
(“CCP”) for first degree murder and criminal conspiracy
and sentenced to life imprisonment without parole. (Doc.
6, p. 1).FN5 On June 11, 1997, the Superior Court of
Pennsylvania affirmed the judgment of sentence. (Id., p.
2). On October 28, 1997, the Supreme Court of
Pennsylvania denied Petitioner's petition for allowance of
appeal. (Doc. 9–1, Ex. C, p. 18).
FN5. See also Doc. 9–1, Ex. A, Civil No.
13–1315, M.D. Pa.

As stated, on August 13, 2012, Petitioner filed his
third petition for writ of habeas corpus with this court.
(Doc. 6, Civil No. 12–1315). Petitioner raises the
following grounds: (1) “First Post–Conviction–Counsel
[PCRA Petition appellate counsel] rendered ineffective
assistance according to the United States Constitution”;
(2) “Trial–Counsel rendered ineffective assistance
according to the United States Constitution”; (3) “The
Petitioner has the right to effective attorney”; and (3) “The
confrontation clause in the United States Constitution was
violated in trial-court.” (Doc. 6, pp. 5–9). As stated,
Petitioner also filed a Memorandum of Law in support of
his habeas petition with attached exhibits. (Doc. 7).
On September 5, 2012, Respondent Dauphin County
District Attorney (“Respondent”) filed a Motion to
Dismiss and/or File a Partial Answer with attached
Exhibits, A–C. (Doc.9). Respondent states that Petitioner's
present habeas petition should be dismissed as a
successive petition and, dismissed as not timely filed
within the AEDPA one-year statute of limitations.
Respondent also states that Petitioner does not even raise
cognizable § 2254 habeas claims since the U.S. Supreme
Court's decision in Martinez v. Ryan, does not provide
Petitioner with ability to reopen his previous habeas
petition and does not afford Petitioner with an exception
to the one-year statute of limitations of the AEDPA.
Further, Respondent states that the case of Martinez v.
Ryan was not found to apply retroactively to cases on

II. State Procedural History.

*4 On November 24, 1997, Petitioner filed a petition
for relief under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541, et seq. On August 21, 1998, the
CCP denied Petitioner's PCRA petition. (Id.). On August
24, 1999, the Superior Court of Pennsylvania affirmed the
denial of PCRA relief. (Id.).
Petitioner filed two other PCRA Petitions with the
CCP, his second Petition on March 25, 2002, and his third
Petition on October 2, 2007. (Id., p. 19). Both of these
Petitions were denied by the CCP. (Id.).
On May 17, 2012, Petitioner filed his fourth PCRA
Petition with the CCP. On July 25, 2012, the CCP
dismissed Petitioner's PCRA Petition.FN6 (See Court of
Common Pleas of Dauphin County Criminal Docket
Number: CP–22–CR–0002716–1995).FN7 On August 27,
2012, Petitioner filed an appeal with the Superior Court of
Pennsylvania. (Id.). As stated, it appears that Petitioner's
Notice of Appeal with the Pennsylvania Superior Court

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

regarding the CCP's dismissal of Petitioner's fourth PCRA
Petition is still pending. (See Doc. 6, p. 7).
FN6. See also Doc. 9–1, Ex. C, pp. 18–22, and
Doc. 7, pp. 27–32, Civil No. 13–1315, M.D. Pa.
FN7. We take judicial notice of the Pennsylvania
state court docket sheet in this matter, which are
available through Pennsylvania's Unified Judicial
Docket System docket research at
http://ujsportal.pacourts.us/, Court of Common
Pleas of Dauphin County Criminal Docket
Number: CP–22–CR–0002716–1995. See
http://ujsportal.pacourts.us.

first claim. (Id.). Petitioner did not re-file his first habeas
petition as per the Court's allowance in the dismissal
order, therefore, the Civil No. 00–0163 case was closed.
(Id.). Petitioner's second petition was filed on June 26,
2006, in his Civil No. 06–01266 case, which was not
within the Court's 2000 timetable. (Id.). This Court
analyzed whether or not Petitioner's reliance on the
miscarriage of justice exception to § 2254(b)(1)(A) was
warranted. (Id.). This Court found that the miscarriage of
justice exception did not apply as Petitioner did not supply
any evidence to persuade the Court that no juror would
have found him guilty beyond a reasonable doubt in order
to prove he was actually innocent of the crime. (Id.). Thus,
this Court dismissed Petitioner's second habeas petition in
Civil No. 06–01266 case. (Id.).

