DORSEY v. LANE et al
Filing
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MEMORANDUM OPINION re 9 MOTION to Dismiss for Lack of Jurisdiction filed by JAY LANE, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA. Signed by Magistrate Judge Lisa Pupo Lenihan on 12/15/16. (clh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES EARL DORSEY,
Petitioner,
v.
JAE LANE and THE ATTORNEY
GENERAL OF THE ST ATE OF
PENNSYLVANIA,
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Civil Action No. 16 - 1485
Magistrate Judge Lisa Pupo Lenihan
ECF No. 9
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Respondents.
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MEMORANDUM OPINION
Pending before the Court is a Motion to Dismiss for Lack of Jurisdiction filed by
Respondents on November 9, 2016. (ECF No. 9.) Respondents request that this Court dismiss
the Petition for Writ of Habeas Corpus filed by Petitioner James Earl Dorsey (ECF No. 1) as a
second or successive petition for which this Court lacks jurisdiction to consider because
Petitioner did not obtain authorization to file it from the Third Circuit Court of Appeals. For the
following reasons, Respondents' Motion will be granted and the Petition will be dismissed.
A. Second or Successive Habeas Petitions
AEDP A mandates that before a state prisoner may file a second or successive habeas
corpus petition in which he challenges a judgment of sentence that he previously challenged in a
federal habeas action, he must first obtain an order from the court of appeals authorizing the
district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). See, e.g., Magv.·ood v.
Patterson. 561 U.S. 320 (2010). Once a petitioner moves for authorization to file a second or
successive petition, a three-judge panel of the court of appeals must decide within thirty days
whether there is a prima facie showing that the application satisfies § 2244' s substantive
requirements, which are set forth in§ 2244(b)(2). See U.S.C. § 2244(b)(3)(C). AEDPA's
allocation of "gatekeeping" responsibilities to the courts of appeals has divested district courts of
jurisdiction over habeas petitions that are second or successive filings. See, e.g., Burton v.
Stewart, 549 U.S. 147 (2007).
B. Discussion
This is Petitioner's second federal habeas petition challenging his 1996 sentence oflife
imprisonment for a first degree murder conviction. He filed his first petition in this Court on
April 10, 2007, docketed at Civil Action No. 07-509, and that petition was dismissed by Order
dated July 30, 2008. See Dorsey v. Wilson, No. 07-509, (W.D. Pa.) (ECF Nos. 1, 18.)
Following dismissal of his petition, Petitioner sought a certificate of appealability from the Third
Circuit Court of Appeals, docketed at No. 08-3456, but that request was denied on January 28,
2009. He petitioned for rehearing, but the Third Circuit denied his petition on March 6, 2009.
On May 15, 2009, Petitioner filed a Petition for Writ of Certiorari in the Supreme Court of the
United States, docketed at No. 08-10497. The Supreme Court denied that petition on October 5,
2009, and denied his petition for rehearing on November 30, 2009.
On February 10, 2016, Petitioner filed an Application for Leave to File a Second or
Successive Petition Pursuant to 28 U.S.C. § 2244 in the Third Circuit Court of Appeals, which
was docketed at No. 16-1629. On February 29, 2016, the Third Circuit denied the application.
Petitioner argues that the instant Petition for Writ of Habeas Corpus is not a second or
successive petition because his claims involve newly discovered evidence; specifically,
suppressed exculpatory evidence that he did not discover until his co-defendant received relief in
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2011. (ECF No. 14, p.4.) He contends that his case "falls within the scope of Panetti v.
Quarterman. [551 U.S. 930 (2007)], where [his] claims did not come available until well after his
initial habeas corpus petition was filed and adjudicated." Id.
First, Panetti is inapplicable to Petitioner's situation. In Panetti, the Supreme Court held
that "'[t]he statutory bar on 'second or successive' applications does not apply to a Ford
[incompetency] claim brought in an application filed when the claim is first ripe." 551 U.S. at
947. It did not extend its holding beyond Ford based incompetency claims.
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Second, in Magwood v. Patterson, 130 S. Ct. 2788 (2010), the Supreme Court expressly
rejected the approach that would require a district court to look at each claim individually and
determine whether it could have been raised in the petitioner's prior habeas petition. It held that
the "second or successive" determination is made as to a petition as a whole, not as to claims
within a petition:
AEDPA uses the phrase "second or successive" to modify "application."
