Bartlett v. Kerestes et al

Filing 21

MEMORANDUM (Order to follow as separate docket entry)Based upon the reasoning set forth by the Court of Appeals September 11, 2009 decision, the fact that Petitioners subsequent second PCRA action was determined to be untimely by the Superior Court, and the failure of Petitioners latest action to demonstrate cause and prejudice or that a fundamental miscarriage of justice would occur if this matter were not to be addressed on the merits, it is apparent that the Respondents request for dismissal on the basis of procedural default is likewise meritorious. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 12/14/15. (cc)

IN THE UNITED STATES DISTRICT COURT
fOR THE MIDDLE DISTRIC T Of PENNSYLVANIA
WILLIAM CLIffORD BARTLETT ,
Petitioner

v.

CIVIL NO . 3 : CV -1 4 - 845
(Judge Conaboy)

JOHN KER ESTES , ET AL .,
Respondents

MEMORANDUM

Background

William Clifford Bartl ett (Petitioner) , an inmate presently
confined at the Mahanoy State Correctional Ins titution , frackvill e ,
Pennsy l vania (SCI - Mahanoy),

filed the above captioned habeas corpus

action pursuant to 28 U. S.C . § 2254 .

A second habeas corpus action

by Petiti oner , Bartlett v . Kerestes , et al. , Civil No . 3 : CV-14 - 859 ,
was subsequently consolidated int o this matter pursuant to federal
Rule of Civil Procedure 42(a).

Warden Kerestes of SCI-Mahanoy was

previous l y deemed the sole respondent in this matter.
Petitioner was or iginally sentenced to serve a life sentence
for a 1971 homicide conviction.

following a 1985 j ury trial in the

Hunt ingd on County , Pennsylvania Court of Common Ple as he was
convicted of assault by a life prisoner and aggravated assault .
The charges stemmed from an assault o n two state correctio nal
officers during which one of the victims suffered a fractured
skul l.

Following this latest convic tion,

Bartlett was sentenced to

an aggregate term of lif e imprisonment to run consecut i ve to the

1

term of life imprisonment which he was already serving.
Both of the consolidated petitions s
legality of Bart

