UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DAVID M. ROUSH, :

:

Petitioner : CIVIL NO. 4:CV-05-762

:

v. :

: (Judge McClure)

:

REBECCA WHITE-ROUSH, ET AL., :

:

:

Respondents :

ORDER

April 21, 2005

Background

This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was

filed by David M. Roush, an inmate presently confined at the Rockview State

Correctional Institution, Bellefonte, Pennsylvania (SCI-Rockview). The required filing

fee has been paid. Petitioner has also submitted a supporting memorandum. See

Record document no. 2.

Named as Respondents are Roush’s ex-wife, Rebecca White-Roush and

Pennsylvania’s Attorney General Jerry Pappert. For the reasons outlined below, the

Case 4:05-cv-00762-JFM-JVW Document 3 Filed 04/21/05 Page 1 of 6
1 Petitioner and Respondent Roush were married on May 19, 2001. The

marriage produced one child. Mrs. Roush subsequently filed for divorce and full

custody of the parties’ minor child on October 16, 2003.

On April 19, 2004, the Dauphin County Court of Common Pleas awarded full

custody of the parties’ minor child to Mrs. Roush and denied the Petitioner’s request

for visitation. An appeal to the Pennsylvania Superior Court was quashed by

Memorandum dated December 28, 2004. 

2

petition will be dismissed.

On July 23, 2001, Petitioner pled guilty to charges of indecent assault on a

person less than sixteen (16) years of age and corruption of a minor. However, his

petition does not challenge either the legality of his criminal conviction or the resulting

sentence. He also does not attack the computation of his sentence or assert any claim

that would affect the duration of his confinement. Rather, Petitioner seeks an order

reversing an unfavorable child custody determination rendered in the Dauphin County

Court of Common Pleas.1 His petition seeks habeas corpus relief based on general

assertions that the Court of Common Pleas abused its discretion, was biased and

prejudiced and violated his due process rights.

Discussion

Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4

(“Preliminary Consideration by the Judge”) of the Rules Governing Section 2254

Case 4:05-cv-00762-JFM-JVW Document 3 Filed 04/21/05 Page 2 of 6
3

Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977). See, e.g.,

Patton v. Fenton, 491 F. Supp. 156, 158-159 (M.D. Pa. 1979). Rule 4 provides in

pertinent part: “If 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, the judge

shall make an order for its summary dismissal and cause the petitioner to be notified.” 

A petition may be dismissed without review of an answer “when the petition is

frivolous, or obviously lacking in merit, or where. . . the necessary facts can be

determined from the petition itself. . . .” Allen v. Perini, 424 F.2d 134,141 (4th Cir.),

cert. denied, 400 U.S. 906 (1970). Accord Love v. Butler, 952 F.2d 10, 15 (1st Cir.

1991). The Fourth Circuit Court of Appeals also stated that “the District Court has a

duty to screen out a habeas corpus petition which should be dismissed for lack of

merit on its face.” Allen, 424 F.2d at 141.

Prior to the 1996 amendments, § 2244 authorized dismissal of a successive

habeas petition “that presented no new ground not heretofore presented and

determined.” McCleskey vs. Zant, 499 U.S. 467, 483 (1991). § 2244 provided: 

(a) No circuit or district judge shall be required to entertain an application

for writ of habeas corpus to inquire into the detention of a person

pursuant to a judgment of a court of the United States if it appears that

the legality of such detention has been determined by a judge or court of

the United States on a prior application for writ of habeas corpus and the

petition presents no new ground not heretofore presented and determined,

Case 4:05-cv-00762-JFM-JVW Document 3 Filed 04/21/05 Page 3 of 6
4

and the judge or court is satisfied that the ends of justice will not be

served by such inquiry. 

 

The Supreme Court in McCleskey expanded § 2244 to also preclude a person

from raising a new claim in a subsequent habeas petition that he could have raised in

his first habeas petition:

A petitioner may abuse the writ by failing to raise a claim through

inexcusable neglect. Our most recent decisions confirm that a petitioner

can abuse the writ by raising a claim in a subsequent petition that he could

have raised in his first, regardless of whether the failure to raise it earlier

stemmed from a deliberate choice. 

McCleskey, 499 U.S. at 489. 

Following the 1996 amendments, Section 2244(b)(2) now provides:

(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed unless–

(A) the applicant shows that the claim relies on a new rule of

constitutional law made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable, or

(B) (i) the factual predicate for the claim could not have been

discovered previously through the existence of due diligence;

and

 (ii) the facts underlying the claim, if proven and viewed in

the light as a whole, would be sufficient to establish by clear

and convincing evidence that, but for constitutional error, no

reasonable fact finder would have found the applicant guilty

Case 4:05-cv-00762-JFM-JVW Document 3 Filed 04/21/05 Page 4 of 6
5

of the underlying offense.

(3) (A) Before a second or successive application permitted by this

section is filed in the district court. The applicant shall move

in the appropriate court of appeals for an order authorizing

the district court to consider the application.

On March 28, 2005, Roush submitted a prior § 2254 petition to this Court. See

Roush v. White-Roush, Civil No. 4:CV-05-610. By Order dated March 29, 2005,

Roush’s earlier action was dismissed without prejudice to any right he may have to

reassert his present claims in a properly filed civil rights complaint. Based on this

Court’s review of the pending habeas petition and supporting memorandum, those

submissions are identical in all respects to Roush’s prior petition and accompanying

memorandum.

Petitioner has failed to show that his instant claim falls within the statutory

exceptions outlined above. Moreover, there is no indication that Roush applied for

and was granted leave to file a second or successive habeas corpus petition by the

United States Court of Appeals for the Third Circuit. Consequently, under the

requirements set forth in § 2244(b)(2), the instant petition cannot be entertained by this

Court. Consequently,

IT HEREBY ORDERED THAT:

Case 4:05-cv-00762-JFM-JVW Document 3 Filed 04/21/05 Page 5 of 6
6

1. The petition for writ of habeas corpus is dismissed pursuant to 28

U.S.C. § 2244(b)(2).

2. The Clerk of Court is directed to close the case.

3. There is no basis for the issuance of a certificate of appealability.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

Case 4:05-cv-00762-JFM-JVW Document 3 Filed 04/21/05 Page 6 of 6