Brian Tyson v. JEFFREY BEARD, ET AL. Appeal from the United States District Court for the Eastern…

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1891
BRIAN TYSON,
Appellant
v.
JEFFREY BEARD, ET AL.
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 06-cv-00290)
District Judge: Hon. Mary A. McLaughlin
Submitted pursuant to Third Circuit LAR 34.1(a)
December 12, 2008
Before: McKEE, SMITH and ROTH,
Circuit Judges
(Opinion filed: September 15, 2009)
OPINION
McKEE, Circuit Judge.
Brian Tyson, a state prisoner, appeals the district court’s dismissal without
prejudice of the habeas petition he filed pursuant to 28 U.S.C. § 2254. The district court
concluded that it had no jurisdiction because it was an unauthorized second or successive
petition. For the reasons that follow, we disagree and we will therefore reverse and
remand for further proceedings.

-- 1 of 13 --

2
I.
Because we write primarily for the parties, we will recite only so much of the facts
and procedural history of this case as are necessary for the disposition of this appeal.
While intricate procedural histories are not infrequent in federal review of state
convictions, the procedural labyrinth formed by this petitioner’s attempt to get federal
habeas review is as intricate and involved as any we have seen.
On September 17, 1997, at approximately 9:30 p.m., Tyson fatally shot Damon
Millner in the chest. A state jury thereafter convicted Tyson of third-degree murder and
possessing an instrument of a crime, and he was sentenced to thirty years imprisonment
for the murder conviction and a concurrent term of one to two years for possessing an
instrument of a crime.
A. Direct Appeal in State Court.
Tyson appealed his convictions to the Pennsylvania Superior Court on February
20, 2001. After several years in which Tyson filed repeated petitions and other motions,
the Superior Court affirmed his convictions by an unpublished opinion dated January 24,
2004. Commonwealth v. Tyson, 847 A.2d 762 (Pa. Super. 2004) (Table) (No. 691 EDA
2001)(en banc). In that opinion, the Superior Court held that Tyson’s eleven claims of
ineffective assistance of trial counsel were prematurely raised pursuant to Commonwealth

-- 2 of 13 --

In Grant, the Pennsylvania Supreme Court created a general rule that1
ineffectiveness of counsel claims should be raised in Post Conviction Relief Act
proceedings.
3
v. Grant, 813 A.2d 726 (Pa. 2002). On November 16, 2004, the Pennsylvania Supreme1
Court denied Tyson’s petition for allowance of appeal.
B. First Federal Habeas Petition.
While his direct appeal in state court was proceeding, Tyson filed a pro se § 2254
petition for habeas relief in the district court on April 24, 2002. Tyson v. Greenspan,
Dist. Ct. No. 02-2413. The petition was assigned to a Magistrate Judge who, on January
14, 2003, issued a Report and Recommendation (“R&R”) concluding that the petition
should be denied and dismissed without prejudice for failure to exhaust state remedies.
On February 10, 2003, the District Court approved the R&R and dismissed the petition
without prejudice. Tyson attempted to appeal that dismissal, but we denied a certificate
of appealability (“COA”) on November 18, 2003. Tyson v. Greenspan, No. 03-1689 (3d
Cir. Nov. 18, 2003).
On October 3, 2002, Tyson filed a “Petition for a Writ of Mandamus,” which the
District Court treated as a § 2254 habeas petition by order entered November 15, 2002,
and subsequently dismissed. Tyson appealled that decision, but we dismissed for lack of
jurisdiction. No. 02-4545. He subsequently filed motions for relief under Fed.R.Civ.P.
60(b) and other nunc pro tunc motions for relief, but the district court dismissed the case
on July 16, 2004 and denied nunc pro tunc relief on October 12, 2004.

-- 3 of 13 --

4
C. Second and Third Federal Habeas Petitions.
On March 18, 2004, Tyson filed his second § 2254 petition. Tyson v. Officer
Myers, Dist. Ct. No. 04-1173. On June 21, 2004, he filed a third § 2254 petition,
claiming that he did not receive notice that his second petition (No. 04-1173) was
docketed. Tyson v. Officer Myers, Dist. Ct. No. 04-2723. Tyson began to litigate both
petitions and, as the Magistrate Judge noted, Tyson admitted in one of his many court
filings that his petition docketed at No. 04-2723 raised the same Ex Post Facto and Due
Process challenges he raised in his petition docketed at No. 04-1173.
On March 15, 2005, the Magistrate Judge issued another R&R concluding that
Tyson’s habeas petition docketed at No. 04-1173 should be dismissed without prejudice
for failure to exhaust state remedies. In doing so, the Magistrate Judge specifically
warned Tyson that he must file his state Post Conviction Relief Act petition no later than
February 13, 2006, to avoid procedural default of his claims on federal habeas review.
On that same day, the Magistrate Judge issued a R&R in response to the habeas
petition docketed at No. 04-2723. The judge noted that because the claims raised in that
petition are essentially the same as the claims raised in Tyson’s habeas petition docketed
at No. 04-1173, he recommended that the petition docketed at No. 04-2723 should be
dismissed with prejudice as an unauthorized second or successive petition.
On April 25, 2005, the District Court adopted the Reports and Recommendations
for both petitions. Tyson subsequently filed numerous motions to alter or amend the