larly challenge

t's 1985 conviction and the petitions t

e

appear to be almost exact copies of one another
Petitioner p

ously filed a § 2254 action with this Court,

~~~~=-~~~~====,

id. at

Civil No. 3:CV-09-430.

~

11.

earlier petition rai

ten (10) arguments for relief.

Memorandum and

s

ed July 20, 2009, Seven (7) of those c

r

By

were dismissed for failure to exhaust state court remedies.
remaining three (3) cl

were addressed on their merits and

denied.
Petitioner then returned to state court and filed a second
PCRA action.

Following appointment of counsel, submission of an

amended PCRA petition

an evidentia

hearing, the second PCRA

action was denied on August 26, 2013.
was affirmed by the

rior Court on t

PCRA petition was unt

nial of PCRA relief

ly filed.

The pending consol

sis that the second

ed petitions see

relief with respect

arguments which were

to

same habeas

be

this Court and found to be unexhausted and which were

thereafter found to be

ously presented

untimely raised in the second PCRA

tition.
Respondent has filed a partial answer to the petition which
asserts in part that since Bartlett's prior § 2254 action was ruled
by this Court this action should be dismis

2

as a second or

petition.

ized habeas co

successive un aut

dismissal, namely that his

also raises additional arguments
matter is unt

ly and that the cia

procedurally defaulted.

Respondent

See id. at

for relief
~~

ve been

26-28.

Discussion
Second or Successive

itially contends that his matter is subject

The Respondent
to

smiss because Bartlett has not obtained authorization from t

Third Circuit Court of Appeals
successive petition.
Bartlett i
Court.

r leave to file a second or

Doc. IS-I, p. 6.

iated a prior

s corpus action with this
ously denied federal habeas

Review of Petitioner's

ition establis

s that it challenged the same conviction which

is the subject of the pending cons
A preliminary Order issued by
as proceeding c

idated petitions.
s Court in Bartlett's initial

ly advised him that he could have his

petition ruled upon as filed but in so doing wou
to file a second or successive petit
Court of Appeals.

lose his ability

absent certification by the

Bartlett thereafter elected in

ting to

ed with his action as filed.
As previously discussed, the initial § 2254 petition filed by
Bartlett contained

h exhausted and unexhausted cia

While

three exhausted cia

were addressed on their merits

denied,

t

e unexhausted arguments were

ssed on that

sis alone.

united States Court of Appeals denied Petitioner's request for

3

a certificate of appealabil

y on September 11, 2009.

28 U.S.C.§ 2244 (a) and Rule 9(b)1 of t
Section 2254 Cases
foIl.

§

2254

the

(1977), set

Rules Governing

States District Courts, 28 U.S.C.
rth the pertinent authority for

determination as to whether second or successive habeas corpus
ewed by federal district courts. See

petitions may be

Warden, FCI-Allenwood, 2009 WL 326010 *1

(3d Cir. Oct. 13, 2009)

2244(a) bars second or successive challenges to the
detention including

§

2241

t

ions whi

chall

(§

gality of
the execution

of a federal sentence).
499 U.S.

The Supreme Court in
(1991) expanded
cIa

in a s

§

2244 to also preclude a person

467,

483

raising a new

equent habeas petition that he could have raised in

his first habeas pet

ion:

Our most recent decisions confirm that a
itioner can
abuse the writ by raising a cIa
in a subsequent
petition
he
have raised in his first,
regardless of whe
r the failure to raise it earlier
stemmed from a deliberate choice.
McCleskey, 499 U.S. at 489.
The pending consolidated habeas petitions are second or
successive because

challenge the 1

lity of \\

imposed by the same judgment of a state court."

same custody

Burton v. Stewart,

Rule 9(b) of the Habeas Corpus Rules provides:
A second or success
petition may be di
ssed if the
judge fi
that it fails to allege new or different grounds for
reI f and the prior determination was on the merits, or, if new
and
fferent grounds are alleged, the judge finds that t
failure
of petitioner to assert those grounds in a
r petition
constituted an abuse of the writ.
4

549 U.S. 147, 153 (2007).
arguments

though the pending matter asserts

ch were previously di

ss as being unexhausted,

Bartlett must still seek authorization from the Court of Appeals
for leave to file a second or successive petition.
Court noted that inmates who file mixed

the

In

itions in federal dist

habeas

unexhaust

two options.

action, return to state court to

rst, they may withdraw
exhaust

ct court

claims and then return to federal court

ly exhausted petition, which is not deemed to be a second

with a

id. at 154.

or successive petition.
proceed

Alternat

ly, they may

only the exhausted claims but risk subjecting later

petition to rigorous procedural obstacles.

id.

Court

added that a habeas applicant such as Bartlett who proceeds with
the later option is s

ect to the second or successive

isions

of § 2244.
As discussed in Jones v. Coleman, Civ. No. 10-7429, *3 2011 WL
6955712 *(E.D. Pa. Nov. 30, 2011) when a petitioner has p
fil

a habeas

any subs

ition "upon which he
federal

ously

ained some merits review"

s corpus filing is a second or
must first obtain authorization

successive one for which he or s
from the Court of Appeals.

As was the situation in Jones, since Bartlett obtained some
merits review of his initially filed habeas corpus petition, his
pending consolidated petitions are s

or successive.

no indication that Petitioner has been granted

5

There is

to file a

tition by

second or successive habeas corpus

United States

Court of Appeals for the Third

rcuit.

standards announced in

and the requirements set forth

§

Consequently, under the

2244 (a), Bartlett's pending case is a second or successive

petition which cannot be entertained by this Court.
Procedural Default

Respondent alternatively argues that Bartlett's

aims are

and should not be entertained on t

procedurally defau

basis.

See Doc. 15-1, p. 10.
The Unit
stat

States Court of Appeals

that "[U]nder 28 U.S.C.

§

the Third Circuit has

22S4(c), such a petitioner 'shall

not be deemed to have exhausted the remedies available in the
has the

courts of the State ... if

ght

State to raise, by any available procedure,
presented."

Wenaer v. Frank, 266 F.

the law of the
question

218, 223-24

"A state prisoner is generally barred from obta

(3d Cir. 2001).

ing federal habeas

relief unless the prisoner has properly presented his or her claims
through one 'complete round of the State's established
review process.'"

