Powell v. SCI Mahanoy

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAUL POWELL, Civil No. 3:17-cv-1387

Petitioner . (Judge Mariani)

v. .

SCI-MAHANOY SUPERINTENDENT,

et al., :

Respondents .

MEMORANDUM

Petitioner Pau! Powell (“Powell”) filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 challenging a conviction and sentence imposed in the Court of

Common Pleas of Luzerne County, Pennsylvania. For the reasons set forth below, the

Court will dismiss the petition for lack of jurisdiction.

l. Factual and Procedural Background

On February 5, 1990, Roy Myran was shot outside a bar in Wilkes-Barre,

Pennsylvania. (Doc. 27-1, p. 14). Powell and his brother, Robert Powell, were arrested and

charged with killing Myran. On October 8, 1991, following a bench trial in the Court of

Common Pleas of Luzerne County, the brothers were each convicted of first-degree

murder, among other charges, in the homicide of Myran. (Doc. 27-1, pp. 4-5). On May 20,

4993, each brother was sentenced to life in prison. (Doc. 27-1, p. 51).

After the judgments of sentence were imposed, Powell filed a timely direct appeal to

the Pennsylvania Superior Court. (Doc. 27-1, p. 56). On January 17, 1995, the Superior

Court affirmed the judgment of sentence. (Doc. 27-1, pp. 63-71; Commonwealth v. Powell,

660 A.2d 124 (Pa. Super. 1995)). Powell filed a petition for allowance of appeal to the

Pennsylvania Supreme Court. (Doc. 27-2, pp. 1-37). On September 15, 1995, the

Pennsylvania Supreme Court denied the petition. (Doc. 27-2, pp. 38; Commonwealth v.

Powell, 542 Pa. 634, 665 A.2d 469 (Pa. 1995) (table decision)).

On January 15, 1997, Powell filed a timely pro se PCRA petition. (Doc. 27-2, pp.1-

37). The PCRA court subsequently appointed counsel. See Commonwealth v. Powell,

2016 WL 5865855, at *1 (Pa. Super. Aug. 11, 2016). Powell thereafter filed a petition to

obtain substitute counsel, which the court denied. See id. Powell then filed a petition to

proceed pro se. See id. Following a hearing on September 9, 1998, the PCRA court

permitted counsel to withdraw, and further permitted Powell to file an amended PCRA

petition pro se. See id. On October 5, 1998, Powell filed an amended pro se PCRA

petition. See id. On March 16, 2000, the PCRA court denied relief. See id. On March 29,

2000, Powell filed a pro se notice of appeal with the Pennsylvania Superior Court. See id.

On December 4, 2001, the Superior Court vacated the order dismissing Powell's amended

PCRA petition and remanded the matter for appointment of counsel. Commonwealth v.

Powell, 787 A.2d 1017 (Pa. Super. 2001).

On January 18, 2002, the PCRA court appointed counsel for Powell. See

Commonwealth v. Powell, Nos.1990-904/5 (Luzerne Cty. Ct. Aug. 26, 2002). On July 17,

2002, a PCRA hearing was held, and on August 26, 2002, the PCRA court dismissed the

amended PCRA petition. See id. Powell then filed a pro se appeal to the Superior Court.

(See Doc. 27-2, p. 39). On October 29, 2003, the Superior Court affirmed the PCRA court's

order, and the Pennsylvania Supreme Court denied allowance of appeal. (Doc. 27-2, pp.

39-65, 67: Commonwealth v. Powell, 841 A.2d 578 (Pa. Super. 2003) (unpublished

memorandum), appeal denied, 864 A.2d 1204 (Pa. 2005)).

On March 31, 2005, Powell filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 challenging his Luzerne County Court of Common Pleas conviction and

sentence. See Powell v. Wynder, No. 3:05-cv-647 (M.D. Pa.). On September 30, 2008,

Powell’s § 2254 habeas corpus petition was denied on the merits. /d. at (Doc. 66). Powell

then filed a request for a certificate of appealability in the United States Court of Appeals for

the Third Circuit. Powell v. Wynder, et al., No. 08-4196 (3d Cir.). On October 8, 2009, the

Third Circuit Court of Appeals denied the request for a certificate of appealability. See id.

