Benchoff v. Colleran

• Decision Date: 21 April 2005
• Docket Number: No. 03-3635.,03-3635.
• Citation: 404 F.3d 812
• Parties: Robert BENCHOFF, Appellant v. Raymond COLLERAN.
• Court: U.S. Court of Appeals — Third Circuit

404 F.3d 812

Robert BENCHOFF, Appellant v. Raymond COLLERAN.

No. 03-3635.

United States Court of Appeals, Third Circuit.

Argued February 8, 2005.

Filed April 21, 2005.

Gerald J. Pappert, Michael L. Harvey (argued), Calvin R. Koons, John G. Knoor, III, Office of the Attorney General, Litigation Section, Harrisburg, PA, for Appellee.

R. Damien Schorr (argued), Pittsburg, PA, for Appellant.

Before: BARRY, FUENTES, and BECKER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Robert Benchoff appeals from an order of the District Court denying his petition for a writ of habeas corpus claiming that he was denied due process by the Pennsylvania Board of Probation and Parole (the "Parole Board") when it failed to give a meaningful statement of reasons for denial of his parole. The determinative question on appeal, however, is whether a petition challenging the administration of a petitioner's sentence, such as Benchoff's parole claim, should be considered a "second or successive" petition over which the District Court lacked subject matter jurisdiction under 28 U.S.C. § 2244, if the petitioner had filed a prior petition that challenged the underlying conviction or sentence.

Examples of challenges to the administration of a sentence are those claims that raise issues relating to conditions of confinement, parole procedures, or calculation of good-time credits. In this case, Benchoff filed his first federal habeas corpus petition, which made claims related to the conduct of his trial and his conviction, only several months before filing the instant petition. We hold that because Benchoff's parole claim had ripened by that time, and he had no valid excuse for failing to raise the claim in his first petition, the District Court lacked subject matter jurisdiction and hence should have dismissed this petition as "second or successive" as required by § 2244. In making this determination, we will consult the abuse of the writ jurisprudence, which predated the passage of § 2244, concluding that the doctrine retains vitality as a tool for interpreting the term "second or successive" under § 2244.

We also reject Benchoff's claim that he was not required to raise his parole claim in his first habeas petition because he had not yet exhausted the claim in the Pennsylvania courts. We will therefore dismiss the appeal and remand to the District Court with instructions to dismiss the petition.

I. FACTS AND PROCEDURAL HISTORY

Benchoff was convicted of burglary, criminal trespass, simple assault, and two counts of interference with the custody of children in the Court of Common Pleas of Franklin County, Pennsylvania, on August 15, 1995. He first became eligible for parole from his sentence on December 16, 2000.

On June 27, 2002, Benchoff filed a federal habeas petition raising exhausted and unexhausted claims relating to the conduct of his criminal trial. The District Court denied the petition and no appeal was taken. Before any decision was rendered on his habeas petition, Benchoff filed the present federal habeas petition pursuant to 28 U.S.C. § 2254.¹ The gravamen of Benchoff's current petition is that the Parole Board violated his right to due process by failing to provide him with an adequate statement of reasons for denying him parole.

Benchoff was first reviewed for parole in 2000. The notice of denial of parole stated only that the Board "has determined that the fair administration of justice cannot be achieved through your release on parole." In 2001 and 2002, Benchoff was again reviewed and again denied for parole. Each time, the notice of denial used the same "fair administration of justice" language. Benchoff then filed this federal habeas petition. Approximately two weeks after Benchoff filed this petition, the Parole Board modified its 2002 decision and provided Benchoff with additional information regarding the reasons for denial of parole.²

Since filing this petition, Benchoff has filed two more federal habeas petitions (on May 7, 2003 and July 25, 2003). Each of these petitions claims that it was a violation of the ex post facto clause of the United States Constitution for the Parole Board to use the 1996 amendment to Pennsylvania's parole procedures in making Benchoff's parole decision because the 1996 amendment was not in effect at the time of Benchoff's 1995 conviction.

The Magistrate Judge recommended that the present petition and the May 7, 2003 petition be granted and suggested that the Parole Board should be required to provide Benchoff with a statement of reasons for denial of parole. The District Court, however, declined to adopt the Magistrate Judge's recommendations, concluding that Benchoff did not have a due process right to a statement of reasons. The District Court held that a petitioner has no procedural right to a statement of reasons for denial of parole because neither federal nor Pennsylvania state law creates a substantive liberty interest in parole. The District Court did not address the May 7, 2003 petition's ex post facto claims. Benchoff has appealed the District Court's denial of his habeas petition only as to the due process parole claim.³

II. DISCUSSION

A.

As noted above, notwithstanding the fact that Benchoff had already filed a prior petition for habeas corpus, the District Court decided this case on the merits without addressing the threshold question whether Benchoff's habeas petition should have been dismissed as a "second or successive" petition pursuant to 28 U.S.C. § 2244. Neither party has raised the successiveness issue in the District Court or on appeal.

Nevertheless, this Court must determine whether Benchoff's habeas petition was "second or successive" within the meaning of 28 U.S.C. § 2244(b), because § 2244 implicates both our appellate jurisdiction and the District Court's subject matter jurisdiction. See Robinson v. Johnson, 313 F.3d 128, 138 (3d Cir.2002) ("Most courts that have considered the issue treat the successiveness issue as comparable to the defense that the court lacks jurisdiction of the subject matter."); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a case under review, even though the parties are prepared to concede it.") (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934) (internal quotation marks omitted)). Therefore, it is incumbent upon us to address the successiveness issue sua sponte to ensure that we and the District Court have jurisdiction to hear the merits of Benchoff's petition.⁴

Section 2244, a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), establishes the procedural and substantive requirements which govern "second or successive" habeas petitions. See In re Minarik, 166 F.3d 591, 599-600 (3d Cir.1999). As a procedural matter, § 2244(b)(3)(A) establishes a "gatekeeping" mechanism that requires a prospective applicant to "file in the court of appeals a motion for leave to file a second or successive habeas application in the district court." Felker v. Turpin, 518 U.S. 651, 657, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). 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. 28 U.S.C. § 2244(b)(3)(D).

Section 2244(b)(2) provides the relevant substantive standard, which requires the dismissal of a "second or successive" habeas application 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 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.

Unless both the procedural and substantive requirements of § 2244 are met, the District Court lacks authority to consider the merits of the petition.

B.

Section 2244's strict procedural regime and substantive standards only apply if Benchoff's current petition is "second or successive" within the meaning of the statute. Section 2244, however, does not define what constitutes a "second or successive" petition. Prior to the passage of AEDPA, we employed a collection of equitable principles known as the "abuse of the writ" doctrine to determine when a petition would be deemed abusive and thus barred from consideration on its merits. United States v. Roberson, 194 F.3d 408, 410 (3d Cir.1999). Under this doctrine, a petition would be considered an abuse of the writ, inter alia, where the subsequent petition raised a habeas claim which could have been raised in an earlier petition and there was no legitimate excuse for failure to do so. See McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

The passage of AEDPA, however, has cast doubt on whether we should continue to employ "abuse of the writ" principles. In the wake of AEDPA, this Court has yet to decide the abuse of the writ doctrine's ongoing validity in this context. Indeed, in United States v. Roberson, we used language that suggests that AEDPA had completely superseded the abuse of the writ doctrine. 194 F.3d at 411 ("AEDPA ... replaced the abuse-of-the-writ doctrine articulated in McCleskey."). In Roberson, the defendant did not submit his second habeas petition to us prior to filing his petition with the District Court, as...