See§§ 2244(b)(l), (2). The State reads the phrase to modify "claims." See, e.g.,
Brief for Respondents 51 ("Congress' intent for AEDP A was to eradicate
successive claims"). We cannot replace the actual text with speculation as to
Congress' intent. We have previously found Congress' use of the word
"application" significant, and have refused to adopt an interpretation of § 2244(b)
that would "elid[e] the difference between an 'application' and a 'claim,'" Artuz
[v. Bennett, 531U.S.4, 9. 121S.Ct.361. 148 L.Ed.2d 213 (2000)) ]; see also
Gonzalez v. Crosby. 545 U.S. 524. 530. 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)
("[F]or purposes of§ 2244(b), an 'application' for habeas relief is a filing that
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To the extent Petitioner relies on the unpublished Third Circuit opinion of Johnson v. Wvndcr,
408 F. App ·x 616 (3d Cir. 2010), this Court does not regard that opinion as binding precedent.
See Clark v. Prudential Ins. Co. of America, 736 F.Supp.2d 902, 939 (D.N.J. 2010). The court in
Johnson stated that it "[saw] no reason to avoid applying Panetti in the context of other types of
claims that ripen only after an initial federal habeas petition has been filed." Id. at 619.
However, Johnson did not involve a Brady claim and no court in this Circuit has ever applied
this so called "ripeness" exception to Brady claims as Petitioner requests this Court to do.
Nevertheless, that Petitioner was allegedly unaware of the factual predicate underlying his Brady
claims when he filed his first habeas petition does not excuse him from the AEDPA's procedural
requirements, as the factual predicate for those claims existed at the time.
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contains one or more 'claims' "). Therefore, although we agree with the State that
many of the rules under § 2244(b) focus on claims, that does not entitle us to
rewrite the statute to make the phrase "second or successive" modify claims as
well.
Id. at 2798.
The Supreme Court set forth what it referred to as a "straightforward rule" to determine
whether a later-in-time petition falls within§ 2244(b): "where ... there is a 'new judgment
intervening between two habeas petitions,' ... an application challenging the resulting new
judgment is not 'second or successive' at all." Id. at 2802. It then concluded that because
Magwood's first habeas petition challenged the judgment entered by the state court after his
1981 trial, and his second habeas petition challenged the intervening judgment entered after his
1986 resentencing, the latter petition was not "second or successive." Therefore, although
Magwood had had the opportunity to raise the fair-warning claim in his first habeas petition,
neither that claim nor the 1997 petition in which it was raised was subject to the provisions of§
2244(b). Id. at 2801-03.
The Supreme Court has stated that the phrase "second or successive" refers to a habeas
petition that challenges a judgment that was at issue in a prior habeas petition. See Magwood.
130 S. Ct. at 2796-97; see also U.S. v. Winkelman. 746 F.3d 134, 135 (3d Cir. 2014). Here,
Petitioner challenges the same judgment of sentence that he contested in his April 10, 2007
habeas petition docketed at Civil Action No. 07-509. Petitioner did not received authorization
from the Third Circuit to file the instant Petition for Writ of Habeas Corpus, and therefore, it
must be dismissed for lack of jurisdiction.
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C. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a
certificate of appealability for appellate review of a district court's disposition of a habeas
petition. It provides that "[a] certificate of appealability may issue ... only if the applicant has
made a substantial showing of the denial of a constitutional right." In Slack v. McDaniel. 529
U.S. 473, 484 (2000), the Supreme Court stated that "[w]hen the district court denies a habeas
petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling." Applying this standard here, jurists ofreason would not find it debatable
whether the instant petition should be dismissed for lack of jurisdiction. Accordingly, a
certificate of appealability will be denied. An appropriate Order will issue separately.
Dated: December;:;, 2016.
Li
upo Lenihan
United States Magistrate Judge
Cc:
James Earl Dorsey
CZ-6171
SCI Fayette
Post Office Box 9999
LaBelle, PA 15450-9999
(Via First Class Mail)
Counsel of record
(Via CM/ECF mail)
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