III. Discussion.
As stated, Petitioner filed his first § 2254 habeas
petition with this Court on January 27, 2000. (Civil No.
00–0163, M.D. Pa.). On August 21, 2000, Petitioner filed
a motion to dismiss his first § 2254 habeas case. (Civil No.
00–0163, Doc. 6). On August 21, 2000, this Court granted
Petitioner's motion to dismiss. (Civil No. 00–0163, Doc.
8). This Court however provided Petitioner with 120 days
from the date of dismissal to file an all-inclusive § 2254
habeas petition. (Civil No. 00–0163, Doc. 9). On
December 21, 2000, this Court closed the Civil No.
00–0163 case because Petitioner did not re-file his
all-inclusive § 2254 habeas petition. (Id.).
Petitioner filed his second § 2254 habeas petition with
this Court on June 26, 2006, claiming ineffective
assistance of counsel and actual innocence. (Civil No.
06–01266, M.D. Pa.). On July 25, 2006, this Court
dismissed Petitioner's § 2254 habeas petition. (Civil No.
06–01266, Doc. 5). This Court found that Petitioner's
AEDPA statute of limitations was expired. (Id.). This
Court further found that the because the Civil No.
06–01266 habeas petition was a successive filing, it had to
be analyzed under the guidelines of 28 U.S.C. §
2244(b)(2). (Id.). This Court noted that Petitioner
voluntarily withdrew his original petition in 2000, and
thus, this Court did not address the merits of Petitioner's

*5 Petitioner then filed a Notice of Appeal with the
Third Circuit Court of Appeals (U.S.C.A. No. 06–4234
(3d Cir.)). On April 3, 2007, the Third Circuit issued an
Order and denied Petitioner's request for a certificate of
appealability. (Doc. 13, Civil No. 06–01266).FN8
FN8. See also Doc. 9–1, p. 16, Ex. B, Civil No.
13–1315, M.D. Pa.
On August 13, 2012, Petitioner filed his instant
petition for writ of habeas corpus. (Doc. 6). As mentioned,
Petitioner raises the following grounds: (1) “First
Post–ConvictionCounsel rendered ineffective assistance
according to the United States Constitution”; (2)
“Trial–Counsel rendered ineffective assistance according
to the United States Constitution”; (3) The Petitioner has
the right to effective attorney”; and (3) “The confrontation
clause in the United States Constitution was violated in
trial-court.” (Doc. 6).
As stated, Petitioner again challenges his March 1996
(over 16 1/2 years old) conviction for first degree murder
and criminal conspiracy and, his sentence of life
imprisonment without parole. As relief in his present
habeas petition, Petitioner requests, in part, this Court
grant an “Evidentiary Hearing on the merits of each

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

claim.” (Doc. 6, p. 14).
In Louder, the Court stated:
We agree with Respondent and find that Petitioner's
third habeas petition should be dismissed as a second or
successive habeas petition because he did not obtain
permission from the Third Circuit to file a second or
successive petition and, since his present claims do not
qualify as claims that can be raised under the narrow
exceptions of a properly filed second petition. We also
agree with Respondent that Petitioner's instant habeas
petition is time barred under his one-year AEDPA statute
of limitations. (Doc. 9).
Furthermore, we also take judicial notice of this
Court's records pertaining to Petitioner's first habeas
petition under § 2254, i.e. his Civil No. 00–0163 case, and
his second habeas petition under § 2254, his Civil No.
06–01266 case. Louder v. Coleman, 2009 WL 4893193 at
*2 (W.D.Pa.). Thus, in deciding Petitioner's present
habeas petition, we take judicial notice of this Court's
records and the records of the Third Circuit. Id.
As the Louder Court stated:
This power of the court to summarily dismiss a petition,
which, considered along with items annexed thereto and
things of which judicial notice may be had, shows on its
face that the petitioner is not entitled to relief includes
the power of the court to dismiss the petition where it
discloses that it is not in compliance with AEDPA's
second or successive requirements. Mickens v.
Chamberlain, No. 2:08–CV–950, 2008 WL 4298536
(W.D.Pa., Sept. 17, 2008); Scott v. Klem, NO.
4:CV–05–1337, 2005 WL 1653165 (M.D.Pa., July 12,
2005).
Id., *3.
Since Petitioner Gale's present habeas petition was
filed after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), i.e.
April 24, 1996, the AEDPA applies to his case. Id.

