The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LANDON WILEY THOMAS, :
Petitioner : CIVIL ACTION NO. 3:21-2159
v. : (JUDGE MANNION)
:
GEORGE LITTLE,
:
Respondent
MEMORANDUM
Petitioner, Landon Wiley Thomas, an inmate confined in the State
Correctional Institution, Houtzdale, Pennsylvania, filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). The filing fee
has been paid. Petitioner challenges his 2014 guilty plea, in which Petitioner
pled guilty to multiple counts of robbery and was sentenced to a 12½ to 25
year term of incarceration with a five year consecutive term of probation. Id.
A response (Doc. 10) and traverse (Doc. 11) having been filed, the petition
is ripe for disposition. For the reasons that follow, the Court concludes that
the petition is as an unauthorized “second or successive” habeas petition
under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. §2244(b), and will dismiss the petition for lack of jurisdiction.
I. Background
The state court procedural background is adopted from the
Pennsylvania Superior Court’s October 29, 2021 Memorandum Opinion
affirming the denial of Petitioner’s PCRA petition as untimely, and is as
follows:
The Commonwealth charged [Thomas] with 13 counts of
Robbery arising out of a spree of hold-ups of gas stations,
convenience stores and banks during which [Thomas] used his
pointed finger or a piece of plastic under his sweatshirt to
simulate a weapon. [The Commonwealth withdrew Counts 12
and 13 (Robbery—Threat Immediate Serious Injury, (18 Pa.C.S.
§3701 A1(ii) ).]
On May 11, 2015, [Thomas] entered a negotiated guilty plea to 9
counts of Robbery—Threat of Immediate Serious Injury, 18
Pa.C.S. 3701(a)(1)(ii), a felony of the first degree and 2 counts
of Robbery—Taking Property From Another by Force, 18
Pa.C.S. §3701(a)(1)(v), a felony of the third degree. The Court
sentenced [Thomas pursuant to the negotiated plea agreement
to an aggregate sentence of 12½ to 25 years’ imprisonment, with
a consecutive 5–year term of probation.]
* * * *
[Thomas] filed no post sentence motion or appeal.
On August 26, 2015, [Thomas] filed a pro se Motion for Post
Conviction Collateral Relief in which he asserted that the Court
imposed a constitutionally infirm sentence, citing, Alleyne v.
United States,133 S.Ct. 2151 (2013) and Commonwealth v.
Hopkins, 117 A.3d 247 (2015). [Thomas] further alleged that the
Court imposed an impermissible sentence under 42 Pa.C.S.
§9714, Sentence for Second and Subsequent Offenses. On
September 14, 2015, prior to the appointment of PCRA counsel,
[Thomas] filed a pro se Amendment to the PCRA Motion.
On October 22, 2015, the Court appointed Jennifer Tobias, Esq.,
as PCRA Counsel. Appointed Counsel filed a Motion to Withdraw
on November 20, 2015. On March 25, 2016, [Thomas] filed
Defendant's Addendum to Counsel's No Merit Letter.
On March 30, 2016, the Court ordered the Commonwealth to file
a Response and Memorandum in Support thereof to [Thomas’s]
claims as to the asserted applicability of Alleyne v. United
States,133 S.Ct. 2151 (2013) and Commonwealth v. Hopkins,
117 A.3d 247 (2015).
Thereafter, [Thomas] filed a series of pro se pleadings each of
which opposed Appointed Counsel’s Motion to Withdraw and
sought to raise new claims.
* * * *
On December 23, 2016, Court ordered that [Thomas] shall file
no further pleadings pending disposition of the filings of record.
PCRA Court Opinion, 6/15/2017, at 1, 4–5. On June 15, 2015,
the PCRA court issued Pa.R.Crim.P. 907 notice of intent to
dismiss Thomas’s PCRA petition. On July 13, 2017, the PCRA
dismissed the petition.
PCRA Ct. Op., 6/15/17, at 1, 4-5. This Court affirmed, and the
Supreme Court of Pennsylvania denied Appellant’s petition for
permissive appeal.
Commonwealth of Pennsylvania v. Thomas, No. 624 MDA 2021 (Pa. Super.
Oct. 29, 2021).
