Petition for Writ of Certiorari — Matthew S. Becker, Petitioner v. George Little, Acting Secretary, Pennsylvania Department of Corrections, et al.

No. ____________

________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________

MATTHEW S. BECKER,

Petitioner,

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER;

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,

Respondent.

__________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals For The Third Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

MIELE & RYMSZA, P.C.

Edward J. Rymsza, Esq.

Counsel of Record for Petitioner

125 East Third Street

Williamsport, PA 17701

(570) 322-2113

(570) 322-8813 (facsimile)

Rymsza@comcast.net

QUESTION PRESENTED

WHETHER THE COURT SHOULD CLARIFY AND RESOLVE THE

CIRCUIT SPLIT ON THE STANDARDS TO BE UTILIZED WHEN

DECIDING THE THRESHOLD DETERMINATION ON WHETHER TO

ISSUE A CERTIFICATE OF APPEALABILITY?

ii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED

i

TABLE OF AUTHORITIES

iv

PETITION FOR WRIT OF CERTIORARI

1

OPINION BELOW

2

JURISDICTION

2

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

2

STATEMENT OF THE FACTS

3

REASONS FOR GRANTING THE WRIT

5

I. CERTIORARI SHOULD BE GRANTED TO RESOLVE

THE CONFLICT AMONG THE CIRCUITS OF THE STANDARDS TO

APPLY WHEN DECIDING THE THRESHOLD DETERMINATION ON

WHETHER TO ISSUE A CERTIFICATE OF APPEALABILITY.

CONCLUSION

8

CERTIFICATE OF SERVICE

9

CERTIFICATIONS

11

APPENDIX

Third Circuit Order denying En Banc Review (6/2/2022)

Third Circuit Opinion/Mandate (3/21/2022)

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Bracey v. Superintendent Rockview SCI, 986 F.3d 274

7

Buck v. Davis, ___ U.S. ___, 137 S. Ct. 759 (2017)

6

Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004)

7

Pabon v. Superintendent SCI Mahanoy, 654 F.3d 385

7

McGee v. McFadden, ___ U.S. ___, 139 S. Ct. 2608 (2019)

7

Miller-El v. Cockrell, 537 U.S. 322 (2003)

5, 6

(3d Cir. 2021)

(3d Cir. 2011)

STATUTES

28 U.S.C. § 2253 & 2254

2

iv

NO.____________

________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

__________

MATTHEW S. BECKER,

Petitioner,

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER;

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,

Respondent.

__________

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Petitioner, Matthew Becker, by and through his undersigned attorney,

respectfully petitions for a writ of certiorari to review the judgment entered

in this case by the United States Court of Appeals for the Third Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals for the Third Circuit

appears in the Appendix.

JURISDICTION

On March 21, 2022, the Court of Appeals entered its Judgment

affirming the conviction and denial of a certificate of appealability. The

jurisdiction of the Supreme Court is invoked under 28 U.S.C. § 1254(1). This

petition is timely filed within 90 days of the decision below under Rule 13.1 of

this Court.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The pertinent statutory provisions include 28 U.S.C. § 2253 & 2254.

STATEMENT OF THE FACTS

On August 12, 2011, at approximately 11 p.m., while in their residence, a

handgun recently purchased by Mr. Becker discharged while he was cleaning it.

The bullet struck Mr. Becker’s girlfriend Allison Walsh while she was awake in

their bed. At the time, Ms. Walsh was pregnant with the couples’ first child.

Tragically, both Ms. Walsh and their unborn child died as result of the accident.

Mr. Becker was taken into custody while at the Hershey Medical Center and

transported to the Harrisburg State Police barracks. Mr. Becker, while handcuffed

was taken to an isolated room and was provided Miranda warnings. After the

interrogation, he admitted that he had accidentally shot Ms. Walsh. During the

course of that interrogation, Mr. Becker made suicidal comments. At the conclusion

2

of the interrogation and after obtaining his consent to search his residence and

computers, the police decided to have Mr. Becker committed to an involuntary

Section 302 mental health commitment at the Hershey Medical Center. The police

continued their investigation.

Once learning of Mr. Becker’s discharge from the psychiatric hospital, the

police requested that he come back to the Ephrata State Police barracks for further

interrogation. Mr. Becker was driven to the barracks by his father on the morning

of August 18, 2011. While his father waited at the barracks, Mr. Becker by was

escorted by two state police officers to an interrogation room. He was again read his

Miranda warnings. During this interrogation, the questioning became more intense

and accusatory resulting in Mr. Becker invoking his right to remain silent on two

separate occasions. Nevertheless, the police continued to question him.

Unbeknownst to Mr. Becker, his parents retained counsel for him who

arrived at the barracks and waited there for hours, but the police prevented and

refuse to allow him to speak with him and continued to interrogate Mr. Becker for

next several hours. At the conclusion of the interrogation, the police formally

charged Mr. Becker with an open count of murder for the death of his girlfriend and

one count of murder for his unborn child.

