SIERRA v. KANE et al
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 12/7/17. (ep)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KATHLEEN KANE, et al.,
CIVIL ACTION NO. 3:CV-17-1584
Antonio Sierra, a Pennsylvania state inmate proceeding pro se and in forma
pauperis, 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 Western District of
Pennsylvania on January 3, 2017. (ECF No. 1.) The petition was transferred on
August 3, 2017, pursuant to 28 U.S.C. § 2241(d). (ECF No. 9.)
Named as Respondents are former Pennsylvania Attorney General Kathleen
Kane and, the former Superintendent of the Albion State Correctional Institution
(SCI-Albion), Nancy Giroux.
Mr. Sierra is housed at SCI-Albion in Albion,
Pennsylvania.1 In his petition, Mr. Sierra challenges his 1998 state sentence in the
Lebanon County Court of Common Pleas.
Preliminary review of the petition has been undertaken, see R. GOVERNING §
2254 CASES R. 4,2 and for the reasons that follow, the petition will be dismissed as a
successive petition filed without authorization from the United States Court of
Appeals for the Third Circuit as required by 28 U.S.C. § 2244(b).
On September 11, 1998, following a jury trial in the Lebanon County Court of
Common Pleas, Mr. Sierra and a co-defendant were found guilty of the following
offenses: criminal attempt to commit criminal homicide (three counts) graded in the
third degree; aggravated assault (six counts); reckless endangerment (three counts),
unlawful restraint (three counts); arson (three counts), theft (three counts), attempted
theft (three counts), robbery (eight counts), and criminal conspiracy (one count).
See Commonwealth v. Sierra, CP-38-CR-1239-1997 (Pa. Ct. Com. Pl. Lebanon
Cty.)3 Mr. Sierra was sentenced to an aggregate term of twenty (20) to sixty (60)
The only properly named respondent in a federal habeas corpus action is the
applicant’s custodial official.
See 28 U.S.C. § 2242.
Superintendent is Petitioner’s custodial official for purposes of § 2242. Michael Clark is the
current Superintendent of SCI-Albion.
Rule 4 provides “[i]f it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” See R. GOVERNING § 2254 CASES R. 4.
The Court takes judicial notice of Mr. Sierra’s criminal and appellate docket sheets
available via Pennsylvania’s Unified Judicial Docket System, docket research at:
On November 18, 1998, his post-sentence motions were
Mr. Sierra filed a direct appeal to the Superior Court of Pennsylvania. See
Commonwealth v. Sierra, 111 MDA 1999 (Pa. Super. Ct.).
Petitioner filed a motion under the Pennsylvania Post Conviction Relief Act (PCRA),
42 PA. CONS. STAT. § 9541 et seq., which was denied based on the status of his
direct appeal. On October 13, 1999, the Superior Court dismissed Mr. Sierra’s direct
appeal due to his failure to file a brief.
On February 16, 2000, Petitioner filed a second PCRA petition. On May 12,
2000, the trial court granted Mr. Sierra leave to file an appeal nunc pro tunc. On May
2, 2001, the Superior Court affirmed Petitioner’s conviction and sentence.
Commonwealth v. Sierra, 1409 MDA 2000 (Pa. Super. Ct.). Petitioner did not file an
appeal to the Pennsylvania Supreme Court.
Mr. Sierra did not file any further pleadings until 2004 when he filed a petition
to vacate. On March 23, 2004, the sentencing court summarily denied the petition.
Mr. Sierra then filed an appeal with the Superior Court of Pennsylvania.
Commonwealth v. Sierra, 593 MDA 2004 (Pa. Super. Ct.).
The Superior court
denied relief on October 7, 2004, and the Pennsylvania Supreme Court denied
Petitioner’s request for allowance of appeal on April 19, 2005.
On September 12, 2005 Mr. Sierra filed a petition for writ of habeas corpus
(first petition) in the United States District Court for the Eastern District of
Pennsylvania. The matter was transferred to this Court on March 23, 2006. See
Sierra v. Diguglielmo, Civ. No. 3:CV-06-0604 (M.D. Pa.).
On July 18, 2006,
following a review of Mr. Sierra’s petition and Respondents’ response, the Petition
was dismissed on the basis that it was untimely. By order dated January 25, 2007,
the United States Court of Appeals for the Third Circuit denied Mr. Sierra’s request
for a certificate of appealability. See Sierra v. Diguglielmo, C.A. No. 06-3750 (3d
Cir., Jan. 25, 2007).
On January 3, 2017, Mr. Sierra filed the present petition for writ of habeas
corpus (second petition) with the United States District Court for the Western District
The Western District directed Mr. Sierra to file an amended
habeas petition challenging either his judgment sentence imposed by the Court of
Common Pleas of Erie County or Lebanon County, but not both in the same petition.
(ECF No. 5.) Mr. Sierra filed an amended petition on February 16, 2017. (ECF No.
The Western District administratively closed the case advised Petition that
should he file a proper Petition, the case would be reopened. (ECF No. 7.) On
August 2, 2017, Mr. Sierra filed a second amended habeas petition (ECF No. 8)
challenging his Lebanon County sentence.
The Western District promptly
transferred the matter to this Court pursuant to 28 U.S.C. § 2241(d). (ECF No. 9.)
Shortly thereafter Mr. Sierra filed a document entitled “Motion of Petitioner,”
(ECF No. 11) asking the Western District to process his second amended habeas
petition and over three hundred and thirty pages of supporting exhibits.
Petitioner did not file a brief in support of his motion.