On February 11, 2019, Thomas filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. §2254, in the United States District Court for the
Western District of Pennsylvania. Thomas v. Smith, Civil No. 3:19-cv-0021
(W.D. Pa. Sept. 28, 2021). In his petition, Thomas raised six grounds for
relief: (1) the denial of an impartial tribunal in violation of due process; (2)
ineffective assistance of counsel rendering his guilty plea involuntary; (3) the
suppression court erred in not requiring identification witnesses to testify
about the photographic identification procedure; (4) the suppression court
erred in allowing the prosecution to violate a sequestration order; (5) the
prosecution committed fraud upon the court by using out-of-court statements
of a material witness and not disclosing credibility issues; and (6) the post-
conviction relief court failed to consider issues raised by Petitioner in various
“addendums” to his post-conviction relief petition. Id.
In a Report and Recommendation dated October 14, 2020, the
Magistrate Judge determined Petitioner’s claims to be procedurally
defaulted, finding that “Petitioner, even if his claims were not defaulted and
my review were de novo, does not persuade that his plea was not knowing
and voluntary.” (Id. at Doc. 15).
By Order dated September 28, 2021, the District Court overruled
Petitioner’s objections to the Magistrate Judge’s Report and
Recommendation, denied the petition for writ of habeas corpus as
procedurally defaulted and denied a certificate of appealability. (Id. at Doc.
18).
On December 28, 2021, Petitioner filed the instant petition for writ of
habeas corpus, pursuant to 28 U.S.C. §2254. Petitioner again challenges his
2014 guilty plea based on the denial of an impartial tribunal in violation of
due process and ineffective assistance of counsel rendering his guilty plea
involuntary. (Doc. 7, amended petition).
II. Legal Standards
Pursuant to 28 U.S.C. §2244(b)(1), if a habeas petitioner erroneously
files a second or successive habeas application “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.” Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002). A habeas
application is classified as second or successive within the meaning of 28
U.S.C. §2244 if a prior application has been decided on the merits, the prior
and new applications challenge the same conviction, and the new application
asserts a claim that was, or could have been, raised in a prior habeas
application. See Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In
re Olabode, 325 F.3d 166, 169-73 (3d Cir. 2003).
III. Discussion
A review of the instant petition reveals that it is a second or successive
habeas application within the meaning of 28 U.S.C. §2244. First, the Petition
challenges the same 2014 guilty plea that he challenged in his first federal
habeas proceeding. Second, the dismissal of Petitioner’s first habeas
petition constitutes an adjudication on the merits for §2244 purposes. See
Hernandez v. Diguglielmo, 2005 WL 331734, at *2 (E.D. Pa. Feb. 10, 2005)
(noting that dismissal for a procedural default constitutes a merits
adjudication) (collecting cases); Rauso v. Pennsylvania Board of Probation
& Parole, 2004 WL 1126283, at *1 (E.D. Pa. May 20, 2004) (in denying
petitioner’s §2244 motion for leave to file a second or successive habeas
petition, the “Third Circuit noted that the prior habeas petition had been
dismissed for procedural default and that procedural default is a dismissal
on the merits for purposes of requiring leave to file an application to file a
second or successive habeas petition.”). Third, Petitioner either did, or could
have, asserted the instant three grounds for relief in his first petition.
Petitioner does not assert, and nothing in the record indicates, that the
Third Circuit Court of Appeals authorized the filing of the instant second or
successive habeas petition. Consequently, the Court lacks jurisdiction to
consider the petition. See Robinson, 313 F.3d at 139. In addition, the Court
concludes that it would not be in the interest of justice to transfer this case to
the Third Circuit, because nothing in the instant filing comes close to
satisfying the substantive requirements for a second or successive petition
under 28 U.S.C. §2244(b)(2). For these reasons, the Court will dismiss the
instant unauthorized second or successive habeas petition for lack of
jurisdiction. Robinson, 313 F.3d at 139.
IV. Conclusion
For the foregoing reasons, Thomas’ unauthorized second or
successive petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254
is dismissed for lack of jurisdiction. The Court declines to issue a certificate
of appealability because Petitioner has failed to make a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2); 3d Cir. L.A.R.
22.2 (2011); United States v. Eyer, 113 F.3d 470 (3d Cir. 1997).
An appropriate Order will issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: September 29, 2022
21-2159-01