PETTAWAY-PETTIGREW v. GIROUX

Filing 9

MEMORANDUM OPINION & ORDER re 1 Petition for Writ of Habeas Corpus filed by WAYNE PETTAWAY-PETTIGREW, 8 Petition for Writ of Habeas Corpus filed by WAYNE PETTAWAY-PETTIGREW transferred to the Court of Appeals for consideration as a successive petition. Signed by Magistrate Judge Robert C. Mitchell on 05/15/2014. (Mitchell, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WAYNE PETTAWAY-PETTIGREW, HM-1581, )
Petitioner,
)
)
v.
) 2:14-cv-619
)
NANCY A. GIROUX,
)
Respondent.
)
MEMORANDUM and ORDER
Mitchell, M.J.:
Wayne Pettaway-Pettigrew, an inmate at the State Correctional Institution at Albion, has
presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in
forma pauperis.
Pettaway-Pettigrew is presently serving two concurrent ten to twenty year sentences
imposed following his entry of a plea of guilty due to mental illness to charges of aggravated
assault, possession of a weapon, recklessly endangering another person and harassment at No.
CC20065725 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence
was imposed on March 18, 2008.1
As disclosed by the Court of Common Pleas Docket Sheet, the plea was entered on
October 24, 2007 and sentence was imposed on March 18, 2008. No appeal was pursued but on
April 9, 2008, Pettaway filed a post-conviction petition; counsel was appointed to represent him;
an amended petition was filed on September 17, 2008 and on December 15, 2008, leave to
withdraw the post-conviction petition was granted. No further challenges to the conviction were
made at that time. 2

1

See: Petition at ¶¶ 1-6 as well as the Docket Sheet of the Court of Common Pleas of Allegheny County, CP-02CR-5725-2006 which is available on the Pennsylvania Unified Judicial System webportal,
http://ujportal.pacourts.us.
2
Appended to his submission at 2:11-cv-1596, Pettaway submitted a December 17, 2009 letter from his attorney
stating “if you want me to seek reinstatement of your PCRA petition and withdrawal of your plea (and if you are
permitted to withdraw your plea, you could face imposition of the mandatory minimum 3-strikes sentence of 25-50
years if you go to trial and lose), let me know.” Apparently no further activity occurred.

1

On December 16, 2011 Pettaway-Pettigrew filed a habeas corpus petition in this Court.3
On January 12, 2012 that petition was dismissed on the grounds of failure to exhaust state court
remedies and untimeliness and a certificate of appealability was denied.4 No appeal was pursued.
On May 24, 2012, petitioner filed a post-conviction petition in the Court of Common
Pleas.5 The latter petition was dismissed on September 27, 2012.6 A timely notice of appeal was
filed and on May 30, 2013, the Superior Court quashed the appeal writing:
While the pro se brief contains references to, and summaries of, several state and
federal cases, Pettaway fails to set forth an argument why the [post-conviction]
court erred by dismissing as time-barred his petition under the Post-Conviction
Relief Act, 42 Pa.C.S. §§9541-9546, which was filed three and one-half years
after his conviction became final.7
Thus, both the post-conviction court and the Superior Court determined that his postconviction petition was untimely. For this reason, his petition here is in no better posture
that the original filing at 2:11-cv-1596 which was dismissed as both untimely and for
failure to exhaust state court remedies.
The Antiterrorism and Effective Death Penalty Act, signed into law on April 24, 1996,
included several major reforms to the federal habeas corpus laws. As part of this habeas corpus
reform, Congress amended 28 U.S.C.' 2244 to prohibit district courts from entertaining claims
presented in a second or successive habeas corpus application unless the appropriate federal
court of appeals authorizes such filing. The relevant amended language provides as follows:
(A) Before 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.
(B) A motion in the court of appeals for an order authorizing the district court to
consider a second or successive application shall be determined by a three-judge
panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive
3

At that time he set forth his last name as Pettaway.
See: Civil Action No. 2:11-cv-1596 at ECF No.6.
5
See: Court of Common Pleas docket sheet CP-02-CR-5725-2006 at p.9.
6
Id. at p.12.
7
See: Judgment Order of the Superior Court filed on May 30, 2013 submitted as an attachment to the petition and
attached hereto.
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2

application only if it determines that the application makes a prima facie showing
that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or
successive application not later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court of appeals to file a second or
successive application shall not be appealable and shall not be the subject of a
petition for rehearing or for a writ of certiorari.
28 U.S.C. ' 2244(b)(3).
Because the instant petition was improperly filed in this court as opposed to the Court of
Appeals as required by 28 U.S.C. 2244(b)(3)(A), this Court lacks jurisdiction over it without the
authorization of the Court of Appeals, and it will be transferred to the United States Court of
Appeals for the Third Circuit pursuant to 28 U.S.C. 1631 for consideration as a successive
petition.
An appropriate Order shall be entered.

3

ORDER
AND NOW, this 15th day of May, 2014, for the reasons set forth in the foregoing
Memorandum, the instant petition is transferred forthwith to the United States Court of Appeals
for the Third Circuit pursuant to 28 U.S.C. § 1631 for consideration as a successive petition.
s/ Robert C. Mitchell,
United States Magistrate Judge

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ATTACHMENT

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