*6 AEDPA greatly restricts the power of federal courts
to award relief to state prisoners who file second or
successive Section 2254 applications. Tyler v. Cain,
533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001).
In AEDPA, Congress enacted strictures on the filing of
second or successive habeas petitions in response to the
abuse of the habeas writ by prisoners. See Chambers v.
United States, 106 F.3d 472, 475 (2d Cir.1997) (“The
purpose of the gatekeeping restrictions was to prevent
abuse of the habeas writ.”). Congress provided 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).
The allocation of these gatekeeping responsibilities to
the Court of Appeals provided by Section
2244(b)(3)(A), has essentially divested the District
Courts of subject matter jurisdiction over habeas
petitions that are second or successive within the
meaning of that subsection. See, e.g., Robinson v.
Johnson, 313 F.3d 128, 140 (3d Cir.2002) (“From the
district court's perspective, it [i.e., Section
2244(b)(3)(A)'s gatekeeping assignment to the Courts of
Appeals] is an allocation of subject-matter jurisdiction
to the court of appeals.”). The gatekeeping provisions of
AEDPA provide that if the prisoner asserts a claim that
he has already presented in a previous federal habeas
petition, the claim must be dismissed by the Court of
Appeals in all cases. 28 U.S.C. § 2244(b)(1). And if the
prisoner asserts a claim that was not presented in a
previous petition, the claim must be dismissed by the
Court of Appeals unless it falls within one of two
narrow exceptions. One of these exceptions is for claims
predicated on newly discovered facts that call into
question the accuracy of a guilty verdict. §
2244(b)(2)(B). The other is for certain claims relying on
new rules of constitutional law. § 2244(b)(2)(A).

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

However, even if a habeas petitioner's second or
successive petition falls within either of these
categories, he may not simply come to the District
Court and file his second or successive petition,
rather he must seek leave of the Court of Appeals to
do so. In other words, he must convince, in the first
instance, the Court of Appeals that his second or
successive petition comes within this narrow exception
permitted by AEDPA and have the Court of Appeals
grant him leave to file such second or successive
petition. 28 U.S.C. § 2244(3)(A).FN1
FN1. Section 2244(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.” (emphasis added).
Id., *3 (Emphasis added).
As discussed above, Petitioner's first habeas petition
in case Civil No. 00–0163 was dismissed after the District
Court granted Petitioner's motion to dismiss. (Civil No.
00–0163, Doc. 8). The District Court provided Petitioner
with 120 days from the date of dismissal to file an
all-inclusive § 2254 habeas petition. (Civil No. 00–0163,
Doc. 9). On December 21, 2000, the District Court closed
the case because Petitioner did not re-file his all-inclusive
§ 2254 habeas petition. (Id.).
*7 Petitioner's second § 2254 habeas petition, Civil
No. 06–01266, included claims of ineffective assistance of
counsel and actual innocence. On July 25, 2006, the
District Court dismissed Petitioner's second § 2254 habeas
petition. (Civil No. 06–01266, Doc. 5). The District Court
found that the statute of limitations was expired. (Id.). The
Court further found that the because the petition was a
successive filing, it had to be analyzed under the
guidelines of 28 U.S.C.A. § 2244(b)(2). (Id.). The Court
noted that Petitioner voluntarily withdrew his original
petition in 2000, thus the Court did not address the merits

