The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN M. BAILEY, )
) Civil Action No. 19 – 619
Petitioner, )
)
v. ) Magistrate Judge Lisa Pupo Lenihan
)
COMMONWEALTH OF )
PENNSYLVANIA, )
)
Respondent. )
MEMORANDUM OPINION1
Pending before the Court is a Petition for Writ of Habeas Corpus (“Petition”) filed by
Steven M. Bailey (“Petitioner”) pursuant to 28 U.S.C. § 2241. For the following reasons, the
Court finds that, despite what Petitioner has labeled his Petition, 28 U.S.C. § 2254 is the
controlling statute in this case, and because this is the second of such petitions directed at
Petitioner’s 2005 judgment of sentence out of Allegheny County, the Petition is subject to
dismissal for lack of jurisdiction.
I. Background
Petitioner is currently serving a sentence of life imprisonment without the possibility of
parole for the first-degree murder of Derrick Steele. The facts of the crime, as set forth on direct
appeal by the Pennsylvania Superior Court, are as follows:
. . . . . On the afternoon of June 8, 2004, Derrick Steele, the victim,
accosted Tammy Brown, [Petitioner’s] fiancée, while she was walking with her
girlfriend, Kelly Shipton, and three children on Perrysville Avenue in the city of
Pittsburgh. As Ms. Brown walked down the street carrying her and [Petitioner’s]
1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to jurisdiction by a United States Magistrate Judge, including entry of a final
judgment. (ECF Nos. 11, 15.)
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one-year-old daughter, the victim began yelling at Ms. Brown, threatening to kill
[Petitioner] and demanding to speak with him concerning a long-standing
argument between the two men. As the confrontation escalated, Ms. Brown
became hysterical and had Ms. Shipton call [Petitioner] on Ms. Brown’s cell
phone. When he answered the phone, [Petitioner] could hear the victim shouting,
“Where is your man? Get your man[!] Tell that mother fucker he’s dead,” could
hear his fiancée yelling “get off me, stop hitting me,” and heard his daughter
crying. A neighborhood fire station captain observed this “heated argument” and
watched the victim walk away from Ms. Brown as a police car approached. Ms.
Brown walked to a nearby pharmacy with Ms. Shipton and the children.
Within a few minutes, [Petitioner] arrived at the pharmacy, picked up Ms.
Brown, Ms. Shipton and the three children and drove them to Ms. Brown’s house.
[Petitioner] then drove a short distance to Mr. Bill’s Tap & Grill Bar, where he
pulled up parallel to the front entrance, put his foot on the brake, and saw the
victim outside with two other men. [Petitioner] then reached across the front
passenger seat of his car, aimed his gun in the direction of the men, and fired two
shots. As the victim retreated into the bar, [Petitioner] fired two more shots after
him into the glass in the door to the bar. One of these bullets penetrated the
victim’s head, killing him instantly.
As a result of this incident, [Petitioner] was charged with one count each
of criminal homicide and carrying a firearm without a license, and four counts of
recklessly endangering another person. The Honorable Lester G. Nauhaus
presided over [Petitioner’s] five-day jury trial in January 2005. The
Commonwealth presented the testimony of several witnesses, including that of the
victim’s girlfriend, Charmaine Holloway. Ms. Halloway [sic] related an incident
which had occurred seven months earlier when [Petitioner] had pulled a gun and
threatened the victim.
In his defense, [Petitioner] testified that he had been threatened by the
victim several times over the last few months, that he was scared of the victim,
and that he had been shot at by the victim in March 2004. In addition, [Petitioner]
testified that on the day of the shooting, as he pulled up in front of the bar, he saw
the victim reach under his shirt for a shiny object that [Petitioner] thought might
be a nickel-plated gun based upon previous confrontations with the victim.
Finally, both Ms. Brown and Ms. Shipton testified on [Petitioner’s] behalf and
provided their account of events concerning [Petitioner] and the victim. The trial
court instructed the jury on first-degree murder, third-degree murder, voluntary
manslaughter and involuntary manslaughter. On January 10, 2005, the jury
returned its guilty verdicts.
On March 15, 2005, the court sentenced [Petitioner] to life imprisonment
without the possibility of parole for first-degree murder and to concurrent sentences
of one to two years’ incarceration for the remaining five convictions. [Petitioner]
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obtained new counsel and filed post-sentence motions raising claims of ineffective
assistance of trial counsel. Judge Nauhaus presided over [Petitioner’s] August 16,
2005 hearing on the post-sentence motions, which the court subsequently denied.
(Res’t Exh. 16, ECF No. 17-1, pp.180-83) (internal citations to record omitted). Petitioner’s
judgment of sentence was affirmed on appeal by the Pennsylvania Superior Court on April 17, 2007.
