Cooper v. Davis

          MEMORANDUM OPINION

          FREDA L. WOLFSON UNITED STATES DISTRICT JUDGE.

         Petitioner, David Cooper (“Cooper” or “Petitioner”), is proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Pet., ECF No. 1.) Cooper indicates that he previously filed a habeas petition in this district in 2010. (See Id. ¶ 14; ECF No. 1-1 at ECF pp. 32-35.) Examination of the docket from that proceeding reveals that, shortly after it was commenced, United States District Judge Anne E. Thompson issued a Notice and Order, pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), notifying Cooper that, under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a prisoner challenging detention under § 2254 must include all arguments for relief in one petition. Cooper v. Ricci, Civ. No. 10-2901 (AET), ECF No. 2. This Notice and Order further notified Cooper that if he chose to proceed with his habeas petition in that action he would “lose [his] ability to file a second or successive petition under § 2254, absent certification by the Court of Appeals for the Third Circuit and extraordinary circumstances.” Id. In response, Cooper specifically noted that he wished to have his petition in that matter ruled upon as his “one all-inclusive 2254 Petition.” Civ. No. 10-2901, ECF No. 5. Judge Thompson denied that habeas petition on its merits in an Opinion and Order issued April 3, 2013. Civ. No. 10-2901, ECF Nos. 21 & 22.

         Cooper apparently filed a second and third petition for post-conviction relief (“PCR”) in state court after his habeas petition was denied by Judge Thompson. (ECF No. 1 ¶ 11(b)-(c).) He indicates that both of those petitions were dismissed as untimely or procedurally barred. (Id.)

         Cooper's Petition presently before this Court seeks habeas relief based on various claims that counsel during his first state PCR proceeding provided ineffective assistance by failing to raise certain arguments that Cooper's trial counsel had been ineffective. (See ECF No. 1 ¶ 12; see also Mem. of Law, ECF No. 1-2, at ECF pp. 19-42.) These arguments were apparently among the claims that Cooper attempted to assert in his second and third state PCR petitions. (See ECF No. 1 ¶ 12.) Cooper also alleges that he attempted to raise these issues with the initial PCR court in a pro se brief he filed the day after his petition had been denied. (Id.)

         The present Petition, however, still ultimately challenges the same conviction and sentence that Cooper challenged in his first habeas petition, which Judge Thompson denied on its merits. Thus, Cooper's pleading in this matter is a second or successive petition under 28 U.S.C. § 2244(b) and does not fall into recognized exceptions to the “second or successive” rule. See, e.g., Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) (“A habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition.”); Magwood v Patterson, 561 U.S. 320, 342 (2010) (explaining that first habeas petition challenging new sentence is not second or successive under § 2244(b) though petitioner previously filed habeas petition challenging original sentence for same judgment). As explained by the Supreme Court,

[AEDPA] established a stringent set of procedures that a prisoner “in custody pursuant to the judgment of a State court” must follow if he wishes to file a “second or successive” habeas corpus application challenging that custody. In pertinent part, before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2).

Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citations omitted). Thus, a prisoner who presents a claim not previously raised may file a second or successive § 2254 petition only after obtaining an order from the appropriate court of appeals authorizing the district court to consider it. See 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, the district court lacks jurisdiction to address the merits of such a petition. See 28 U.S.C. § 2244(b)(4).

         Cooper has not alleged that he sought or received authorization from the Court of Appeals for the Third Circuit to file a second or successive § 2254 petition.^[1] Without authorization, Cooper's Petition must be either dismissed for lack of subject-matter jurisdiction or transferred to the Third Circuit pursuant to 28 U.S.C. § 1631. Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (“When a second or successive habeas petition is erroneously filed in a district court without the permission of a court of appeals, the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631.”).

         In deciding whether it is in the interests of justice to transfer a second or successive petition to the court of appeals, a district court may consider whether a petitioner “ha[s] alleged facts sufficient to bring his petition within the gatekeeping requirements of § 2244, which permits ‘second or successive' petitions based upon newly discovered evidence or a new rule of constitutional law.” See Hatches v. Schultz, 381 Fed.Appx. 134, 137 (3d Cir. 2010). Under § 2244(b)(3), the court of appeals must determine that a second or successive petition presents a claim not previously raised that satisfies § 2244(b)(2)'s new-rule or actual-innocence provisions. See Gonzalez v. Crosby, 545 U.S. 524, 529-530 (2005). Section 2244(b)(2) provides,

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would ...