of his first claim. (Id.). Petitioner did not re-file the
petition as per the Court's allowance in the dismissal
order, therefore, the case was closed. (Id.). The second
petition was filed on June 26, 2006, which was well after
the time allowed by the Court in its dismissal Order issued
in Petitioner's Civil No. 00–0163 case. (Id.). The Court
analyzed whether or not Petitioner's reliance on the
miscarriage of justice exception to § 2254(b)(1)(A) was
warranted. (Id.). The Court found that the miscarriage of
justice exception did not apply as Petitioner did not supply
any new evidence that persuaded the Court that no juror
would have found him guilty beyond a reasonable doubt
in order to prove he was actually innocent of the crime.
(Id.). Therefore, the Court dismissed Petitioner's second
habeas petition. (Id.).
As the Louder Court stated:
where a prior petition was addressed on the merits and
the subsequent petition raises issues that could have
been raised in the first petition or, otherwise constitutes
an abuse of the writ, the subsequent petition is “second
or successive” within the meaning of subsection (3)(A)
and cannot be filed in the district court without
authorization from the Court of Appeals. See, e.g.,
Whab v. United States, 408 F.3d 116, 118 (2d Cir.2005)
(“for a subsequent petition to be considered ‘second or
successive,’ bringing into play AEDPA's gatekeeping
provisions, the disposition of an earlier petition must
qualify as an adjudication on the merits.”); Greene v.
White, 223 F.3d 1001, 1002 n. 1 (9th Cir.2000) (“The
present petition is not a ‘second or successive petition’
because the earlier petition, filed in 1993, was not
adjudicated on the merits.”).
Id., *4.
In Hart v. Warden, FCI Schuylkill, Civ. Docket
3:CV–09–0192, slip op. pp. 3–5 (M.D. Pa. April 30,
2009) (Conaboy, J.), the Court outlined the requirements
for dismissal of a successive petition, stating:

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

28 U.S.C. § 2244(a) and Rule 9 of the Rules Governing
Section § 2254 Cases in the United States District
Courts, as made applicable to 28 U.S.C. by Rule 1, set
forth the authority for determination as to whether
second or successive habeas corpus petitions may be
reviewed by federal district courts.
Prior to the 1996 amendments, § 2244 authorized
dismissal of a successive habeas petition “that presented
no new ground not heretofore presented and
determined.” McCleskey v. Zant, 499 U.S. 467, 483,
111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). § 2244
provided:
*8 (a) No circuit or district judge shall be required to
entertain an application for 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 writ of habeas corpus and
the petition presents no new ground not heretofore
presented and determined, and the judge or court is
satisfied that the ends of justice will not be served by
such inquiry.
The Supreme Court in McCleskey expanded § 2244 to
also preclude a person from raising a new claim in a
subsequent habeas petition that he could have raised in
his first habeas petition:
Our most recent decisions confirm that a petitioner
can abuse the writ by raising a claim in a subsequent
petition that he could have raised in his first,
regardless of whether the failure to raise it earlier
stemmed from a deliberate choice.
McCleskey, 499 U.S. at 489.

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 writ of habeas corpus,
except as provided in section § 2255.
Hart v. Warden, FCI Schuylkill, Civ. Docket No.
3:09–CV–0192 (M.D. Pa. April 30, 2009) (Conaboy, J.);
Jennings v. BOP, 2009 WL 1181221, *3 (M.D.Pa.).
In his third § 2254 habeas petition, Civil No.
12–1315, Petitioner again challenges his March 1996
conviction for first degree murder and criminal conspiracy
and, his sentence of life imprisonment. Petitioner again
claims ineffective assistance of counsel: (1) “First
Post–Conviction–Counsel rendered ineffective assistance
according to the United States Constitution”; (2)
“Trial–Counsel rendered ineffective assistance according
to the United States Constitution”; (3) The Petitioner has
the right to effective attorney”; and (3) “The confrontation
clause in the United States Constitution was violated in
trial-court.” (Doc. 6).
Petitioner does not offer any new evidence for the
court to consider in his third habeas petition. (Doc. 1, 6).
Furthermore, Petitioner does not offer any explanation as
to why his habeas petition was not filed within the time
allowed by the District Court in his first habeas Petition,
Civil No. 00–0163. (Id ). Instead, Petitioner now contends
in his Memorandum (Doc. 7) that the case of Martinez v.
Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272
(2012), allows him habeas relief for his procedurally
defaulted claim by showing cause for the default and
prejudice and a violation of federal law. We disagree with
Petitioner and agree with Respondent that Petitioner's
reliance on Martinez v. Ryan is misplaced. (Doc. 9, p. 4).