(Resp’t Exh. 16, ECF No. 17-1, pp.180-93.) Petitioner filed a Petition for Allowance of Appeal,
which was denied by the Pennsylvania Supreme Court on December 20, 2007. (Resp’t Exh. 20, ECF
No. 17-1, pp.250-51.)
On April 23, 2008, Petitioner filed a pro se Petition pursuant to Pennsylvania’s Post-
Conviction Relief Act (“PCRA”). (Resp’t Exh. 21, ECF No. 17-1, pp.252-60.) Petitioner was then
appointed counsel who filed an Amended PCRA Petition on his behalf on October 1, 2008. (Resp’t
Exh. 22, ECF No. 17-1, pp.261-96.) An evidentiary hearing was held on January 9, 2009, and PCRA
relief was denied on January 29, 2009. (Resp’t Exh. 24, ECF No. 17-1, pp.332-35.) The Superior
Court affirmed the denial of PCRA relief on October 1, 2010. (Resp’t Exh. 31, ECF No. 18-1,
pp.139-49.) Petitioner filed a Petition for Allowance of Appeal, which was denied by the
Pennsylvania Supreme Court on March 30, 2011. (Resp’t Exh. 35, ECF No. 18-1, p.217.)
On April 19, 2011, Petitioner filed a second pro se PCRA Petition, which contained a
statement signed by Mark Brown who testified at Petitioner’s jury trial. (Resp’t Exh. 36, ECF No.
18-1, pp.218-42.) According to Mr. Brown’s statement, he did not testify truthfully at the trial and in
fact saw another witness, Cooley Davis, pick up a gun from the victim then run from the scene.
However, on September 25, 2013, the PCRA court granted Petitioner’s motion to withdraw the
PCRA petition because Mr. Brown no longer wished to recant. (Resp’t Exh. 41, ECF No. 18-1,
p.278.)
During the pendency of Petitioner’s second PCRA proceedings, he filed a pro se Petition for
Writ of Habeas Corpus in this Court, which was docketed at Civil Action No. 11-1020. Bailey v.
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Stewart, et al., No. 11-1020, ECF No. 1 (W.D. Pa.). On February 6, 2013, Petitioner requested that
the Petition be stayed pending his second PCRA proceedings, and his request was granted on
February 12, 2013. Id., ECF Nos. 14, 16. After the conclusion of Petitioner’s second PCRA
proceedings, the Commonwealth moved to lift the stay and reopen the case. Id., ECF No. 18. The
Court granted the motion and lifted the stay on October 1, 2013. Id., ECF No. 19. On February 19,
2014, Petitioner, through attorney Mark McCulloch, filed a Supplemental Petition for Writ of Habeas
Corpus. Id., ECF No. 22. On March 7, 2014, the Court denied the Petition and Supplemental
Petition for Writ of Habeas Corpus. Id., ECF Nos. 23, 24. The Third Circuit Court of Appeals
denied Petitioner’s request for a certificate of appealability on December 16, 2014. Id., ECF No. 28.
The United States Supreme Court denied Petitioner’s Petition for Writ of Certiorari on March 9,
2015, which was docketed at Civil Action No. 14-1104.
On June 10, 2015, Petitioner filed a third pro se PCRA Petition. (Resp’t Exh. 42, ECF No.
18-1, pp.279-91.) Appointed counsel filed an Amended PCRA Petition on Petitioner’s behalf on
November 9, 2015. (Resp’t Exh. 43, ECF No. 18-1, pp.292-97, ECF No. 19-1, pp.1-3.) In his
Petition, Petitioner claimed to have found an after-discovered witness, Avid Nalls, who would testify
that he saw the victim pull a gun out immediately before Petitioner shot and killed the victim. An
evidentiary hearing was held on January 14, 2016, at which time Petitioner presented testimony from
Mr. Nalls. On April 18, 2016, the PCRA court denied relief because Petitioner did not establish that
Mr. Nall’s testimony would have compelled a different verdict. (Resp’t Exh. 49, ECF No. 19-1,
pp.101-10.) On October 25, 2016, the Superior Court affirmed the denial of PCRA relief. (Resp’t
Exh. 55, ECF No. 19-1, pp.229-38.) The Pennsylvania Supreme Court denied Petitioner’s Petition
for Allowance of Appeal on June 1, 2017. (Resp’t Exh. 58, ECF No. 19-1, p.282.)
