NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT LEE TERRY :

Civil Action No. 11-0733 (CCC)

Petitioner, :

v. : OPINION

GREG BARTKOWSKI, et al., :

Respondents. :

APPEARANCES:

Petitioner pro se

Robert Lee Terry

New Jersey State Prison

P.O. Box 861

Trenton, NJ 08625

CECCHI, District Judge

Petitioner Robert Lee Terry, a prisoner currently confined

at New Jersey State Prison in Trenton, New Jersey, has submitted

a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 and an application to proceed in forma pauperis pursuant 1

 Section 2254 provides in relevant part: 1

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of

the United States.

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to 28 U.S.C. § 1915(a). The respondents are Greg Bartkowski and

New Jersey State Prison.

Based on his affidavit of indigence, the Court will grant

Petitioner’s application to proceed in forma pauperis. Because

it appears from a review of the Petition that Petitioner is not

entitled to issuance of the writ, the Court will dismiss the

Petition. See 28 U.S.C. § 2243.

I. BACKGROUND

On June 26, 1996, following a five-day trial in the Superior

Court of New Jersey, Law Division, Union County, a jury convicted

Petitioner of first degree murder, fourth degree aggravated

assault, second degree possession of a weapon for an unlawful

purpose, and third degree unlawful possession of a weapon. 

Immediately thereafter, Petitioner was tried before the same jury

on a separate charge of possession of a weapon by a convicted

felon and was found guilty. On October 18, 1996, the trial court

entered judgement sentencing Petitioner to an aggregate term of

life imprisonment plus a consecutive term of fifteen and one-half

years’ imprisonment, with a forty-three year parole disqualifier. 

See Terry v. Cathel, Civil No. 05-4644 (D.N.J.), 2006 WL 2528548

(D.N.J. Aug. 31, 2006). On direct appeal, the Superior Court,

Appellate Division, affirmed the judgments of conviction, but

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remanded for resentencing. The Supreme Court of New Jersey 2

denied certification on October 15, 1998. Petitioner did not

petition the United States Supreme Court for a writ of

certiorari. Thereafter, in state court, Petitioner pursued two

separate petitions for post-conviction relief.

Petitioner filed his first federal petition for habeas

corpus relief on September 18, 2005. See Terry v. Cathel, Civil

No. 05-4644 (D.N.J.). On August 31, 2006, this Court entered its

Opinion and Order dismissing the Petition with prejudice as timebarred. Terry v. Cathel, 2006 WL 2528548 (D.N.J. Aug. 31, 2006). 

On March 22, 2007, the U.S. Court of Appeals for the Third

Circuit denied Petitioner’s request for a certificate of

appealability. See Terry v. Cathel, No. 06-4212 (3d Cir.). On

November 13, 2007, the Supreme Court of the United States denied

the petition for writ of certiorari. See Terry v. Ricci, No. 07-

6335, 552 U.S. 1024 (U.S.).

Petitioner subsequently filed an application with the Court

of Appeals for the Third Circuit, for leave to file a second or

successive federal habeas corpus petition on grounds of actual

innocence, which was denied because all claims had been raised in

Petitioner’s previous federal habeas petition. In re Terry, No.

08-1795 (3d Cir. May 22, 2008).

 The Appellate Division directed that the parole 2

disqualifier be limited to 30 years. Petitioner did not appeal

the resentencing.

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Thereafter, Petitioner pursed additional unsuccessful state

petitions for post-conviction relief. See State v. Terry, 2010

WL 4068485 (N.J. Super. App. Div. Aug. 2, 2010) (also attached as

an exhibit to this Petition), certif. denied, 205 N.J. 78

(2011).3

This Petition, dated January 21, 2011, followed. Here,

Petitioner asserts again that he is actually innocent of the

crime of murder, that his trial counsel provided ineffective

assistance, and that the sentence is illegal.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in

relevant part as follows:

A court, justice or judge entertaining an

application for a writ of habeas corpus shall forthwith

award the writ or issue an order directing the

respondent to show cause why the writ should not be

granted, unless it appears from the application that

the applicant or person detained is not entitled

thereto.

Thus, “Federal courts are authorized to dismiss summarily

any habeas petition that appears legally insufficient on its

face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). See also

 This Court will take judicial notice of the dockets of 3

other courts in cases related to this Petition. See Fed.R.Evid.

201; Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping

Group Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999) (federal court,

on a motion to dismiss, may take judicial notice of another

court’s opinion, not for the truth of the facts recited therein,

but for the existence of the opinion, which is not subject to

reasonable dispute over its authenticity).

4

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Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts (“If it plainly appears from the petition

and any attached exhibits that the petitioner is not entitled to

relief in the district court, the judge must dismiss the petition

... .” (emphasis added)).

Moreover, “[h]abeas corpus petitions must meet heightened

pleading requirements.” McFarland v. Scott, 512 U.S. at 856. A

petition must “specify all the grounds for relief” and must set

forth “facts supporting each ground.” See Rule 2(b) of the Rules

Governing Section 2254 Cases in the United States District

Courts.

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

A pro se habeas petition and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of

the petition that the petitioner is not entitled to relief. See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773

5

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F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 2254, 2255.

III. ANALYSIS

Federal law imposes strict limitations on a United States

District Court’s consideration of “second or successive” habeas

petitions. 28 U.S.C. § 2244(b)(1)-(3).

First, any claim that has already been adjudicated in a

previous petition must be dismissed. § 2244(b)(1). 

Second, any claim that has not already been adjudicated

must be dismissed unless it relies on either a new and

retroactive rule of constitutional law or new facts

showing a high probability of actual innocence. 

§ 2244(b)(2). Third, before the district court may

accept a successive petition for filing, the court of

appeals must determine that it presents a claim not

previously raised that is sufficient to meet

§ 2244(b)(2)'s new-rule or actual-innocence provisions. 

§ 2244(b)(3). 

Gonzalez v. Crosby, 545 U.S. 524, 529-530 (2005).

If a second or successive petition is filed in the district

court without such an order from the appropriate court of

appeals, the district court may dismiss for want of jurisdiction

or “shall, if it is in the interest of justice, transfer such

action ... to any other such court in which the action ... could

have been brought at the time it was filed.” 28 U.S.C. § 1631. 

See also Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002)

(“When a second or successive habeas petition is erroneously

filed in a district court without the permission of a court of

appeals, the district court’s only option is to dismiss the

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petition or transfer it to the court of appeals pursuant to 28

U.S.C. § 1631.”).

The term “second or successive” is not defined in the

statute, but it is well settled that the phrase does not simply

“refe[r] to all § 2254 applications filed second or successively

in time.” Panetti v. Quarterman, 551 U.S. 930, 944 (2007). The

term has been the subject of substantial recent discussion in

Supreme Court decisions. See, e.g., Panetti v. Quarterman, 551

U.S. 930 (2007) (creating an exception for a second application

raising a claim that would have been unripe had the petitioner

presented it in his first application); Stewart v. MartinezVillareal, 523 U.S. 637 (1998) (treating a second application as

part of a first application where it was premised on a newly

ripened claim that had been dismissed from the first application

as premature); Slack v. McDaniel, 529 U.S. 473 (2000) (declining

to apply the bar of § 2244(b) to a second application where the

first application was dismissed for lack of exhaustion).

This Court finds that this Petition is a “second or

successive” petition over which it lacks jurisdiction. See, 4

e.g., Stokes v. Gehr, 399 Fed.Appx. 697, 699 n.2 (3d Cir. 2010)

(quoting McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)

(“We therefore hold that dismissal of a section 2254 habeas

 Because this Petition is “second or successive” there is 4

no need to give the notice otherwise required by Mason v. Meyers,

208 F.3d 414 (3d Cir. 2000). 

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petition for failure to comply with the statute of limitations

renders subsequent petitions second or successive for purposes of

the AEDPA....”)). This Court further finds that it is not in the

interests of justice to transfer this action to the Court of

Appeals for the Third Circuit, pursuant to 28 U.S.C. § 1631, as

the Court of Appeals has already declined to grant Petitioner

leave to proceed with a second or successive petition. 

Accordingly, the Petition will be dismissed for lack of

jurisdiction.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken from a final order in a proceeding under 28 U.S.C. § 2254. 

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). 

“When the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue when the prisoner shows,

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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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, jurists of reason would not find it debatable whether

this Court is correct in its procedural ruling. No certificate

of appealability shall issue.

V. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed as second or successive. An appropriate order follows.

 s/Claire C. Cecchi 

CLAIRE C. CECCHI

United States District Judge

Dated: October 28, 2011

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