United States District Court, D. New Jersey
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 ...