In his second amended habeas petition, Mr. Sierra contends that “no
judgment of conviction [from the Lebanon County Court of Common Pleas] exists,
and while restrained liberty of Sierra is apparent, whatever so be, all this from its
inception is without authority, void and reference to the same as it is anything flowing
from the 1998 Jury verdict to this present petition does not serve to give the illegality
any validation and is a nullity and void.” (ECF No. 8, p. 2.) He challenges the
legality of his conviction and sentence.
In addition, Mr. Sierra concedes that in 2006 he filed a prior § 2254 petition
challenging his Lebanon County conviction, and that that petition was denied as
untimely. He also acknowledges that the Third Circuit Court of Appeals denied his
request for a certificate of appealability when he appealed that decision. (Id., p. 9.)
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes stringent
limits on a prisoner’s ability to file a second or successive application for writ of
habeas corpus. 28 U.S.C. §§ 2254(a), 2244(b)(1), (2); Tyler v. Cain, 533 U.S. 656,
121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Specifically, 28 U.S.C. § 2244(b)(3)(A)
requires a petitioner to “move in the appropriate court of appeals for an order
authorizing the district court to consider the application,” before he may file a second
or successive petition with the district court. Rule 9 of the rules governing § 2254
proceedings likewise requires that “[b]efore presenting a second or successive
petition, the petitioner must obtain an order from the appropriate court of appeals
authorizing the district court to consider the petition.” Absent authorization from the
appropriate court of appeals, in this case the United States Court of Appeals for the
Third Circuit, this Court lacks jurisdiction over a second or successive habeas
petition. See 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 153, 127
S.Ct. 793, 797, 166 L.Ed.2d 628 (2007) (district court “never had jurisdiction to
consider” petitioner’s successive petition where he “did not seek or obtain
authorization to file in the District Court”); Williams v. Warden Allenwood USP, 647
F. App’x 65, 67 (3d Cir. 2016) (the district court lacked jurisdiction to consider claim
raised in “second or successive petition filed without the required Court of Appeals
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).
A habeas application is classified as second or successive within
the meaning of § 2244 if: the prior application was decided on the merits, the prior
and new applications challenge the same conviction, and the new application
asserts a claim that could have been raised in a prior habeas application. Benchoff
v. Colleran, 404 F.3d 812, 815-17 (3d Cir. 2005).
The instant petition is Mr. Sierra’s second attempt to collaterally attack, in this
federal court, his Pennsylvania state court conviction imposed by the Lebanon
County Court of Common Pleas. This instant action is therefore, unquestionably a §
2254 action which under 28 U.S.C. § 2244 is “second or successive”.4 Thus, under
the AEDPA, Mr. Sierra is required to seek, and obtain, authorization from the Third
Circuit Court of Appeals before pursuing his second habeas challenge. Mr. Sierra’s
The dismissal of a first federal petition as untimely constitutes an adjudication on
the merits, rendering any later-filed petition “second or successive.” See, e.g., McNabb v.
Yates, 576 F.3d 1028, 1030 (9th Cir.2009) (“We therefore hold that dismissal of a section
2254 habeas petition for failure to comply with the statute of limitations renders subsequent
petitions second or successive for purposes of the AEDPA ....”) (cited with approval in
Stokes v. Gehr, 399 F. App'x 697, 699 n. 2 (3d Cir.2010))
submissions do not reveal that he has been granted leave to file a second of
successive habeas petition by the United States 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, 549 U.S. at 153, 127 S.Ct. at 797;
Blystone v. Horn, 664 F. 3d 397, 412 (3d Cir. 2011) (“A petitioner’s failure to seek
such authorization from the appropriate appellate court before filing a second or
successive habeas petition acts as a jurisdictional bar”).
Accordingly, Mr. Sierra’s petition will be dismissed pursuant to 28 U.S.C. §
2243(b)(3) for lack of jurisdiction.
Based on this determination, the Court can either dismiss the petition, or
under 28 U.S.C. § 1631, transfer it “in the interest of justice.” Because the Court
believes that Mr. Sierra’s present petition does not: (1) rely on a new rule of
constitutional law, made retroactive to cases on collateral review by the United
States Supreme Court, that was previously unavailable, or (2) present newly
discovered evidence that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found him guilty of his 1998 Lebanon County convictions, the
Court will dismiss the petition rather than transfer it to the Third Circuit Court of
The Court’s decision not to transfer the petition has no effect on Mr.
Sierra’s right to apply to the Third Circuit Court of Appeals for approval to file a
Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)(A), a petitioner must obtain a certificate of
appealability (COA) to appeal a final order denying a habeas corpus petition under
28 U.S.C. § 2254. A district court may issue a COA “only if the applicant has made
a substantial showing of the denial of a constitutional right.”
See 28 U.S.C. §
2253(c)(2). When a court denies a petitioner’s habeas claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the claims debatable or wrong. See Slack v. McDaniel, 529 U.S.
473, 483-484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). However, when a
district court denies a petition on procedural grounds, a COA should issue if: (1)
jurists of reason would find it debatable whether the petition states a valid claim of
denial of a constitutional right; and (2) jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. See Slack, supra.
Here, jurists of reason would not find it debatable that this Court was correct
in its procedural ruling that Mr. Sierra’s present petition is a second or successive
petition filed without the authorization of the Third Circuit Court of Appeals.
Consequently, no certificate of appealability will issue.
Based on the foregoing discussion, the Court will issue an order dismissing
the petition for lack of jurisdiction.
The order will also deny a certificate of
appealability, based on the above analysis. However, Mr. Sierra is advised that he
has the right for thirty (30) days to appeal our order denying his petition, see 28
U.S.C. § 2253(a); Fed. R. App. P. 4(a)(1)(A), and that our denial of a certificate of
appealability does not prevent him from doing so, as long as he also seeks a
certificate of appealability from the court of appeals. See Federal Rule of Appellate
An appropriate Order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: December 7, 2017
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