The Commonwealth provided notice of its intent to seek a death sentence

prior to trial. On February 25, 2013, a jury trial commenced in Lancaster County

Court of Common Pleas. On March 13, 2013, the jury returned a guilty verdict on

both counts. A penalty phase immediately commenced, but the jury remained

3

deadlocked and a life sentence was imposed. On March 28, 2013, Mr. Becker was

sentenced to a life sentence plus a consecutive sentence of 20 to 40 years for the

death of his unborn child.

A timely direct appeal was filed. On March 11, 2015, a three-judge panel of

the Pennsylvania Superior Court affirmed the judgment of sentence. See

Commonwealth v. Becker, No. 1801 MDA 2013, 2015 WL 7433059 (Pa. Super. Ct.

Mar. 11, 2015). No petition for allowance of appeal was filed to the Pennsylvania

Supreme Court.

On April 6, 2016, a timely petition for post-conviction collateral relief

(“PCRA”) was filed. After an evidentiary hearing was held, the PCRA court denied

relief on April 1, 2017. Another appeal ensued.

On June 26, 2018, in a precedential published opinion, a three-judge panel of

the Pennsylvania Superior Court affirmed. Commonwealth v. Becker, 192 A.3d 106

(Pa. Super. Ct. 2018). A petition for allowance of appeal to the Pennsylvania

Supreme Court was denied on January 7, 2019. Commonwealth v. Becker, 200 A.3d

11 (Pa. 2019).

On March 12, 2019, Mr. Becker filed a Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. §2254. On August 12, 2020, without an evidentiary hearing,

the district court denied habeas relief. The district court also denied the issuance of

a certificate of appealability (“COA”). A notice of appeal to the Third Circuit Court

of Appeals was filed on September 11, 2020.

4

On March 2, 2021, the Third Circuit as an initial matter, requested briefing

to determine in deciding whether to issue a COA, whether the court should consider

the standard of review set forth in 28 U.S.C. § 2254(d)(2). Oral argument on this

issue was held on November 10, 2021.

Finally, on March 21, 2022, a three-judge panel of the Third Circuit (the

“Panel”), in an eleven-page precedential opinion, denied Mr. Becker’s COA and

dismissed his appeal. See Becker v. Sec’y Pa. Dep’t Corr., 28 F. 4th 459 (3d Cir.

2022). In its decision, the Court determined that the AEDPA deference standard

applies to the threshold determination on whether to issue a COA. On June 2,

2022, the Third Circuit denied en banc review.

REASONS FOR GRANTING THE PETITION

CERTIORARI SHOULD BE GRANTED TO RESOLVE

THE CONFLICT AMONG THE CIRCUITS OF THE STANDARDS TO

APPLY WHEN DECIDING THE THRESHOLD DETERMINATION ON

WHETHER TO ISSUE A CERTIFICATE OF APPEALABILITY.

The Panel’s decision in this case, applying the Antiterrorism and Effective

Death Penalty Act of 1996 (the “AEDPA”) at the initial threshold inquiry and

raising the bar on whether to issue a COA, is at odds with both Supreme Court

precedent, decisions from the Third Circuit and decisions from other circuits.

Pursuant to the majority opinion in Miller-El v. Cockrell, 537 U.S. 322 (2003),

this Court expressly determined that the COA standard is a low one, is limited to a

“threshold inquiry” and specifically not a merits inquiry. Id. at 327, 331, 336, 342.

The Court could not be more clear:

5

The COA determination under § 2253(c) requires an overview of the

claims in the habeas petition and a general assessment of their merits.

We look to the District Court’s application of AEDPA to petitioner’s

constitutional claims and ask whether that resolution was debatable

amongst jurists of reason. This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of the

claims. In fact, the statute forbids it. When a court of appeals

sidesteps this process by first deciding the merits of an appeal, and

then justifying its denial of a COA based on its adjudication of the

actual merits, it is in essence deciding an appeal without jurisdiction.

Id. at 336-37.

The Court ultimately held that “[i]t was incorrect for the Court of Appeals,

when looking at the merits, to merge the independent requirements of §§ 2254(d)(2)

and (e)(1) . . . . [and] Subsection (d)(2) contains the unreasonable requirement and

applies to the granting of habeas relief rather than to the granting of a COA.” Id. at

341-42.

The Supreme Court has consistently rebuffed attempts to elevate the COA

standard to that employed in a merits review. See Buck v. Davis, ___ U.S. ___, 137

S. Ct. 759, 773 (2017) (“The COA inquiry, we have emphasized, is not coextensive

with a merits analysis.”). In Buck, the Court reversed the Fifth Circuit in denying a

COA. The Court criticized the circuit court for reaching the underlying issue at the

COA stage stating “[w]hen a reviewing court . . . inverts the statutory order of

operations and ‘first decide[es] the merits of an appeal, . . . then justify[ies] its

denial of a COA based on its adjudication of the actual merits,’ it has placed too

heavy a burden on the prisoner at the COA stage.” Id. at 774.

