                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-1994

Dolenc v. Love
Precedential or Non-Precedential:

Docket 93-3625




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Recommended Citation
"Dolenc v. Love" (1994). 1994 Decisions. Paper 192.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/192


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                         _______________

                           No. 93-3625
                         _______________


                       JOHN E. DOLENC, JR.

                                v.

                       WARDEN WILLIAM LOVE,
                                 Appellant

                         _______________


        On Appeal from the United States District Court
           for the Western District of Pennsylvania
                    D.C. Civil No. 93-00862


           Submitted Under Third Circuit LAR 34.1(a)
                        October 31, 1994


          Before:   GREENBERG and McKEE, Circuit Judges
                    and POLLAK*, District Judge

                    (Filed: November 16, 1994)


                                 JOHN E. DOLENC, Jr.
                                 1600 Walters Mill Road
                                 Somerset, PA 15510
                                         Appellee


                                 THOMAS N. FARRELL
                                 Office of District Attorney
                                 401 Allegheny County Courthouse
                                 Pittsburgh, PA 15219
                                         Attorney for Appellant


*.
   Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                        ____________________

                        OPINION OF THE COURT
                        ____________________

POLLAK, District Judge.


          In 1981 John E. Dolenc, Jr., was charged with killing

his wife, Patricia Dolenc, in July of 1975.    The case came on for

trial before a jury in the Court of Common Pleas of Allegheny

County, Pennsylvania.     At the conclusion of the trial, the jury

returned a verdict finding John Dolenc guilty of murder in the

first degree.   On September 21, 1981, Dolenc was sentenced to

life imprisonment.

          Since he was sentenced, Dolenc has challenged his

conviction in the Pennsylvania courts both on direct appeal and

by various collateral proceedings.    In addition, Dolenc has filed

a series of petitions for habeas corpus in the United States

District Court for the Western District of Pennsylvania.     All

Dolenc's attempts to overturn his conviction have been

unsuccessful.
          Now before this court is an appeal by the Commonwealth1

from Judge Standish's order of November 10, 1993, dismissing the

fourth and most recent of Dolenc's federal habeas petitions.     The

fact that the Commonwealth -- not Dolenc -- is appealing the

dismissal of the petition poses the jurisdictional question we

now confront:   Is the Commonwealth, in some legally cognizable

sense, aggrieved by, and hence entitled to seek appellate review

of, Judge Standish's order?   To answer this question, we must

look more closely at the order of dismissal.

          Judge Standish's order adopted "as the opinion of the

court" a report and recommendation filed by Magistrate Judge

Sensenich, on October 13, 1993.   That report and recommendation

came to two conclusions of law:

          First, the report and recommendation rejected the

Commonwealth's submission that Dolenc's fourth habeas corpus

petition challenging the same conviction constituted an abuse of

the writ that precluded access to federal habeas corpus:

Magistrate Judge Sensenich determined that the federal

constitutional claims central to Dolenc's fourth habeas petition

were rooted in a decision of the Pennsylvania Supreme Court,


1
 . The nominal appellant is Warden William Love, the official
who, having custody of John Dolenc, was named as respondent in
Dolenc's petition for habeas corpus.   It is, however, the
Commonwealth of Pennsylvania, rather than Warden Love, that is
the actual adverse party in interest; for that reason, this
opinion, when referring to appellant, speaks of "the
Commonwealth."
Commonwealth v. Myers, 530 Pa. 396, 609 A.2d 162, which was

handed down on May 22, 1992, "after petitioner's previous habeas

petitions were dismissed," and therefore the claims "could

neither have been presented nor addressed previously."

           Second, the report and recommendation went on to

conclude that the new constitutional claims had not been "'fairly

presented'" to the Pennsylvania courts and, in consequence,

Dolenc, not having exhausted available state remedies, was not

yet in a position to present those claims to a federal district

court.