On May 15, 2018, Petitioner, through attorney Robert L. Sirianni, filed in the Third Circuit
an application to file a second or successive petition for writ of habeas corpus. See In re: Steven
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Mykel Bailey, Civil Action No. 18-2081 (3d Cir.). The Third Circuit denied the application on May
31, 2018, noting that even if the evidence concerning Mr. Nalls could not have been discovered
previously, Petitioner had failed to show that “no reasonable factfinder would have found him guilty”
of first degree murder in light of Mr. Nalls’ testimony. (ECF No. 1-2.)
Petitioner, through attorney Sirianni, filed the instant Petition and Brief in Support
thereof on May 24, 2019. (ECF Nos. 1 & 2.) In his Petition, he asserts a single claim, that he is
entitled to relief under 28 U.S.C. §2241 because he is actually innocent of the crime of first
degree murder and was never given the opportunity to present his claim of innocence in the state
courts. Respondents filed their Answer to the Petition on September 19, 2019. (ECF Nos. 16-
20.)
II. Discussion
Respondents submit that despite the fact that Petitioner is seeking relief pursuant to 28
U.S.C. § 2241, the instant Petition is really a second or successive petition for writ of habeas
corpus for which Petitioner did not have authorization to file and for which this Court lacks
jurisdiction to consider. See ECF No. 16. On the other hand, Petitioner argues that § 2241 is
available to him because (1) he makes a claim of actual innocence and (2) has not had an
unobstructed procedural shot at presenting his claim of innocence by the Pennsylvania Court
system. See ECF No. 2.
First, the Court notes that all of the cases on which Petitioner relies to support his
position are inapplicable to him since they involved federal prisoners who were barred from
raising their claims of innocence by way of a motion filed pursuant to 28 U.S.C. § 2255 and who
argued that they were entitled to challenge their conviction under 28 U.S.C. § 2241 because §
2255 was an “inadequate or ineffective” remedy to test the legality of their detention. See ECF
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No. 2, p.6 (citing cases). Unlike the petitioners in those cases, Petitioner is not a federal
prisoner, and the Third Circuit has already explicitly addressed the situation where, like here, a
state prisoner challenging the validity or execution of his state court sentence attempts to rely on
§ 2241 instead of the more specific provision of § 2254 in order to circumvent the restriction on
filing second or successive petitions. Specifically, in Coady v. Vaughn, 251 F.3d 480 (3d Cir.
2001), the court explained:
. . . . [B]oth Sections 2241 and 2254 authorize Coady’s challenge to the legality of
his continued state custody. However, with respect to habeas petitions filed by
state prisoners pursuant to Section 2254, Congress has restricted the availability
of second or successive petitions through Section 2244(b). Allowing Coady to
file the instant petition in federal court pursuant to Section 2241 without reliance
on Section 2254 would circumvent this particular restriction in the event that
Coady seeks to repetition for habeas relief and would thereby thwart
Congressional intent. Thus, applying the “specific governs the general” canon of
statutory construction to this action, we hold that Coady must rely on Section
2254 in challenging the execution of his sentence.
Id., at 484-85. The Court finds that the Petition in this case is governed by § 2254 regardless of
the title Petitioner has given it because Petitioner is expressly challenging the validity of his
conviction and sentence. See, e.g., Keeling v. Pennsylvania, 519 F. App’x 120, 121 (3d Cir.
2013); DeVaughn v. Dodrill, 145 F. App’x 392, 394 (3d Cir. 2005). To allow Petitioner to
proceed under § 2241 would permit him to circumvent Congressional intent governing second or
successive habeas filings in federal courts through artful labeling. Accordingly, the instant
Petition will be treated as a petition filed pursuant to 28 U.S.C. § 2254.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 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
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petition. 28 U.S.C. § 2244(b)(3)(A). See, e.g., Magwood 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 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)(B)-(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).
As noted above, this is the second petition Petitioner has filed challenging his 2005
judgment of sentence out of Allegheny County, and, to date, the Third Circuit has not granted
him authorization to file a second or successive petition. It is thus clear that the instant Petition
is subject to dismissal as an unauthorized petition over which this Court lacks jurisdiction.
il. Certificate of Appealability
A certificate of appealability will be denied because Petitioner has not made a substantial
showing of the denial of a constitutional right or shown that jurists of reason would disagree that
his habeas petition is an unauthorized second or successive petition. See, e.g., Slack v.
McDaniel, 529 U.S. 473 (2000) (explaining standard for grant of a certificate of appealability
where court does not address petition on the merits but on some procedural ground); Walker v.
Government of the Virgin Islands, 230 F.3d 82, 89-90 (3d Cir. 2000). An appropriate order will
issue separately.
Lisa Pupo Lenihan
United States Magistrate Judge
Dated: January 13, 2021.
Cc: Counsel of record
(Via CM/ECF electronic mail)
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