NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MICHAEL LUPKOVICH, :

:

Petitioner, :

:

v. :

:

STATE OF NEW JERSEY, et al., :

:

Respondents. :

 :

Civil Action No. 11-3507 (MLC)

O P I N I O N

APPEARANCES:

MICHAEL V. GILBERTI

EPSTEIN, COHEN & GILBERTI, LLC

21 East Front Street, Suite 210, Red Bank, New Jersey 07701

Attorneys for Petitioner

COOPER, District Judge

Michael Lupkovich filed a Petition for a Writ of Habeas

Corpus, pursuant to 28 U.S.C. § 2254, accompanied by a memorandum

of law and an appendix, challenging a judgment of conviction

filed in New Jersey Superior Court, Monmouth County, on July 30,

1997. Having thoroughly reviewed Petitioner’s submissions and

this Court’s docket, see Lupkovich v. Cathel, No. 04-5399 (FLW)

slip op. (D.N.J. Nov. 14, 2006), certificate of appealability

denied, No. 06-5096 (3d Cir. July 24, 2007), and, for the

following reasons, this Court will dismiss the Petition for lack

of jurisdiction as a successive petition, and deny a certificate

of appealability.

I. BACKGROUND

Petitioner challenges a judgment of conviction filed on July

30, 1997, in New Jersey Superior Court, Monmouth County, Law

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Division, after a jury convicted him of capital murder, aggravated

manslaughter, possession of a handgun for an unlawful purpose and

unlawful possession of a weapon. The Law Division imposed an 1

aggregate sentence of life imprisonment plus 35 years, with 47.5

years of parole ineligibility. On May 1, 1998, the New Jersey

Appellate Division granted Petitioner’s motion for a limited

remand to address whether he was entitled to a new trial based on

a claim that the State had withheld exculpatory evidence. After

conducting remand hearings, the Law Division denied the motion

for a new trial. Petitioner filed a direct appeal, and on

December 18, 2000, the New Jersey Appellate Division affirmed

without discussion. See State v. Lupkovich, No. A-0750-97T4 slip

op. (N.J. App. Div., Dec. 18, 2000). On March 27, 2001, the New

Jersey Supreme Court denied certification. See State v.

Lupkovich, 167 N.J. 637 (2001) (table).

On March 13, 2002, the Law Division filed Petitioner’s pro

se petition for post conviction relief. On October 10, 2002,

through counsel, Petitioner filed an amended petition. After

conducting an evidentiary hearing, the Law Division denied post

conviction relief by Order filed October 25, 2002. Petitioner

appealed, and in an opinion filed May 3, 2004, the Appellate

Division affirmed the order denying post conviction relief. See

 The judgment of conviction is dated and signed by Paul F. 1

Chaiet, J.S.C., on July 25, 1997, and stamped “filed” on July 30,

1997. (Docket Entry No. 1-2, p. 15.)

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State v. Lupkovich, No. A-2906-02T4 slip op. (N.J. App. Div., May

3, 2004). On September 10, 2004, the New Jersey Supreme Court

denied certification. See State v. Lupkovich, 181 N.J. 544

(2004) (table).

On November 1, 2004, Petitioner filed his first § 2254

petition challenging the 1997 conviction in this Court. See

Lupkovich v. Cathel, No. 04-5399 (FLW) (D.N.J. docketed Nov. 3,

2004). After ordering an answer and reply, on November 14, 2006,

Judge Freda L. Wolfson dismissed the petition on the merits and

denied a certificate of appealability. On July 24, 2007, the

United States Court of Appeals for the Third Circuit denied a

certificate of appealability.

On December 20, 2007, Petitioner moved for a new trial based

on newly discovered evidence in the Law Division. (Docket Entry

No. 1-2, p. 34.) By order filed October 10, 2008, Judge Chaiet

denied the motion for a new trial. Petitioner appealed, and on

April 23, 2010, the New Jersey Appellate Division affirmed the

order denying the motion. See State v. Lupkovich, 2010 WL

1657561 (N.J. App. Div., Apr. 23, 2010). On June 30, 2010, the

New Jersey Supreme Court denied certification. See State v.

Lupkovich, 203 N.J. 93 (2010) (table).

On June 17, 2011, through counsel, Petitioner filed his

second § 2254 Petition (“the Petition”) challenging the July 30,

1997, judgment of conviction. This is the Petition currently

before this Court. The Petition does not expressly set forth a

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federal claim, but Petitioner argues that he is entitled to a

writ of habeas corpus under § 2254 because “The Newly-Discredited

Evidence Was Substantial and Unduly Influenced the Jury’s

Findings of Credibility.” (Docket Entry No. 1, p. 19.) 