Powell filed a petition for writ of certiorari to the United States Supreme Court. See id. On

October 4, 2010, the United States Supreme Court denied the petition for writ of certiorari.

See id.

On or about January 2, 2014, Powell filed a serial PCRA petition. (Doc. 27-4, pp. 1-

15). On May 12, 2014, Powell filed an amended PCRA petition and, with leave of court, a

second amended petition on June 20, 2014. (Doc. 27-4, pp. 16-23). In the petition, Powell

claimed that an eyewitness to the murder, Charles Eckhart, came forward with new

information, and that a new witness to the murder, Stanley Petroski, came forward. (Id.).

On December 14, 2014, the PCRA court held a hearing. (Doc. 27-4, pp. 46-74). At the

hearing, trial counsel testified that the defense theory was intoxication, arguing that Powell

was too drunk to form the intent necessary for first degree murder. (Doc. 27-4, pp. 49-52,

N.T. at 9-19). Additionally, Powell and his brother Robert testified, as well as Charles

Eckhart and Stanley Petroski. (Doc. 27-4, pp. 60-62, 69-71, N.T. at 51-52, 56-60, 90-95).

On May 12, 2015, following the evidentiary hearing, the PCRA court dismissed the petition

as untimely. (Doc. 27-5, p. 6). Powell filed a notice of appeal to the Pennsylvania Superior

Court. (Doc. 27-5, p. 7). On August 11, 2016, the Superior Court affirmed the PCRA

court’s dismissal of the petition. (Doc. 27-6, pp. 22-32; Commonwealth v. Powell, 2016 WL

5865855 (Pa. Super. Aug. 11, 2016)). The Superior Court found that the PCRA petition

was untimely and that Powell failed to prove an exception to the time bar. Commonwealth

v. Powell, 2016 WL 5865855, at *2-5. Specifically, the Superior Court agreed with the

PCRA’s court determination that Charles Eckhart’s testimony was cumulative evidence of

Powell’s intoxication, and therefore, Powell failed to prove that Charles Eckhart's October

2013 statement constituted after-discovered facts that could render the serial petition timely.

Id. at*4. The Superior Court further noted that although Stanley Petroski was unavailable

to Powell and the Commonwealth at the time of trial, Powell was able to admit Stanley

Petroski’s written statement wherein he stated his belief that Powell was drunk on the night

of the murder. Id. After the Superior Court issued its decision, Powell filed a petition for

allowance of appeal nunc pro tunc with the Pennsylvania Supreme Court. (Doc. 27-6, pp.

45-46), On March 28, 2017, the Pennsylvania Supreme Court denied the petition for leave

to file a petition for allowance of appeal nunc pro tunc. (Doc. 27-6, p. 57, Commonwealth v.

Powell, 15 MM 2017 (Pa.)).

On August 2, 2017, Powell filed the instant federal habeas petition. (Doc. 1).

ll. | Second or Successive Habeas Petition

The Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132,

110 Stat. 1214 (Apr. 24, 1996), specifically provides that “[b]efore 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.” 28 U.S.C. § 2244(b)(3)(A); see Burton v. Stewart, 549 U.S. 147, 153 (2007) (if

a petitioner does not receive the required authorization from the court of appeals before

filing a second or successive petition, the district court is “without jurisdiction to entertain it’);

Robinson v. Johnson, 313 F.3d 128 (3d Cir. 2002) (holding that, absent an order from the

circuit court granting leave to a petitioner, a district court does not have subject matter

jurisdiction to entertain a petition for writ of habeas corpus that it deems to be a second or

successive petition). 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

requirements, which are set forth in § 2244(b)(2). See U.S.C. § 2244(b)(3)(C).

