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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAY V. YUNIK, )

Petitioner, ) C.A. No. 08-304 Erie

)

v. )

) District Judge McLaughlin

MICHAEL HARLOW, et al., ) Magistrate Judge Baxter

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

Petitioner, Jay V. Yunik, is serving a judgment of sentence imposed on August 29, 2000,

by the Court of Common Pleas of Crawford County at Criminal Docket No. CP-20-CR-0001000-

1999. He has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 attacking

that judgment of sentence. [Document # 9]. The petition is a second or successive federal habeas

petition challenging that judgment of sentence. Because he did not receive from the Third

Circuit Court of Appeals an order authorizing this Court to consider this petition, as required by

28 U.S.C. § 2244(b)(3)(A), the Court recommends that the petition be dismissed for lack of

jurisdiction and that a certificate of appealability be denied. 

II. REPORT

A. Relevant Factual and Procedural History

Petitioner was charged with two counts of rape and numerous related offenses on August

20, 1999. The victim was his thirteen-year-old step grandchild. Petitioner, represented by

Edward Hathaway, Esq., appeared before the state court on June 6, 2000, and tendered a plea of

guilty to one count of rape. New counsel J. Wesley Rowden, Esq., appeared on Petitioner's

behalf at sentencing on August 29, 2000, at which time a 4 1⁄2 to 10 year sentence was imposed. 

On January 28, 2002, following a hearing, the Court of Common Pleas denied Petitioner's

motion for collateral relief under the Post Conviction Relief Act ("PCRA"), 42 PA.CONS.STAT.

§ 9541 et seq. The Superior Court affirmed on October 24, 2002, and the Pennsylvania Supreme

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Court denied his petition for allowance of appeal on April 9, 2003.

Next, Petitioner filed a pro se petition for writ of habeas corpus with this Court in which

he challenged the state judgment of sentence imposed at Criminal Docket No. CP-20-CR0001000-1999. That petition was docketed as Yunik v. Colleran, et al., Docket No. 1:03-cv-349

(W.D. Pa.). On December 29, 2004, this Court dismissed the petition with prejudice on the basis

that Petitioner's claims were either procedurally defaulted or without merit. On May 5, 2005, the

Third Circuit Court of Appeals denied Petitioner's request for a certificate of appealability. Yunik

v. Colleran, et al., Docket No. 05-1434 (3d Cir.). 

A review of the Court of Common Pleas' docket sheet, which is available online and of

which this Court shall take judicial notice, shows that Petitioner has made various additional

attempts in state court for relief from his judgment of sentence, all of which have been

unsuccessful. He also filed another federal habeas at Yunik v. Slowitsky, et al., Docket No.

1:07-cv-232 (W.D. Pa.), which the undersigned has also recommended be dismissed for the same

reasons set forth herein. In the instant federal habeas petition, he raises various errors

challenging the sentence imposed by the Court of Common Pleas. 

B. Discussion 

Because this petition is a second or successive federal habeas corpus petition that

Petitioner has filed in which he challenges his judgment of sentence at Criminal Docket No. CP20-CR-0001000-1999, it is subject to the authorization requirements set out at 28 U.S.C.

§ 2244(b), a provision AEDPA. In pertinent part, AEDPA mandates that before filing a second

or successive habeas corpus petition, a petitioner must obtain an order from the court of appeals

authorizing the district court to consider the petition. 28 U.S.C. §2244(b)(3)(A). Once a

petitioner moves for authorization to file a second or successive petition, a three-judge panel of

the court of appeals must decide within thirty days whether there is a prima facie showing that

the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). 

See U.S.C. §2244(b)(3)(C). AEDPA's allocation of "gatekeeping" responsibilities to the courts

of appeals has divested district courts of jurisdiction over habeas petitions that are second or

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successive filings. Burton v. Stewart, 549 U.S. 147 (2007). 

A review of the computerized dockets of the Third Circuit Court of Appeals establishes

that Petitioner has neither sought nor received permission to file a second or successive petition. 

Therefore, the instant habeas petition must be dismissed because this Court lacks jurisdiction. 

Burton, 549 U.S. at 152-54. 

C. Certificate of Appealability

Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a

certificate of appealability for appellate review of a district court's disposition of a habeas

petition. It provides that "[a] certificate of appealability may issue...only if the applicant has

made a substantial showing of the denial of a constitutional right." In Slack v. McDaniel, 529

U.S. 473, 474 (2000), the Supreme Court stated that "[w]hen the district court denies a habeas

petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a

[certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling." Applying this standard here, jurists of reason would not find it debatable

whether the instant petition is a second or successive petition. Accordingly, a certificate of

appealability should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Petition for Writ of

Habeas Corpus be dismissed and that a certificate of appealability be denied. 

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.D.2 of the Local Civil Rules, Petitioner is allowed to file objections in accordance with the

schedule established in the docket entry reflecting the filing of this Report and Recommendation. 

Failure to file timely objections may constitute a waiver of some appellate rights. See Nara v. 

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Frank, 488 F.3d 187 (3d Cir. 2007).

 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: April 21, 2010

cc: The Honorable Sean J. McLaughlin

United States District Judge

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