                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2009

DiVentura v. Wynder
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4341




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http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1513


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                                     NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 07-4341


          MITCHELL D. DIVENTURA,

                              Appellant
                         v.

    JAMES WYNDER, SUPERINTENDENT,
    STATE CORRECTIONAL INSTITUTION
           AT DALLAS, ET AL.

  On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
           District Court No. 07-cv-02846
   District Judge: The Honorable John R. Padova



                   No. 07-4342


          MITCHELL D. DIVENTURA,

                              Appellant

                         v.

JOHN MORGANELLI, ESQ., DISTRICT ATTORNEY
  NORTHAMPTON COUNTY, PENNSYLVANIA

  On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
           District Court No. 07-cv-03975
   District Judge: The Honorable John R. Padova


 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                       April 14, 2009

                         Before: McKEE, SMITH, Circuit Judges
                             and STEARNS, District Judge*

                                  (Filed: April 21, 2009)


                                         OPINION


SMITH, Circuit Judge.

       Mitchell D. Diventura was convicted by a jury in 1977 of the first degree murder

of his wife. On direct appeal, the Superior Court of Pennsylvania concluded that he had

been denied the effective assistance of trial counsel because of counsel’s failure to request

a jury instruction on involuntary manslaughter. Commonwealth of Pennsylvania v.

Diventura, 411 A.2d 815, 818 (Pa. Super. Ct. 1979), aff’d 439 A.2d 1154 (Pa. 1982). On

retrial, a jury again convicted Diventura of first degree murder, and he was sentenced to

life imprisonment. Diventura did not file a direct appeal.

       Thereafter, he filed a pro se petition for relief under the Pennsylvania Post

Conviction Hearing Act (PCHA), which has since been repealed and replaced with the

Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §§ 9541-9546. According to

Diventura, he withdrew his PCHA petition without prejudice pursuant to an agreement

with the prosecution by which he would receive letters from the trial judge and the

prosecutor in support of his pending application for executive clemency from the



       *
       The Honorable Richard G. Stearns, District Judge for the United States District
Court of Massachusetts, sitting by designation.

                                              2
prosecutor and the trial judge. When the Governor of Pennsylvania denied Diventura’s

application for clemency, he filed a motion to reinstate his PCHA petition. Despite the

fact that he had withdrawn his PCHA without prejudice, the trial court denied

reinstatement. Thereafter, Diventura filed a PCRA, which was rejected by the trial court.

       Diventura’s first petition for habeas corpus under 28 U.S.C. § 2254 followed in

1995. Diventura v. Stepniak, No. 95-CV-0443, 1996 WL 107852, at *1 (E.D. Pa. March

11, 1996). The District Court denied the petition. Thereafter, Diventura filed a third

PCRA petition in June of 1996. This was rejected by both the state trial and appellate

courts. Commonwealth v. Diventura, 734 A.2d 397, 398 (Pa. Super. Ct. 1999). A fourth

PCRA petition, filed in October of 1998, met a similar fate. Id.

       Diventura applied for executive clemency in 2003. This time he was unable to

obtain a letter of support from the District Attorney. After the Board of Pardons denied

Diventura’s application, Diventura sought relief in the Pennsylvania Superior Court,

alleging that the Commonwealth breached the 1987 agreement by failing to support his

most recent clemency application, and that his right to file a direct appeal should be

granted nunc pro tunc. The application was denied, and the Pennsylvania Supreme Court

affirmed.

       Diventura turned to the federal district court again, filing a pro se “Motion for

Equitable Relief in the Exercise of this Court’s Inherent Article III Powers and/or for

Relief from Judgment 28 U.S.C. Rule 60(b).” In addition to Diventura’s pro se motion,

counsel filed a “Complaint for Equitable Relief Pursuant to Article III, [the] U.S.

Constitution and Fed. R. Civ. P. 60(b)(6).” Diventura’s motion and the counseled

                                              3
complaint alleged that he had withdrawn his PCHA petition without prejudice as part of

an agreement with the Commonwealth to support his application for clemency. He

asserted that the District Attorney’s opposition to his clemency application was a breach

of the agreement entered into in 1987 and he prayed for reinstatement of his original

PCHA petition so that he could litigate the issues which would have been litigated had no

agreement been made. According to Diventura, reinstatement of his PCHA would

remedy a breach of an agreement that “hoodwinked [him] out of his constitutional rights

to appeal.”

       The District Court construed the pro se motion and the counseled complaint as

habeas corpus petitions seeking the reinstatement of his PCHA petition and dismissed

them as unauthorized second or successive applications pursuant to § 2244(b)(1) of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). A motions panel of

this Court granted a certificate of appealability “on the jurisdictional and/or procedural

question whether the District Court erred in applying 28 U.S.C. § 2244(b) to bar

consideration on the merits of [Diventura’s] pro se motion . . . and counseled complaint.”1

The order identified the “‘valid’ underlying constitutional claim” as whether Diventura

“was induced by the Commonwealth to waive a remedy that could have restored his right

to a direct appeal by a promise, since broken, to recommend clemency.” Neither party,




       1
       We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Our review regarding
exhaustion and procedural default is plenary. Fahy v. Horn, 516 F.3d 169, 179 (3d Cir.
2008).