II. DISCUSSION

A. Jurisdiction

The Court is guided by the statutes governing a district

court’s adjudication of a second or successive § 2254 petition.2

Specifically, § 2244(b)(3)(A) provides: “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.” 28 U.S.C. § 2244(b)(3)(A). Rule 9 3

 Jurisdiction is conferred on district courts to issue “a 2

writ of habeas corpus in behalf of a person in custody pursuant

to the judgment of a State court . . . on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). Although sections

2254 and 2244(b) “refer[] to a habeas ‘application,’ we use the

word ‘petition’ interchangeably with the word ‘application.’” 

Magwood v. Patterson, 130 S.Ct. 2788, 2791 n.1 (2010).

 Once a petitioner moves for authorization to file a second 3

or successive § 2254 application, the Court of Appeals must

decide whether there is a prima facie showing that the

application satisfies the substantive requirements of §

2244(b)(2). See 28 U.S.C. § 2244(b)(3)(D). See Magwood, 130

S.Ct. at 2796 (“If an application is ‘second or successive,’ the

petitioner must obtain leave from the Court of Appeals before

filing it with the district court”). Section 2244(b)(2) provides:

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:

(continued...)

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of the Rules Governing Section 2254 Proceedings, entitled “Second

or Successive Petitions,” similarly provides: “Before

presenting a second or successive petition, the petitioner must

obtain an order from the appropriate court of appeals authorizing

the district court to consider the petition as required by 28

U.S.C. § 2244(b)(3) and (4).” 28 U.S.C. § 2254 Rule 9.

Thus, § 2244(b)(3)(A) establishes that a District Court

lacks jurisdiction over a second or successive § 2254 petition,

absent authorization from the Court of Appeals. See Burton v.

Stewart, 549 U.S. 147, 152 (2007) (“[B]ecause the 2002 petition

is a ‘second or successive’ petition that Burton did not seek or

obtain authorization to file in the District Court, the District

Court never had jurisdiction to consider it in the first place”).

The Petition currently before this Court is a “second or

successive” habeas application for which Petitioner has not

(...continued) 3

(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 exercise of

due diligence; and

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

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing

evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant

guilty of the underlying offense.

28 U.S.C. § 2244(b)(2).

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sought or obtained authorization from the Court of Appeals to

file in this Court. Petitioner’s first § 2254 petition was 4

denied on the merits. Petitioner “twice brought claims 5

contesting the same custody imposed by the same judgment of a

state court. As a result, . . . he was required to receive

authorization from the Court of Appeals before filing his second

challenge. Because he did not do so, [this] Court [is] without

jurisdiction to entertain it.” Burton, 549 U.S. at 153.

B. Dismissal or Transfer

“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

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

U.S.C. § 1631.” Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.

2002). The Petition before this Court does not argue that

Petitioner satisfies the gatekeeping requirements of 28 U.S.C. §

2244(b)(2), nor does it mention these requirements or make a

prima facie showing. This Court accordingly declines to transfer

the Petition to the Third Circuit as an application for

 The Petition does not assert that the Court of Appeals has 4

granted authorization pursuant to 28 U.S.C. § 2244(b). This

Court has been unable to locate any request for authorization

filed by Petitioner in the Third Circuit Court of Appeals.

 A habeas petition is adjudicated on the merits when “a 5

determination [was made] that there exist or do not exist grounds

entitling a petitioner to habeas corpus relief under 28 U.S.C. §

2254(a) and (d).” Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005).

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authorization to file a second or successive petition, and will

dismiss the Petition for lack of jurisdiction. Cf. Hatches v.

Schultz, 381 Fed.Appx. 134, 137 (3d Cir. 2010) (“In deciding that

it would not be in the interest of justice to transfer the

petition to the Fourth Circuit, the District Court properly

considered whether Hatches had alleged facts sufficient to bring

his petition within the gatekeeping requirement of § 2255

permitting ‘second or successive’ petitions based upon newly

discovered evidence or a new rule of constitutional law”).

C. Certificate of Appealability

An appeal may not be taken to the court of appeals from a

final order in a § 2254 proceeding unless a judge issues a

certificate of appealability on the ground that “the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This Court denies a certificate

of appealability because jurists of reason would not find it

debatable that dismissal of the Petition for lack of jurisdiction

is correct. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

III. CONCLUSION

Based on the foregoing, the Court dismisses the Petition for

a Writ of Habeas Corpus for lack of jurisdiction and denies a

certificate of appealability.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: July 5, 2011

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