~~~~~~~~r

(internal citations omi

llate

548 U.S. 81, 92 (2006)

)i O'Sullivan v. Boerckel, 526 U.S. 838,

844-45 (1999) (while exhaustion does not require state prisoners to
invoke extraordinary remedies, the state courts must be afforded
one full opportuni

to resolve any constitutional issues via

completion of the State's es
The

lished appellate

ted States Supreme Court in O'Sullivan
6

ew process)
ined, that state

prisoners must "file petitions for discretionary review when that
review is part of the ordinary appellate review procedure in the
State."

Id. at 847.

The Supreme Court added that, In determining

whether a state prisoner has preserved an issue for presentation in
a federal habeas petition, it must be determined not only whether a
prisoner has exhausted his state remedies, but also whether he has
properly exhausted those remedies, i.e., whether he has fairly
presented his claims to the state courts.

See id. at 848.

Fair presentation requires that the "substantial equivalent"
of both the legal theory and the facts supporting the federal claim
are submitted to the state courts, and the same method of legal
analysis applied in the federal courts must be available to the
state courts.

Evans v. Court of Common Pleas,

959 F. 2d 1227, 1230

(3d Cir. 1992); Lambert v. Blackwell, 134 F.3d 506, 513
1997).

(3d Cir.

Moreover, to satisfy exhaustion, the state court must be

put on notice that a federal claim is being asserted.
Larkins, 251 F.3d 408,

413 (3d Cir. 2001).

Keller v.

The exhaustion

requirement is satisfied if the petitioner's claims are presented
through a collateral proceeding, such as a petition under the PCRA,
and it is not necessary to present federal claims to state courts
both on direct appeal and in a PCRA proceeding.

Evans,

959 F.2d at

1230.
When a claim has not been fairly presented to the state courts
but further state-court review is clearly foreclosed under state
law, exhaustion is excused on the ground of futility.

7

See Lines v.

Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Toulson v. Beyer,
F.2d 984, 987-88

(3d

r. 1993).

defaulted, not unexhausted.

987

Such a claim is procedurally

A federal habeas court cannot review a

procedurally defaulted claim, "if the decision of [the state] court
rests on a state law ground that is independent of
question and adequate to support the judgment."
558 U.S. 53, 55 (2009).

federal

Beard v. Kindle,

Procedural default can only be excused if

a petitioner can show "cause" and "prejudice" or that a
"fundamental miscarriage of justice" would result.
==~====,

Edwards v.

529 U.S. 446, 451 (2000).

As noted earlier, the claims presently raised before this
Court were included in Bartlett's prior unsuccessful habeas
petition.

The United States Court of Appeals in denying

Petitioner's request for a certificate of appealability with
respect to t

denial of his init

1 federal habeas action on

September 11, 2009, noted that "[m]ost of Appellant's claims are
unexhaus

and procedurally

faulted.

Appellant has not

demonstrated cause and prejudice or a fundamental miscarriage of
justice to excuse the default."
Based upon the reasoning set forth by the Court of Appeals
September 11, 2009 decision, the fact that Petitioner's subsequent
second PCRA action was determined to be untimely by the Superior
Court, and the failure of Petitioner's latest action to demonstrate
cause and prejudice or that a fundament

miscarriage of justice

would occur if this matter were not to be addressed on the merits,

8

it is apparent that the Respondent's request for
basis of procedural default is likewise merito

smissal on the
ous.

An

appropriate Order will enter.

RICHARD P.

United States District Judge

DATED: DECEMBER

FILED

SCRANTOI\J
OF C 1 ,1 2015
?(;R:

c-tc
DEPUTY CLERK

It also appears that the Respondent's third argument that
this matter is subject to dismissal as being untimely under the one
year limitations period established by 28 U.S.C. § 2244(d) likewise
has merit.
9