                                              4
however, addressed whether § 2244(b) was properly applied.2

       The AEDPA established new procedural and substantive requirements for habeas

petitions. One of the new procedural hurdles was the requirement in § 2244(b) that a

second or successive petition must satisfy certain criteria. 28 U.S.C. § 2244(b).

Although this gatekeeping provision seems to apply to Diventura’s motion and complaint

filed in 2007, we must be mindful that Diventura’s initial § 2254 habeas petition was filed

in 1995, before AEDPA was enacted. Because application of § 2244(b) would have a

retroactive effect upon Diventura if it foreclosed habeas review that would have been

available under the pre-AEDPA abuse of the writ doctrine, In re Minarik, 166 F.3d 591,

602 (3d Cir. 1999), we must apply pre-AEDPA law and determine whether Diventura’s


       2
        Section 2244(b) provides:

       (1) A claim presented in a second or successive habeas corpus application
       under section 2254 that was presented in a prior application shall be
       dismissed.
       (2) 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—
              (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).

                                             5
claim was raised in an earlier habeas petition. If so, the claim would have been barred

and we may apply § 2244(b)’s gatekeeping provisions to Diventura’s most recent filings.

If Diventura’s claim is new, however, we must determine whether Diventura has

demonstrated cause and prejudice for failing to present it in the state court. See

McCleskey v. Zant, 499 U.S. 467, 494 (1991).3 “In the absence of such a showing,

however, . . . the AEDPA standard must be applied . . . .” Minarik, 166 F.3d at 602.

       Diventura’s claim, that as a result of agreeing to withdraw his PCHA petition he

“was hoodwinked out of his constitutional rights to appeal,” is new. It was not presented

in his PCHA petition, or in any of the collateral attacks he has filed.

       Under pre-AEDPA law, he may proceed with this new claim if he demonstrates

cause and prejudice for failing to raise it in his earlier petition. McCleskey, 499 U.S. at

494.

       [T]he cause standard requires the petitioner to show that some objective
       factor external to the defense impeded counsel’s efforts to raise the claim in
       state court. Objective factors that constitute cause include interference by
       officials that makes compliance with the State’s procedural rule
       impracticable, and a showing that the factual or legal basis for a claim was
       not reasonably available to counsel.

Id. Diventura asserts that he was prevented from raising this claim in his earlier petitions



       3
        The cause and prejudice standard also may be satisfied if the petitioner can
demonstrate that “a fundamental miscarriage of justice would result from a failure to
entertain the claim.” McCleskey, 499 U.S. at 495. This requires a showing that a
“constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (internal citation and quotation
marks omitted). No such claim has been pressed here, and we are persuaded by the
District Court’s analysis in Diventura’s first § 2254 petition that Diventura cannot
establish a claim of actual innocence. Diventura, 1996 WL 107852, at *7-9.

                                              6
because of the agreement he made with the prosecutor in 1987 to withdraw his PCHA

petition in exchange for the support of his clemency application by the trial judge and the

prosecutor, and that it was only after the District Attorney refused in 2004 to support his

clemency application that this claim was ripe.

       We are not persuaded. Even if we assume that the agreement alleged by Diventura

existed and in some way interfered with the restoration of Diventura’s right to file a direct

appeal, he cannot show that the factual basis for this ground for relief was not reasonably

available prior to the District Attorney’s refusal in 2004 to support his application for

clemency. The state court docket indicates that after Diventura’s first application for

clemency was denied in 1990, Diventura promptly filed a petition to reinstate his PCHA

petition. Contrary to the alleged agreement to withdraw the petition without prejudice,

the trial court denied the petition for reinstatement. This was a breach of the agreement

that he would be able to reinstate his PCHA petition (which, if successful, would have

allegedly restored his right to file a direct appeal). As a result of this breach, Diventura

had an opportunity at that point to file an appeal to the Superior Court, raising this very

ground for relief. He did not. A21.

       In short, Diventura cannot establish cause under pre-AEDPA law for failing to

raise this claim in state court. Accordingly, we must apply AEDPA’s gatekeeping

provision in § 2244(b). Minarik, 166 F.3d at 602.

       Section 2244(b) bars the filing of a second or successive petition unless it meets

certain requirements. 28 U.S.C. § 2244(b). In Gonzalez v. Crosby, 545 U.S. 524 (2005),

the Supreme Court instructed that a motion under Federal Rule of Civil Procedure 60(b)

                                              7
should be treated as a second or successive habeas petition for purposes of § 2244(b) if it

“assert[s] a federal basis for relief from a state court’s judgment of conviction.” Id. at

530. As an example of a Rule 60(b) motion that qualified as a successive petition, the

Gonzalez Court cited a motion that sought leave to add a claim of constitutional error that

had been omitted from an earlier petition. 545 U.S. at 531.

       Here, Diventura’s motion and complaint seek the reinstatement of his PCHA

petition as a means of restoring his right to file a direct appeal. This constitutional ground

for relief, however, was omitted from his PCHA petition, as well as his PCRA petitions

and his initial § 2254 petition. Under Gonzalez, a motion seeking to add a ground for

relief should be treated as a successive habeas petition. 545 U.S. at 531. Because these

successive petitions cannot satisfy § 2244(b)(2)’s requirements, we will affirm the

District Court’s dismissal of Diventura’s pro se motion and counseled complaint.3




       3
        We have considered the other arguments raised in Diventura’s appellate brief and
find them lacking in merit.

                                              8
