UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HOWARD JONES, :

:

Petitioner : No. 4:CV-10-0898

:

vs. : Petition Filed 04/28/10) 

:

PA ATTORNEY GENERAL, : (Judge Muir)

:

Respondent :

MEMORANDUM AND ORDER

July 6, 2010

Petitioner, Howard Jones, an inmate at the Smithfield

State Correctional Institution, Huntingdon, Pennsylvania,

filed the instant petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254. He challenges his 1972 first degree

murder conviction imposed by the Dauphin County Court of

Common Pleas. (Doc. 1). On June 11, 2010, respondent filed

a motion to dismiss Jones’ petition as a second or successive

petition presented without leave of the Court of Appeals.

(Doc. 8). Having taken judicial notice of related official

court filings,1 the Court will dismiss Jones’ petition for

1

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

of the adjudicated facts and procedural history of Jones’ five

prior petitions for writ of habeas corpus. See infra note 2,

p.2. 

Case 4:10-cv-00898-MM-DB Document 9 Filed 07/06/10 Page 1 of 7
habeas corpus, as it is a second or successive petition

presented without leave of the Court of Appeals.

I. Background

On June 19, 1972, a jury sitting in the Court of Common

Pleas of Dauphin County found Jones guilty of murder in the

first degree. He was subsequently sentenced to imprisonment

for life. While Jones did not pursue any direct appeal of

his conviction, he has filed a number of petitions

challenging the validity of his conviction, including five

petitions for writ of habeas corpus, filed in this Court,

pursuant to 42 U.S.C. § 2254.2 

By Order dated June 2, 2004, this Court dismissed Jones’

fifth petition because 1) it was barred by the one year

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

and 2) the claims in the petition have not been exhausted in

the state courts, are now procedurally defaulted, and Jones

has not presented any sufficient reason to excuse the

2

Petitioner’s habeas corpus actions can be found at Civil

Action Nos. 3:CV-92-0667; 4:CV-95-1402; 4:CV-95-2183; 4:CV-98-

0323; and 03-CV-1017. Jones’ first four habeas corpus actions

were dismissed solely for Jones’ for failure to exhaust state

court remedies. 

2

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default. See Jones v. Gillis, Civil No. 4:CV-03-1017 (M.D.

Pa. June 2, 2004). 

By Order dated January 20, 2005, the United States Court

of Appeals for the Third Circuit declined to issue Jones a

certificate of appealability. Id. 

Presently before the Court is Jones’ sixth habeas

petition challenging his Dauphin County Court of Common Pleas

first degree murder conviction. The Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), in addition to

establishing the one year limitations period that barred

Jones’ fifth 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.

II. 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, 

3

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rather than on the merits. See Slack v. 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 v. 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)). Jones’ fifth 

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 v. 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 v. Harris, CIV.A. 02-6825, 2002 WL 31859440, *3

4

Case 4:10-cv-00898-MM-DB Document 9 Filed 07/06/10 Page 4 of 7
(E.D. Pa. Dec. 20, 2002). As the Second Circuit in

Villanueva 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 Jones’ previously filed a federal habeas corpus

petition challenging his 1972 conviction that was denied “on

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

petition constitutes “a second or successive petition.” As

a result, Jones 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 Jones has

failed to present such authorization, this petition must be

dismissed. This Court lacks jurisdiction to consider Jones's

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.

5

Case 4:10-cv-00898-MM-DB Document 9 Filed 07/06/10 Page 5 of 7
petition for habeas corpus relief and it will be dismissed

without prejudice to petitioner’s right to seek the necessary

authorization from the Third Circuit Court of Appeals to file

a second or successive habeas corpus petition. 

An appropriate Order accompanies this Memorandum Opinion.

Dated: July 6, 2010 s/Malcolm Muir 

MUIR

United States District Judge

Case 4:10-cv-00898-MM-DB Document 9 Filed 07/06/10 Page 6 of 7
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HOWARD JONES, :

:

Petitioner : No. 4:CV-10-0898

:

vs. : Petition Filed 04/28/10) 

:

PA ATTORNEY GENERAL, : (Judge Muir)

:

Respondent :

ORDER

July 6, 2010

For the reasons set forth in the accompanying Memorandum

IT IS HEREBY ORDERED THAT:

1. Respondent’s motion to dismiss (Doc. 8) is

GRANTED. 

2. The petition for writ of habeas corpus

(Doc. 1) is DISMISSED.

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

4. There is no basis for a certificate of

appealability. See 28 U.S.C. § 2253(c).

s/Malcolm Muir 

MUIR

United States District Judge

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