CARTER v. COLEMAN et al

Filing 8

MEMORANDUM OPINION & ORDER re 2 REPORT AND RECOMMENDATION re [1-1] Habeas Petition filed by HOWARD A. CARTER. It is hereby ordered that the Report and Recommendation of Magistrate Judge Eddy is adopted as the Opinion of the Court. The Clerk shall mark this case as CLOSED. Signed by Judge Maurice B. Cohill on 3/3/2015. (cag)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HOWARD A. CARTER,
Petitioner,

v.
BRIAN V. COLEMAN and
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA,
Respondents.

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Civ. No. 14-1671

MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner Howard Carter's Second Motion under 28 U.S.C.
§ 2254 [ECF No. 1-1 ]. In this Motion, Petitioner is arguing that inter alia he was denied his
Constitutional Rights under the 1st, 4t\ 5th, 9th, and 14th Amendments due to ineffective
assistance of counsel. Petitioner, in his Objections to Magistrate Judge Eddy's December 15,
2014 Report and Recommendation ("R&R")[ECF No.2], claims that there has been no prior
adjudication on the merits of this case and, therefore, this is not a successive petition. Petitioner
is mistaken.
This motion is a second or successive § 2254 petition. A habeas application is classified
as second or successive if a prior application has been decided on the merits, and the prior
subsequent applications challenge the same conviction. C.f. Slack v. McDaniel, 529 U.S. 473,
485-86 (2000). Here, both of Petitioner's § 2254 petitions challenge the same 1996 conviction
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and sentence. The Court denied Petitioner's first petition on the merits. Thus, Petitioner's new
application is a second or successive petition within the meaning of28 U.S.C. § 2244.

On June 19, 2003, the Court denied on the merits Petitioner's ineffective assistance of
counsel claim. On March 9, 2004, the United States Court of Appeals denied Petitioner's request

The Court does not have jurisdiction over such a motion without prior Third Circuit
approval. The record is clear that Petitioner has not obtained leave from the Court of Appeals for
the Third Circuit to file his new petition. In fact, Petitioner applied for such permission in
February 2008 and the Court of Appeals for the Third Circuit denied the request on June 9, 2008.
In addition, because jurists of reason would not debate this procedural ruling, a certificate of
appealability will not issue. See, e.g., Walker v. Frank, 56 F. App'x 577, 579 (3d Cir. 2003).
Petitioner is advised that he has the right to appeal this Order denying his Motion, see 28
U.S.C. § 2253(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 Procedure 2.
After de novo review of the petition and documents in the case, together with Report and
Recommendation, and the Petitioner's objections, the following order is entered:
AND NOW, this 3rd day ofMarch, 2015;
IT IS ORDERED that the instant petition for writ of habeas corpus shall be, and hereby

is, DISMISSED for lack of jurisdiction. Inasmuch as reasonable jurists would not find it
debatable whether the instant petition is a second or successive petition as to which jurisdiction
is lacking, IT IS FURTHER ORDERED that no certificate of appealability shall issue.
The Report and Recommendation filed on December 15, 2014 [ECF No.2], is adopted as
the opinion of the Court.

]t{ ~ If>,

~ i;.:.11 ,)N.

Maurice B. Cohill, Jr.
Senior District Court Judge

for a certificate of appealability concluding that "jurists o~ reaso~ could ~ot ,?ebate the District
Court's resolution of Appellant's claim that trial counsel m was meffect1ve.
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cc:

HOWARD A. CARTER
DG0250
PO Box 9999
LaBelle, PA 15450
Lexington, K Y 40512

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