KENNEDY v. COMMONWEALTH OF PENNA. et al
Filing
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MEMORANDUM OPINION & ORDER re 3 Petition for Writ of Habeas Corpus filed by DAVID ROBERT KENNEDY transferring petition to the Court of Appeals for consideration as a successive petition. Signed by Magistrate Judge Robert C. Mitchell on 08/12/2015. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID ROBERT KENNEDY, GK-9993,
Petitioner,
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)
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) 2:15-cv-1041
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v.
COMM. OF PENNSYLVANIA, et al.,
Respondents.
MEMORNDUM and ORDER
David Robert Kennedy an inmate at the State Correctional Institution-Bellefonte has
presented a petition for a writ of habeas corpus which he has been granted leave to file in forma
paupers.
Kennedy is presently serving a life sentence imposed following his conviction by a jury
of first degree murder at No. CP-02-CR-571-2001 in the Court of Common Pleas of Allegheny
County, Pennsylvania. This sentence was imposed on November 21, 2005. However, this is not
the first federal petition challenging this conviction. At 2:11-cv-542 he likewise sought habeas
corpus relief. The latter petition was dismissed on the merits on June 22, 2011 and on January
12, 2012 the Court of Appeals denied a certificate of appealability at its Docket No. 11-03036.
He has now returned to this Court again seeking to challenge his state court conviction.
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
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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
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.
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ORDER
AND NOW, this 12th day of August 2015, 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. ยง 1631 for consideration as a successive petition.
The motion for appointment of counsel (ECF No.4) is dismissed as moot.
s/ Robert C. Mitchell,
United States Magistrate Judge
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