CAPITOL v. ATTORNEY GENERAL OF PENNSYLVANIA et al

Filing 16

MEMORANDUM ORDER: AND NOW, this 7th day of February, 2024; IT IS HEREBY ORDERED that Respondent's motion to dismiss, ECF No. 9 , is GRANTED, the within petition for a writ of habeas corpus is DENIED, and that a Certificate of Appealability i s also DENIED, without prejudice to Petitioner's right to seek authorization to file a second or successive petition from the Court of Appeals for the Third Circuit, if he so desires. In the event Petitioner is able to receive such authoriza tion, he will then have the right to file a new petition with this Court at a new docket number. The report and recommendation of Chief Magistrate Judge Lanzillo, dated January 12, 2024, ECF No. 15 , is adopted as the opinion of this Court. As there are no further matters pending before the Court relative to the instant petition, the Clerk is directed to mark this case "CLOSED." Signed by Judge Susan Paradise Baxter on 2/7/2024. (snc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ISAIAH CAPITOL,
Petitioner,
v.
WARDEN OF SCI-MERCER,
Respondent.

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C.A. No. 23-165 Erie
District Judge Susan Paradise Baxter
Chief Magistrate Judge Richard Lanzillo

MEMORANDUM ORDER
This pro se action for habeas corpus relief was filed by Petitioner Isaiah Capital, an
inmate incarcerated at the State Correctional Institution at Mercer, Pennsylvania (“SCI-Mercer”),
who is serving a sentence of imprisonment imposed by the Court of Common Pleas of Erie
County, Pennsylvania. In his habeas petition, Petitioner seeks relief under 28 U.S.C. § 2254,
challenging his judgment of sentence. The petition was referred to Chief United States
Magistrate Judge Richard A. Lanzillo, for report and recommendation in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for
Magistrate Judges.
The record indicates that Petitioner was convicted of two counts of Robbery, Theft by
Unlawful Taking, Receiving Stolen Property, and Terroristic Threats, and was subsequently
sentenced to serve an aggregate term of 11 to 22 years’ imprisonment on July 15, 2005.
On February 9, 2009, Petitioner filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 in this Court, challenging his conviction based on ineffectiveness of trial counsel,
prosecutorial misconduct, and illegality of sentence. See Capitol v. Nish, Case No. 1:09-cv-16
(W.D. Pa. 2009). On October 12, 2011, United States District Judge Sean J. McLaughlin denied
Petitioner’s habeas petition and dismissed the action.
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Petitioner filed the instant habeas petition on June 7, 2023, over eleven years after the
dismissal of his prior habeas petition, challenging the same judgment of sentence, without having
first sought or received authorization to pursue a second or successive habeas petition from the
Third Circuit Court of Appeals. As a result, on October 26, 2023, Respondent filed a motion to
dismiss the petition as an unauthorized second or successive petition, pursuant to 28 U.S.C.
§2244(b). [ECF No. 9].
On January 12, 2024, Chief Magistrate Judge Lanzillo issued a Report and
Recommendation (“R&R”) recommending that Respondent’s motion to dismiss be granted, that
the instant petition be denied, and that a Certificate of Appealability be denied, without prejudice
to Petitioner’s right to seek authorization to file a second or successive petition from the Court of
Appeals for the Third Circuit. [ECF No. 15]. Objections to the R&R were due to be filed by
January 29, 2024; however no timely objections have been received by the Court.
After de novo review of the petition and documents in the case, together with the report
and recommendation, the following order is entered:
AND NOW, this 7th day of February, 2024;
IT IS HEREBY ORDERED that Respondent’s motion to dismiss [ECF No. 9] is
GRANTED, the within petition for a writ of habeas corpus is DENIED, and that a Certificate of
Appealability is also DENIED, without prejudice to Petitioner’s right to seek authorization to file
a second or successive petition from the Court of Appeals for the Third Circuit, if he so desires.
In the event Petitioner is able to receive such authorization, he will then have the right to file a
new petition with this Court at a new docket number. The report and recommendation of Chief
Magistrate Judge Lanzillo, dated January 12, 2024 [ECF No. 15], is adopted as the opinion of

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this Court. As there are no further matters pending before the Court relative to the instant
petition, the Clerk is directed to mark this case “CLOSED.”

_____________________________
SUSAN PARADISE BAXTER
United States District Judge

cc:

The Honorable Richard A. Lanzillo
Chief United States Magistrate Judge
All parties of record

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