In relevant part, section § 2244(a) now provides:

*9 In Boyd v. Rozum,, the Court articulated:

No Circuit or district judge shall be required to

[I]n Martinez, the United States Supreme Court held

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 8
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

that inadequate assistance by PCRA counsel may
establish “cause” for a procedural default if the PCRA
counsel was ineffective under the standards
enunciated in the oft-cited Strickland case. Strickland
v. Washington, 466 U.S. 668, 104 S.Ct., 2052, 80
L.Ed.2d 674 (1983). However, this is only applicable
to situations where PCRA counsel failed to raise
issues of trial counsel's alleged ineffectiveness, and
thereby procedurally defaulted the claims on federal
habeas review.

“Martinez does not support a finding of extraordinary
circumstances.” Id., *4. We agree with this conclusion of
the Vogt v. Coleman Court.
We also find as the Court in Vogt v. Coleman found,
that “there is nothing in Martinez that amounts to a change
in the law that is applicable to Petitioner's [Vogt's]
situation” since “[t]he Court's consideration of Petitioner's
[Vogt's] habeas petition was limited to the threshold issue
of timeliness.” Id. The Court in Vogt v. Coleman stated as
follows:

2012 WL 3595301 *2 (W.D.Pa. August 21, 2012).
Furthermore, In Vogt v. Coleman, the Court stated:
Martinez did not provide that post-conviction
counsel's ineffectiveness could establish an exception
to or equitable tolling of AEDPA's one-year statute of
limitations for filing a federal habeas corpus petition.
2012 WL 2930871 *4 (W.D.Pa. July 18, 2012)
(citations omitted).
Respondent also cites to Vogt v. Coleman for the
proposition that Martinez is not a proper basis to reopen
a habeas petition” and Respondent states that Martinez
was not held to be retroactive to cases on collateral
review. (Doc. 9, p. 4). We agree with the Court in Vogt v.
Coleman and find that Martinez is not a basis to allow
Petitioner Gale to proceed with his third habeas petition.
As the Court pointed out in the recent case of Vogt v.
Coleman, Petitioner Vogt's motion with the Third Circuit
to file a second or successive habeas petition, under §
2244(b), based on the Martinez case was denied on May
31, 2012. Id., *2. The Court in Vogt v. Coleman, agreed
with the Fifth Circuit Court of Appeals in Adams v.
Thaler, 679 F.3d 312 (5th Cir.2012), that “the Martinez
decision is simply a change in decisional law and is ‘not
the kind of extraordinary circumstance that warrants relief
under Rule 60(b)(6)’....” The Court in Vogt v. Coleman
cited to other district courts which have held consistent
with the Adams v. Thaler case, and concluded that