Nevertheless, the Panel’s decision is incompatible with these Supreme Court

decisions.

6

Indeed, even different panels of the Third Circuit have issued prior contrary

opinions and rejected the use of the AEDPA standard in the preliminary

evaluations of COA claims. See Pabon v. Superintendent SCI Mahanoy, 654 F.3d

385, 392 n.9 (3d Cir. 2011) (rejecting Commonwealth argument of incorporating

AEDPA standard for deciding merits of habeas claim into preliminary evaluation of

COA stating “[t]his attempt to raise our standard of review at the COA stage is

precisely what the Supreme Court rejected in Miller-El.”); Bracey v. Superintendent

Rockview SCI, 986 F.3d 274, 283 (3d Cir. 2021) (court relying on the holdings of

both Miller-El and Pabon when determining whether a COA should be issued).1

The Panel’s decision incorporating a merits analysis into its preliminary

evaluation on whether to grant a COA is in conflict with the holdings of this Court

and the principle that the initial COA threshold inquiry is a low bar and not a

merits analysis. Clarification is needed by this Court as decisions like the Panel’s

restrict meritorious appellate review to many litigants. As a member of this Court

has noted “COA inquiries play an important role in the winnowing process. The

percentage of COA requests granted is not high, but once that hurdle is cleared, a

nontrivial fraction of COAs lead to relief on the merits . . . . [w]e have periodically

reminded lower courts not to unduly restrict this pathway to appellate review.”

McGee v. McFadden, ___ U.S. ___, 139 S. Ct. 2608, 2611 (2019) (Sotomayor, J.

dissenting).

There also exists a split within the circuits. In large part, the Panel relied on the

Tenth Circuit’s 2004 decision in Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004).

However, even that court acknowledged that there are both inter and intra circuit

splits. Id. at 937 n.1.

1

7

Consequently, in order to provide clarity and to reconcile it with the prior

authority of this Court, this Petition for Writ of Certiorari should be granted.

CONCLUSION

WHEREFORE, based on the foregoing arguments and authorities, this Court

should grant the petition for writ of certiorari.

Dated:

August 31, 2022

MIELE & RYMSZA, P.C.

By:

s/Edward J. Rymsza

Edward J. Rymsza, Esq.

Counsel of Record for Petitioner

125 East Third Street

Williamsport, PA 17701

(570) 322-2113

(570) 322-8813 (fax)

Rymsza@comcast.net

8

NO.____________

________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

__________

MATTHEW S. BECKER,

Petitioner,

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

THE DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER;

THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,

Respondent.

__________

CERTIFICATE OF SERVICE

I, Edward J. Rymsza, hereby certify that on this 31st day of August

2022, I served copies of the Petition for a Writ of Certiorari in the abovecaptioned case were mailed, first class postage prepaid to the following:

Elizabeth Prelogar

Solicitor General

United States Department of Justice

950 Pennsylvania Avenue

Washington, D.C. 20530

Travis Anderson, Esq.

Office of the Lancaster County District Attorney

50 N. Duke Street

Lancaster, PA 17602

9

Patricia S. Dodszuweit, Clerk

United States Court of Appeals for the Third Circuit

601 Market Street

Room 21400

Philadelphia, PA 19106-1790

Matthew Becker

Reg. No KY9160

SCI Benner

301 Institution Drive

Bellefonte, PA 16823

I certify that all parties required to be served have been served.

Dated: August 31, 2022

MIELE & RYMSZA, P.C.

By:

s/Edward J. Rymsza

Edward J. Rymsza, Esq.

Counsel of Record for Petitioner

125 East Third Street

Williamsport, PA 17701

(570) 322-2113

(570) 322-8813 (fax)

Rymsza@comcast.net

10

CERTIFICATIONS

I, Edward J. Rymsza, Esq., hereby certify that:

1.

I am a member of the bar of the Supreme Court of the United States,

2.

the text of the electronic brief e-mailed to the Court is identical to the

text of the other paper copies mailed to the Court,

3.

the attached brief has been automatically scanned during preparation

and upon sending by Avast anti-virus detection program and no virus was detected,

4.

on the date below, one copy of the foregoing Petition for Writ of

Certiorari was placed in the United States mail, first class, postage pre-paid

addressed to:

Travis Anderson, Esq.

Office of the Lancaster County District Attorney

50 N. Duke Street

Lancaster, PA 17602

5.

on the date below, ten copies of the same were placed in the United

States mail, first class, postage pre-paid, addressed to:

Supreme Court of the United States

Office of Clerk

One First Street NE

Washington, D.C. 20543

11

Dated:

August 31, 2022

MIELE & RYMSZA, P.C.

By:

s/ Edward J. Rymsza

Edward J. Rymsza, Esq.

Pa. I.D. No. 82911

Attorney for Petitioner

125 East Third Street

Williamsport, PA 17701

(570) 322-2113

(570) 322-8813 (fax)

rymsza@comcast.net

12