1

 Pursuant to F.R.E. 201, the Court takes judicial notice

of the adjudicated facts and procedural history of Scott vs.

Mechling, Civ. No. 03-1881 (M.D. Pa. 2004)(J. Muir). 

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

REGINALD SCOTT, :

:

Petitioner : No. 4:CV-05-1337

:

vs. : (Petition Filed 07/05/05) 

:

EDWARD J. KLEM, : (Judge Muir)

:

Respondent :

ORDER

July 12, 2005

Petitioner, Reginald Scott, an inmate confined in the

State Correctional Institution, Frackville, Pennsylvania,

filed this petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. Along with the filing of his petition, Scott

filed an application to proceed in forma pauperis. Named as

respondents are Edward J. Klem, Superintendent at SCIFrackville, and the Pennsylvania State Attorney General.

Having taken judicial notice of related official court

filings,1 the Court will dismiss Scott's petition for habeas

corpus pursuant to Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll.

Case 4:05-cv-01337-MM-DB Document 3 Filed 07/12/05 Page 1 of 7
2

 Pursuant to Rule 4 of the Rules Governing Section 2254

Cases, the district judge to whom the case is assigned is

required to examine a habeas corpus petition to determine

whether “it plainly appears from the face of the petition and

any exhibits annexed to it that the petitioner is not entitled

to relief in the district court,” and if so determined, “the

judge shall make an order for its summary dismissal.” 

2

§ 2254 (1977), as it is a second or successive petition

presented without leave of the Court of Appeals.2

Background

On March 24, 1975, a jury sitting in the Court of Common

Pleas of Dauphin County found Scott guilty of one count of

murder in the second degree and two counts of robbery. On

June 23, 1975 he was sentenced to life imprisonment, followed

by a ten to twenty year term of incarceration. While Scott

did not pursue any direct appeal of his conviction, he has

filed a number of petitions challenging the validity of his

conviction. Scott's initial petition for post-conviction

relief was filed on October 11, 1979, pursuant to the

Pennsylvania Post-Conviction Hearing Act. On March 5, 1995,

Scott filed a petition pursuant to the Pennsylvania PostConviction Relief Act. 

Notably absent from Scott's current petition is any

recitation of a previously filed federal petition for habeas

Case 4:05-cv-01337-MM-DB Document 3 Filed 07/12/05 Page 2 of 7
3

corpus relief. However, the Court’s docket system and

computerized legal research programs confirm that Scott has

previously filed a habeas corpus petition. See Scott vs.

Mechling, Civ. No. 03-1881 (M.D. Pa. 2004)(J. Muir).

Specifically, on October 22, 2003, Scott filed his first

habeas corpus petition with this Court. On April 8, 2004,

this Court granted respondent's motion to dismiss and

dismissed Scott's petition as barred by the one year period

of limitations set forth in 28 U.S.C. § 2244(d)(1). On April

19, 2004, petitioner filed an appeal of this Court's

dismissal to the United States Court of Appeals for the Third

Circuit. On October 14, 2004, the Third Circuit Court of

Appeals denied Scott's request for a certificate of

appealability, finding the following:

By itself, the period from July 6, 1999, when one of

Petitioner's state proceedings concluded on appeal,

to November 6, 2001, when his next state proceeding

began, was sufficient to exhaust the applicable oneyear limitations period. See 28 U.S.C. § 2244(d);

see also Stokes v. Dist. Attorney of the County of

Phil., 247 F.3d 539, 542 (3d Cir. 2001)(holding that

the time during which a state prisoner may file a

petition for certiorari from the denial of state

postconviction relief does not toll the limitations

period). Moreover, under our precedent, the

pendency of the state-court proceeding that began on

November 6, 2001 (and which concluded on appeal on

September 22, 2003) could not act to toll the

Case 4:05-cv-01337-MM-DB Document 3 Filed 07/12/05 Page 3 of 7
4

limitations period. See Merritt v. Blaine, 326 F.3d

157, 165-66 (3d Cir. 2003)(holding that a state

postconviction application that was found by the

state courts to be untimely under state law could

not be deemed “properly filed” for purposes of 28

U.S.C. § 2244(d)(2)). Finally, we conclude that

petitioner has failed to make out a case for

equitable tolling for any relevant period. See

Miller v. N.J. Dep't of Corr., 145 F.3d 616, 618 (3d

Cir. 1998). 