Section 2244(b)'s requirement that prisoners obtain authorization from the

appropriate court of appeals before filing “a second or successive habeas corpus

application under section 2254” with the district court is jurisdictional. Burton v. Stewart,

549 U.S. 147, 149 (2007). Here, Powell has not obtained, or sought to obtain, any

authorization from the Third Circuit. Therefore, this Court must first determine whether the

instant petition is subject to § 2244(b)’s requirements, since Powell has already litigated one

federal habeas corpus petition with this Court.

lll. Discussion

Presently before the Court is Powell’s second § 2254 habeas petition challenging his

Luzerne County Court of Common Pleas conviction and sentence. Powell filed his first

petition in this Court on March 31, 2005. See Powell v. Wynder, No. 3:05-cv-647 (M.D.

Pa.). On September 30, 2008, the § 2254 petition was denied on the merits. /d. at (Doc.

66). Following denial of his petition, Powell sought a certificate of appealability from the

Third Circuit Court of Appeals. Powell v. Wynder, et al., No. 08-4196 (3d Cir.). On October

8, 2009, the Third Circuit Court of Appeals denied the request for a certificate of

appealability. See id. Powell then filed a petition for writ of certiorari to the United States

Supreme Court, which was denied on October 4, 2010. See id. Powell did not file 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.

A habeas petition is not a “second or successive” petition simply because it is the

second or later-in-time petition which the petitioner has filed after his initial conviction. See

Magwood v. Patterson, 561 U.S. 320, 332 (2010). Instead, a petition’s status as a

successive petition depends on whether it challenges the same judgment which was

challenged in a previous habeas petition decided on the merits or dismissed with prejudice.

Id. at 333-34. Where there is an intervening judgment between the denial of the first

habeas petition and the filing of the second habeas petition, the second petition attacks a

new judgment and is therefore not “second or successive” for the purposes of § 2244. Id, at

339.

As Justice Thomas wrote in Magwood:

AEDPA’s text commands a more straightforward rule: where, unlike in Burton,

there is a “new judgment intervening between the two habeas petitions,” 549

U.S., at 156, 127 S. Ct. 793, an application challenging the resulting new

judgment is not “second or successive” at all.

Id. at 341-342.

However, if the petitioner is challenging the same state court judgment that he already

challenged, or could have challenged in a previous federal habeas petition, the district court

must evaluate whether the petitioner's actions constitute an abuse of writ in determining

whether the petition is “second or successive” under § 2244(b). See Magwood, 561 U.S. at

336 n. 11 (explaining that Magwood does not abrogate the application of abuse-of-the-writ

principles to second-in-time petitions attacking the same judgment:

This case does not require us to determine whether § 2244(b) applies to

every application filed by a prisoner in custody pursuant to a state-court

judgment if the prisoner challenged the same state-court judgment once

before. Three times we have held otherwise. See Slack v. McDaniel, 529

U.S. 473, 487, 120 S.Ct. 1595 (2000); Stewart v. Martinez-Villareal, 523 U.S.

637, 643, 118 S.Ct. 1618, 140 L.Ed. 2d 849 (1998); Panetti v. Quarterman,

551 U.S. 930, 945, 127 S. Ct. 2842, 168 L.Ed. 2d 662 (2007)).

Powell appears to argue that the instant habeas petition is not a second or

successive petition because his claims involve newly discovered evidence; specifically,

statements from Stanley Petroski and Charles Eckhart. (Doc. 32, pp. 3-4; see also Doc. 1,

p. 14). The United States Supreme Court has expressly rejected this “claim-by-claim”

approach that Powell uses to support his position. Magwood, 561 U.S. at 334.’ Further, the

Supreme Court has held that the “second or successive” determination is made as to a

petition as a whole, not as to claims within a petition. /d. (“AEDPA uses the phrase ‘second

or successive’ to modify ‘application[,]’ . . . [not] to modify ‘claims.”). In addressing this

issue, the Third Circuit Court of Appeals has found that “the Supreme Court decision [in

'The Court in Magwood observed that § 2244(b) “describes circumstances when a claim

not presented earlier may be considered: intervening and retroactive case law, or newly

discovered facts suggesting ‘that . . . no reasonable factfinder would have found the applicant

guilty of the underlying offense.’ § 2244(b)(2)(B)(ii).”

