ATKINSON v. MAZURKIEWICZ et al

Filing 20

MEMORANDUM ORDER indicating that that the petition for writ of habeas corpus filed by petitioner Robert C. Atkinson 4 is dismissed and, because reasonable jurists conclude that a basis for appeal exists, a certificate of appealability is denied; t hat pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure if the petitioner desires to appeal from this Order he must do so within thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.; adopting Magistrate Judge Mitchell's Report and Recommendation 16 as the opinion of the Court, as modified by the instant Memorandum Order. Signed by Judge Nora Barry Fischer on 3/9/12. (jg)

IN THE UNITED STATES DISTRIC:' COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT C. ATKINSON,
Petitioner,
vs.
JOSEPH MAZURKIEWICZ, et aI.,
Respondents.

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Civil Action No. 11-1187

MEMORANDUM ORDER
On January 17,2012, United States Magistrate Judge Robert C. Mitchell filed a Report
and Recommendation (ECF No. 16), recommending that the petition for writ ofhabea:; corpus
filed by petitioner Robert C. Atkinson (ECF No.4) should be dismissed and that a cer:ificate of
appealability should be denied. Service of the Report and Recommendation was made on the
parties, and after a motion for extension oftime was granted, the petitioner filed objections (ECF
No. 19) on March 1,2012.
In his objections, the petitioner makes a number of arguments regarding the conclusions
reached by the magistrate judge in the Report and Recommendation ("R&R") with respect to his
claims. With the single exception that follows, his objections are overruled.
Petitioner challenges the R&R's conclusion that he pncedurally defaulted Claim l(b)­
that the trial court committed error in denying his motion for an acquittal at the end of the
prosecution's case in chief-because he raised it in his direct appeal to the Pennsylvania Superior
Court but not in his petition for allowance of appeal to the Pe:nnsylvania Supreme Court, which
was filed in 2006. (R&R at 8-9.) The procedural default argument was made by the respondents
in the answer (ECF No. 13 at 6-7.)

On May 9, 2000, the Pennsylvania Supreme Court issued "Order 218" which stlltes that
"a litigant shall not be required to petition for hearing or allowance of appeal following an
adverse decision by the Superior Court in order to be deemed to have exhausted all available
state court remedies respecting a claim of error." The Court of Appeals for the Third Circuit has
held that "Order No. 218 renders review from the Pennsylvani~1 Supreme Court 'unavailable' for
purposes of exhausting state court remedies under § 2254(c)." Lambert v. Blackwell, 387 F.3d
210, 233 (3d Cir. 2004).
Respondents acknowledge the existence of Order No.

~,18,

but contend that, if.3. petitioner

files a petition for allowance of appeal, he must still include in it any claim that he wishes to raise
in subsequent federal habeas corpus proceedings. However, ttley cite no authority in support of
this argument and this Court is aware of none. Nor is the Cout aware of any law to the contrary.
Nevertheless, this issue need not be resolved because t'le R&R also concluded in the
alternative that Claim 1(b) was decided by the Superior Court as a matter of state law (R&R at
9), a conclusion that is supported by the record. See ECF No. 13 Ex. V at 6-7. As the Supreme
Court recently reiterated, "we have repeatedly held that 'it is flot the province of a federal habeas
court to reexamine state-court determinations on state-law qw:stions'" Waddington y. Sarausad,
129 S.Ct. 823, 832 n.5 (2009) (quoting Estelle v. McGuire, 5112 U.S. 62, 67-68 (1991 ».
The petitioner contends that, when the prosecution fails to present sufficient evidence to
prove elements of a crime, the conviction is not consistent with the demands of the d'le process
clause, citing Fiore v. White, 531 U.S. 225 (2001). In that case, the Supreme Court held that,
when Fiore was convicted of violating a statute prohibiting the operation of a hazardous waste
facility without a permit, although the Commonwealth conceded that he actually had a permit, his
conviction failed to satisfy due process. That case and its ho.lding are inapposite to the question

presented here, namely whether the Pennsylvania Superior Cou:t detennined his issue as a matter
of state law, which it did. Consequently, he cannot present it t(l this Court as a matter of federal
law.
AND NOW, this

~ay of March, 2012,

IT IS ORDERED that the petition for writ of halJeas corpus filed by petltioner
Robert C. Atkinson (ECF No.4) is dismissed and, because rea::onable jurists conclude: that a
basis for appeal exists, a certificate of appealability is denied.
IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure if the petitioner desires to appeal from this Order he must do so vlithin thirty
(30) days by filing a notice of appeal as provided in Rule 3,

F~.d.

R. App. P.

Magistrate Judge Mitchell's Report and Recommendation dated January 17,2012
(ECF No. 16) is adopted as the opinion of the Court, as modified by the instant Memorandum
Order.

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ora Barry Fiscller
United States District Judge
cc:

Robert C. Atkinson
FS-9930
SCI Greensburg
165 SCI Lane,
Greensburg, PA 15601-9103