Martinez held that “[i]nadequate assistance of counsel
at initial-review collateral proceedings may establish
cause for a prisoner's procedural default of a claim of
ineffective assistance at trial.” Martinez, 132 S.Ct. at
1315. Martinez qualified the Supreme Court's holding
in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991) and recognized a
“narrow exception” to what was settled law that
post-conviction counsel's ineffectiveness was irrelevant
to establishing cause for procedural default. However,
Martinez did not provide that post-conviction counsel's
ineffectiveness could establish an exception to or
equitable tolling of AEDPA's one-year statute of
limitations for filing a federal habeas corpus petition.
See Kingsberry v. Maryland, No. AW12–1556, 2012
U.S. Dist. LEXIS 77746, at *2–3, 2012 WL 2031991
(D.Md. June 4, 2012) (“Martinez did not address
equitable tolling in the context of ineffective assistance
of counsel”); Heard v. Hobbs, No. 5:12CV00091, 2012
U.S. Dist. LEXIS 68344, at *1–2 (E.D.Ark. May 16,
2012) (citing court's ruling in petitioner's related case
finding that “the holding in Martinez in no way relates
to timeliness of a federal habeas petition”); Heard v.
Hobbs, No. 5:11 CV000218, 2012 U.S. Dist. LEXIS
67541, at * 1–2 (E.D.Ark. May 15, 2012) (same). As
such, Martinez provides no relief to Petitioner.
*10 Id.
In our case, Petitioner Gale's counsel raised issues of

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 9
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
(Cite as: 2012 WL 5467540 (M.D.Pa.))

ineffective assistance of counsel claims in the Petitioner's
first PCRA Petition which were denied by the CCP on
September 15, 1998. (See 3:06–CV–1266, M.D. Pa., Doc.
5). Petitioner has not offered any explanation as to why he
did not timely file his first § 2254 habeas petition within
the time allowed by this Court. Morever, this Court has
already dismissed Petitioner Gale's second habeas petition
and found that his AEDPA statute of limitations was
expired. (Id.). This Court further found that the because
the Petitioner second habeas petition was a successive
filing, it had to be analyzed under the guidelines of 28
U.S.C.A. § 2244(b)(2). (Id.). The second petition was
filed on June 26, 2006, which clearly was not within the
Court's 2000 timetable. (Id.). This Court analyzed whether
or not Petitioner's reliance on the miscarriage of justice
exception to § 2254(b)(1)(A) in his second habeas petition
was warranted and ultimately dismissed Petitioner's habeas
petition. (Id.). Further, as mentioned, on March 22, 2007,
the Third Circuit issued an Order and denied Petitioner's
request for a certificate of appealability stating that his
second habeas petition was untimely filed and that
Petitioner did not make a showing sufficient to warrant
equitable tolling. (Doc. 13, Civil No. 06–1266 case).
Petitioner's recourse was to file another § 2244 application
with the Third Circuit Court. Petitioner simply filed the
present habeas petition on August 13, 2012, Doc. 6, well
beyond the AEDPA statute of limitations, and which is
clearly a second or successive petition, without receiving
required permission from the Third Circuit to do so.

Therefore, we will recommend that the Court grant
Respondent's Motion to Dismiss (Doc. 9) and dismiss
Petitioner's instant § 2254 habeas petition as untimely, and
as a second or successive petition because this Court lacks
subject matter jurisdiction over it. See Louder v. Coleman,
2009 WL 4893193, *5. We will also recommend that the
Court deny Petitioner's “Motion for Stay and Abeyance”
(Doc. 1) as moot.
IV. Recommendation.
For the reasons set forth above, we respectfully
recommend that the Court grant Respondent's Motion to
Dismiss (Doc.9) and dismiss Petitioner Gale's third § 2254
Habeas Petition (Doc.6) as untimely and as a second or
successive § 2254 petition. We further recommend that
Petitioner's “Motion for Stay and Abeyance” be denied as
moot. (Doc.1).
M.D.Pa.,2012.
Gale v. Wetzel
Not Reported in F.Supp.2d, 2012 WL 5467540 (M.D.Pa.)
END OF DOCUMENT

We agree with Respondent that Petitioner fails to
show that his instant claims fall within any of the statutory
exceptions outlined above, and there is no indication that
Petitioner was granted leave to file a second or successive
petition by the United States Court of Appeals for the
Third Circuit. Further, even if Petitioner Gale did file a
motion with the Third Circuit to file a second or
successive habeas petition, as indicated above, in the case
of Vogt v. Coleman, Petitioner Vogt's motion with the
Third Circuit to file a second or successive habeas
petition, under § 2244(b), based on the Martinez case was
denied.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.