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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN FREDERICK NOLE, : CIVIL ACTION 

Petitioner, :

:

v. : NO. 05-cv-5722

:

GEORGE W. PATRICK, et al., :

Respondent. :

:

MEMORANDUM AND ORDER

The Antiterrorism and Effective Death Penalty Act of 1996 (commonly known as

“AEDPA,” and codified as 28 U.S.C. §§ 2241-2266) deals with the right of all persons in state

custody, or in federal custody, to file a petition in a federal court seeking the issuance of a writ of

habeas corpus. If a federal court issues a writ of habeas corpus, the prisoner will be released

from state custody or federal custody (depending on the facts of the case) on the grounds that his

rights guaranteed by the United States Constitution, and/or by a federal law, and/or by a treaty

entered into by the United States, have been violated; habeas corpus motions pursuant to AEDPA

are the only possible means of obtaining this type of relief. See Coady v. Vaughn, 251 F.3d 480,

486 (3d Cir. 2001).

By means of AEDPA, Congress intentionally created a series of restrictive gatekeeping conditions which must be satisfied for a prisoner to prevail regarding a petition seeking

the issuance of a writ of habeas corpus. One such intentionally restrictive gate-keeping condition

is AEDPA’s strict and short statute of limitations. Another intentionally restrictive gate-keeping

condition is AEDPA’s so-called “second or successive rule”, which generally forbids a litigant

Case 2:05-cv-05722-JG Document 4 Filed 05/14/07 Page 1 of 3
 Procedural default occurs when a § 2254 petitioner in this district court

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previously had the right to file an appeal of the conviction and/or sentence involved to a state

court, or the right to file an application for post-conviction relief the conviction and/or sentence

involved to a state court, concerning specific issues, but the petitioner did not, in fact, file such

an appeal or application, and some procedural rule of the state court dictates that the time has

passed for such a state filing. 

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from filing a habeas if that litigant had at least one prior habeas that was dismissed with

prejudice. For purposes of the second or successive rule, the concept of “dismissal with

prejudice” means either:

1. that the prior case was dismissed after merits consideration and 

denial on the merits; or,

2. that the prior case was dismissed on grounds of procedural 

default; or,

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3. that the prior case was dismissed on grounds of AEDPA’s statute 

of limitations.

See, e.g., Jones v. Morton, 195 F.3d 153, 156 n. 2 (3d Cir. 1999); Hull v. Kyler, 190 F.3d 88 (3d

Cir. 1999); Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997). AEDPA provides in relevant part

that before such a second or successive petition is filed in the district court, the prisoner must

first get permission to file in the district court from the circuit court, pursuant to 28 U.S.C. §

2244(b)(3)(A), and that without such circuit permission, the district court lacks subject matter

jurisdiction to consider such a habeas petition. See Benchoff v. Colleran, 404 F.3d 812, 816 (3d

Cir. 2005); Christy, 115 F.3d at 208. 

On October 28, 2005, petitioner filed the above-captioned petition in this court

seeking Habeas Corpus relief pursuant to 28 U.S.C. § 2254. Petitioner has filed three previous

Case 2:05-cv-05722-JG Document 4 Filed 05/14/07 Page 2 of 3
 Properly labeled by the Clerk of this Court as 76-cv-3277, 97-cv-0879 and 02- 2

cv-1315.

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petitions in this court pursuant to 28 U.S.C. § 2254, all three of which attacked the same 2

conviction and/or sentence attacked in 05-cv-5722, and all three of which were dismissed with

prejudice. Therefore, the second or successive rule is triggered in this matter. 

Accordingly, this 14th day of May, 2007, it is hereby ORDERED as follows:

1. This civil action is DISMISSED WITHOUT PREJUDICE on the grounds

that this court lacks subject matter jurisdiction over it.

2. All outstanding motions are DENIED as MOOT.

2. The Clerk of the United States District Court for the Eastern District of

Pennsylvania shall mark this matter as CLOSED in this court for all

purposes, including statistics.

BY THE COURT:

 S/ James T. Giles 

 J.

Case 2:05-cv-05722-JG Document 4 Filed 05/14/07 Page 3 of 3