HARRIS v. WARDEN OF SCI-DALLAS et al

Filing 5

MEMORANDUM ORDER dismissing petition for writ of habeas corpus for lack of jurisdiction; denying certificate of appealability; and adopting 4 Report and Recommendation of Magistrate Judge Eddy as the opinion of the Court. The Clerk shall mark this case CLOSED. Signed by Judge David S. Cercone on 4/23/15. (njt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS MARK HARRIS,

Petitioner,
v.

WARDEN OF SCI-DALLAS;
DISTRICT ATTORNEY OF
ALLEGHENY COUNTY; and the
ATTORNEY GENERAL FOR THE
STATE OF PENNSYLVANIA,

Respondents.

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2:15cv192
Electronic Filing
Judge David Stewart Cercone

MEMORANDUM ORDER

This case was commenced on February 12, 2015, and was referred to United States
Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in accordance with the Magistrate
Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges. On
February 27, 2015, Petitioner paid the filing fee in full and his Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 was filed. (ECF No.3.)
On March 16,2015, Magistrate Judge Eddy filed a Report and Recommendation (ECF
No.4) recommending that the Petition for Writ of Habeas Corpus be summarily dismissed as
Petitioner has not received permission from the United States Court of Appeals for the Third
Circuit to file a second or successive petition. It was also recommended that that a certificate of
appealability be denied. Petitioner was served with the Report and Recommendation at his listed

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address and was advised Objections to the Report and Recommendation were due by April2,
2015. Plaintiffhas not filed any objections nor has he sought an extension oftime in which to do
so.
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 and
subsequent applications challenge the same conviction. C.f. Magwood v. Patterson, 561 U.S. 320,
341-42 (20 10) ("the phrase 'second or successive' must be interpreted with respect to the
judgment challenged," and where "there is a new judgment intervening between the two habeas
petitions, ... an application challenging the resulting new judgment is not 'second or successive'
at all."); In re Brown, 594 F. App'x 726, 728 (3d Cir. 2014) (same). Here, both ofPetitioner's §
2254 petitions challenge the same 1991 conviction and sentence. The Court denied Petitioner's
first petition on the merits and petitioner raises the same bases for challenging that conviction in
the instant petition. 1 Thus, Petitioner's new application is a second or successive petition within
the meaning of28 U.S.C. § 2244.
The record is clear that Petitioner has not obtained leave from the United States Court of
Appeals for the Third Circuit to file his new petition.
After de novo review of the petition and the Report and Recommendation, the following
order is entered:

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On April 21, 2005, the Court denied on the merits Petitioner's first petition and denied a
certificate of appealability. See Harris v. Lavan, 2:03cv283 (W.D. Pa.) On September 6, 2005,
the United States Court of Appeals denied Petitioner's request for a certificate of appealability
"for failure to make a substantial showing of the denial of a constitutional right." The appellate
court concluded that "Appellant's conviction for robbery and thus felony murder satisfies the
Federal Constitution's demands."

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AND NOW, this

l!i~ay of April, 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 March 16, 2015 (ECF No.4), as augmented
above is adopted as the opinion of the Court.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(l) ofthe Federal Rules

of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.

David Stewart Cercone
United States District Judge

cc:

THOMAS MARK HARRIS
BN9618
1000 Follies Rd.
Dallas, PA 18612
(via U.S. First Class Mail)

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