Magwood] makes clear that ‘a habeas petition is deemed initial or successive by reference

to the judgment it attacks—not which component of the judgment it attacks or the nature or

genesis of the claims it raises.” In re Brown, 594 F. App’x 726, 730 (3d Cir. 2014) (citing

and disagreeing with Suggs v. United States, 705 F.3d 279, 287-88 (7th Cir. 2013)).

In the instant action, Powell is challenging the same judgment of sentence that he

contested in his March 31, 2005 habeas petition docketed at Civil Action No. 05-647. See

Magwood, 561 U.S. at 331-33 (holding that the phrase “second or successive” refers to a

habeas petition that challenges a judgment that was at issue in a prior habeas petition).

With respect to the allegedly newly-discovered evidence, the claims could have been, and

to some extent were, raised in Powell's previous habeas corpus petition, which was denied

on the merits. In his first habeas petition, Powell specifically challenged the testimony of

Charles Eckhart. See Powell v. Wynder, 2008 WL 4453219. Furthermore, the state courts

found that the present claims related to Stanley Petroski and Charles Eckhart were known

to Powell at the time of trial. In addressing these claims, the Superior Court adopted the

following reasoning of the PCRA court:

what cannot be ignored is that the facts upon which [Powell's] claims are

predicated were known to [him] at the time of the trial. The record reveals

that while Mr. Petroski was unavailable to both the Commonwealth and the

defendants at the time of the trial, the trial court allowed the defendants to

present the written statement of Mr. Petroski. Mr. Eckhart was available and

testified at the trial of this matter. The statement he provided in October 2013

and his testimony at the [PCRA hearing] is merely corroborative or cumulative

of the other testimony already presented to the fact finder.

Commonwealth v. Powell, 2016 WL 5864406, at * 4 (citing PCRA Court Opinion 5/12/15, at

5-6). The record demonstrates that Powell raised his claims related to Stanley Petroski and

Charles Eckhart on direct appeal, and in his 1998 and 2014 PCRA petitions, and the state

courts explicitly determined that these claims were known to Powell at the time of trial. (See

Doc. 27-4, pp. 16-22; Doc. 32, pp. 7-16; see also Commonwealth v. Powell, 2016 WL

5865855). Therefore, these claims were available to Powell well before filing the instant

habeas petition in August 2017.

Accordingly, the instant petition is a “second or successive” petition within the

meaning of 28 U.S.C. § 2244. Because Powell did not obtain permission from the Third

Circuit Court of Appeals to file the instant petition, the Court will dismiss the petition for lack

of jurisdiction.? See 28 U.S.C. § 2244(b)(1).

2 To the extent that Powell seeks relief pursuant to Federal Rule of Civil Procedure 60(b), and

requests this Court to re-open his original § 2254 habeas action, the proper avenue would be the filing of a

Rule 60(b) motion for relief from judgment in the 2005 habeas corpus action. The Court expresses no

opinion as to the ultimate success of any motion Powell may file.

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IV. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate

of appealability (“COA”), an appeal may not be taken from a final order in a proceeding

under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the district court's

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. “When

the district court denies a habeas petition on procedural grounds without reaching the

prisoner's underlying constitutional claim, a COA 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.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). Here, jurists of reason would not find it debatable whether the instant

petition should be dismissed for lack of jurisdiction. As such, a certificate of appealability

will not issue.

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V. Conclusion

Based on the foregoing, Powell's petition (Doc. 1) for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 will be dismissed for lack of jurisdiction. A separate Order

shall issue.

GAY

bes, ANAL:

Robert D> Mariani

United States District Judge

Date: November b , 2019

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