           The Commonwealth now seeks review of Judge Standish's

order dismissing Dolenc's fourth federal petition for habeas

corpus.   On the face of it, the Commonwealth's posture as

appellant is unusual:   having prevailed in the district court,

the Commonwealth would not seem to be so positioned as to be able

to complain of the victory it won.    The Commonwealth is not,

however, complaining about the district court's order, which

dismissed Dolenc's habeas petition.    Rather, what the

Commonwealth is really complaining about is Judge Standish's

adoption of the opinion of Magistrate Judge Sensenich -- or, to
be more precise, the first portion of that opinion:       the ruling

that Dolenc's fourth habeas petition was not an abuse of the writ

precluding Dolenc from seeking federal habeas.    The Commonwealth

fears that the ruling is one which may return to haunt it if

Dolenc, after unsuccessfully exhausting his state remedies,
returns to the district court to seek federal habeas for a fifth

time.   The Commonwealth anticipates that on such a renewed

federal habeas application the Commonwealth's renewed abuse-of-

the-writ plea would necessarily be overcome by a determination

that Judge Standish's adoption of Magistrate Judge Sensenich's

opinion has made rejection of the Commonwealth's abuse-of-the-

writ contention law of the case.

          If the Commonwealth is correct in its prediction that

the opinion would operate as law of the case, the Commonwealth

would appear to be on firm ground in contending that it has

standing to appeal.   This would be so because, although

"[o]rdinarily, a prevailing party cannot appeal from a district

court judgment in its favor," In re DES Litigation, 7 F.3d 20, 23

(2nd Cir. 1993), there are "exceptions to this rule," and "[o]ne

exception arises when the prevailing party is aggrieved by the

collateral estoppel effect of a district court's rulings."    Ibid.

But we think the Commonwealth has magnified the legal momentum of

the portion of the magistrate judge's opinion, adopted as the

opinion of the district court, to which it takes exception.     We

perceive no reason why Judge Standish would be precluded from re-

examining the abuse-of-the-writ issue if Dolenc were again to

petition for federal habeas.   And, a fortiori, this court would
not be bound to acquiesce in the magistrate judge's and district

court's 1993 abuse-of-the-writ ruling if we were in the future
called on to review the district court's disposition of a fifth

federal habeas petition.2

          In sum, we hold that the Commonwealth, having failed to

establish that the action of the district court will tie the

Commonwealth's hands in any potential future phase of this

litigation, is not aggrieved by the district court's order and

hence is without standing to appeal.3   Accordingly, the appeal is

dismissed for lack of jurisdiction.

2
 . In rejecting the Commonwealth's view that law-of-the-case
would insulate the 1993 abuse-of-the-writ ruling from re-
examination in the district court or here, we are not to be
understood as intimating a view that the ruling was incorrect.
Because we conclude that we lack jurisdiction to entertain the
Commonwealth's appeal, we have no authority to consider the
correctness of the ruling.
3
 . Burkett v. Cunningham, 826 F.2d 1208 (3rd Cir. 1987), is not
to the contrary. There we held that a district court's finding
in an earlier habeas proceeding -- a "finding [that] was part of
an order [of dismissal] which was not appealed by the state," id.
at 1218 -- that delay in the state courts was so egregious as to
excuse a federal habeas petitioner from exhausting state
remedies, was "not open to collateral attack in this proceeding."
Ibid. One member of the Burkett court argued in partial dissent
that the state could not have appealed from the prior dismissal.
We rejected that view, but did so on a ground not present in the
case at bar -- namely, that the order nominally dismissing the
petition was, in effect, "a conditional grant of Burkett's writ."
Id. at 1223 n.35. Our rationale was as follows:

             The partial dissent suggests that Blair
          County could not have appealed the order.
          Post at 1230 n.5. However, we believe that
          Blair County had standing to appeal. First,
          it did not, in contrast to the appellant in
          Perez v. Ledesma, 401 U.S. 82, 87 n.3, 91 S.
          Ct. 674, 678 n.3, 27 L.Ed.2d 701 (1971),
          fully prevail as to all appealable aspects of
          the order. The order dismissed Burkett's
          petition only conditionally -- "unless . . .
(..continued)
          Blair County fails to . . . impose any
          appropriate sentence within sixty (60) days"
          -- and ordered Blair County "to act in
          accordance with this directive." Second, the
          district court would have had no
          constitutional authority to enter such an
          order had no violation been at least
          impending. On the other hand, a court must
          grant appropriate relief where an existing
          violation is found.   Indeed, having found a
          violation, there was nothing left to be
          decided in a new petition other than the
          remedy. Unfortunately, however, the district
          court, instead of retaining jurisdiction,
          marked the case "closed." (Obviously the
          district court did not conceive that the
          county, once warned, would not sentence
          Burkett within 60 days). Under these
          circumstances, we read the less-than-pellucid
          order, together with the court's opinion, as
          a conditional grant of Burkett's writ.