Scott vs. Mechling, No. 04-2139 (3rd Cir. 2004). 

Presently before the Court is Scott's second habeas

petition challenging his second degree murder and robbery

convictions. The Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), in addition to establishing the one

year limitations period that barred Scott's first petition,

also bars the filing of a second or successive habeas

petition unless the petitioner secures leave of the

applicable Court of Appeals to proceed. 28 U.S.C. § 2244(b).

The threshold question presented here is whether the bar to

filing a second or successive § 2254 petition applies where

the first petition was dismissed as untimely.

Discussion

A second or subsequent petition for habeas corpus relief

is not considered “successive” if the initial habeas corpus

petition was dismissed for a technical or procedural reason,

Case 4:05-cv-01337-MM-DB Document 3 Filed 07/12/05 Page 4 of 7
5

rather than on the merits. See Slack vs. McDaniels, 529 U.S.

473, 485-487 (2000) (a petition filed after the dismissal of

a previous petition for failure to exhaust state remedies,

which is not an adjudication on the merits, is not a “second

or successive” petition); see also Stewart vs. MartinezVillareal, 523 U.S. 637, 643-645 (1998) (a petition raising

the same claim as raised in an earlier petition that was

dismissed as premature was not a “second or successive”

petition under 28 U.S.C. § 2244(b)(3)(A)). Scott's initial

federal habeas petition was dismissed as barred by the

applicable one year period of limitations. Although a

dismissal based upon the statute of limitations generally

does not involve an examination of the merits of the

underlying substantive claims, such a dismissal is considered

an adjudication on the merits for purposes of determining

whether a subsequent petition is successive under the AEDPA.

See Villanueva vs. United States, 346 F.3d 55, 58 (2nd Cir.

2003)(a petition that has been dismissed as time-barred has

been decided on the merits and renders any subsequent

petition second or successive under AEDPA.); United States

vs. Harris, CIV.A. 02-6825, 2002 WL 31859440, *3 (E.D. Pa.

Dec. 20, 2002). As the Second Circuit in Villanueva

Case 4:05-cv-01337-MM-DB Document 3 Filed 07/12/05 Page 5 of 7
3

 The court observed that its reasoning applied with equal

force to habeas petitions filed by state prisoners pursuant to

28 U.S.C. § 2254. 346 F.3d at 60 n.1.

6

explained:

[T]he dismissal of a [§ 2254 or] § 2255 petition as

untimely under AEDPA presents a ‘permanent and

incurable’ bar to federal review of the merits of

the claim. The bar is permanent because, unlike

cases where a habeas or § 2255 petition is dismissed

without prejudice for failure to exhaust or as

premature, a time-bar cannot be corrected.

Accordingly, we hold that a habeas or § 2255

petition that is properly dismissed as time-barred

under AEDPA constitutes an adjudication on the

merits for successive purposes.

346 F.3d at 61.3

Because Scott previously filed a federal habeas corpus

petition challenging his 1975 conviction that was denied “on

the merits,” rather than on procedural grounds, this new

petition constitutes “a second or successive petition.” As

a result, Scott is required to seek an order from the Third

Circuit Court of Appeals authorizing this Court to consider

his petition. 28 U.S.C. § 2244(b)(3)(A). As Scott has

failed to present such authorization, this petition must be

dismissed. This Court lacks jurisdiction to consider Scott's

petition for habeas corpus relief and it will be dismissed

without prejudice to petitioner’s right to seek the necessary

Case 4:05-cv-01337-MM-DB Document 3 Filed 07/12/05 Page 6 of 7
authorization from the Third Circuit Court of Appeals to file

a second or successive habeas corpus petition.

IT IS HEREBY ORDERED THAT:

1. Petitioner's application to proceed in forma

pauperis (Doc. No. 2) is GRANTED only for the

purpose of filing the petition for writ of

habeas corpus. 

2. The petition for writ of habeas corpus

(Doc. No. 1) is DISMISSED.

3. The Clerk of Court is directed to CLOSE this case.

 s/Malcolm Muir

 

MUIR

United States District Judge

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