-- 4 of 13 --

Between July 2002 and January 2006, Tyson filed six other actions in the district2
court that were not federal habeas petitions. They included prisoner civil rights actions
filed pursuant to 42 U.S.C. § 1983 and an action against his former counsel.
5
judgment or correct the record under Rule 60(b) as to the petition docketed at No. 04-
1173, which the District Court denied by orders dated April 27, 2005, May 10, 2005, and
May 24, 2006.
Tyson also filed numerous appeals in connection with the petition docketed in the
District Court at No. 04-1173. On December 28, 2004, we dismissed his appeal (No. 04-
2602) from the order concerning the proper form for his petition and filing fees for lack
of jurisdiction. By order dated January 21, 2005, we denied his petition for a writ of
mandamus (No. 04-4181). On August 16, 2005, we denied his requests for COAs on the
merits. We concluded that the District Court had properly determined that Tyson had
failed to exhaust his state remedies (No. 05-2353). On September 19, 2005, we dismissed
his petition for reargument (No. 05-2601). By order dated August 22, 2005, we denied
Tyson’s petition for a writ of mandamus (No. 05-3529). By order dated October 17,
2005, we denied his request for a COA regarding the district court’s denial of his request
for a stay (No. 05-3671).
All the while, Tyson sought to re-open his second habeas petition in the District
Court by filing another Rule 60(b) motion on May 18, 2006. The District Court denied
that motion on May 24, 2006.2
D. State Post-Conviction Actions.

-- 5 of 13 --

6
During this time, Tyson filed a pro se petition for relief under the Pennsylvania
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., in state court on June
30, 2005. Counsel was appointed on January 9, 2006, but the PCRA court granted Tyson
permission to proceed pro se on April 10, 2006. The PCRA court dismissed his petition
on June 5, 2006, after sending Tyson notice of its intention to dismiss the petition without
a hearing pursuant to Pa.R.Crim.P. 907.
Tyson appealed to the Pennsylvania Superior Court contending that the PCRA
court erred by (1) “not recusing [herself], failing to state the reasons in the pre-dismissal
notice, and failing to notify [him] of his pro se status;” (2) “ignor[ing] federal law by
determining that the retroactive application of Grant did not violate the Ex Post Facto[,]
Due Process, Contracts Taking, [and] Bill of Attainder Clauses, and [his] right to counsel,
of choice and a speedy appeal;” (3) determining that he was “not completely and
constructively deprived of counsel and did not suffer abandonment of loyalty-conflict of
interest at trial and on appeal, that it never erred during [his] trial, that [he] did not raise
the original 11 pre-Grant claims, and that [he] is not actually and legally innocent;” and
(4) rejecting unidentified claims of “newly-after-discovered evidence.” SA 143. In the
body of his brief, Tyson raised numerous other claims
The Superior Court affirmed the PCRA court’s dismissal on May 1, 2007.
Commonwealth v. Tyson, 929 A.2d 248 (Pa. Super. 2007) (Table). The Superior Court
held that Tyson had waived the more than thirty-two claims raised in the body of his brief

-- 6 of 13 --

Tyson also filed numerous other actions in the Pennsylvania Superior Court and3
the Pennsylvania Supreme Court which have nothing to do with the issue present in this
appeal.
7
because he did not include them in his statement of questions involved in violation of
Pa.R.App.P. 2116(a). The court also denied the claims that were actually before it either
because they were waived, or because they lacked merit. First, it found that Tyson’s
allegation of trial court bias was waived because it was not raised on direct appeal, but
that it would fail in any event as completely unsubstantiated. Second, it noted that Tyson
failed to state a claim for PCRA relief in contending that the state courts erred in applying
Commonwealth v. Grant, supra., and that any claim of a constitutional violation was
waived for lack of support and elaboration. Third, it held there was no merit to Tyson’s
claim of ineffectiveness of trial and appellate counsel. Fourth, it found that Tyson waived
his claim of after-discovered evidence because of his failure to provide any intelligible
discussion to support it. On July 5, 2007, the Superior Court denied Tyson’s petition for
reargument. Tyson then filed a petition for allowance of appeal with the Pennsylvania
Supreme Court, which was denied on October 26, 2007. On November 8, 2007, Tyson3
filed an “Application for Reconsideration,” which the Pennsylvania Supreme Court
denied on April 3, 2008.
E. The Habeas Petition That Is The
Subject Of This Appeal.
The foregoing serpentine background brings us to the petition that is now pending

-- 7 of 13 --

8
before us. On January 23, 2006, Tyson filed another habeas petition (Dist. Ct. No. 06-
0290), which is the subject of this appeal. In an order entered January 30, 2006, the
district court granted Tyson leave to proceed in forma pauperis, ordered him to complete
the standard form for filing petitions pursuant to § 2254, and directed him to return the
completed form to the Clerk of Court within thirty days. Tyson returned the completed
form on February 7, 2006. In his petition Tyson alleged that: (1) he had suffered an “Ex
Post Facto – Due Process – contracts – choice of counsel – Takings – Bill of Attainder
Clause violation” on the ground that “after [his] direct appeal was financed, briefed, and
argued in reliance on the pre-existing [Commonwealth v. Hubbard, 372 A.2d 687 (Pa.
1977)] rule system [prior to Commonwealth v. Grant, supra,] the Supreme Court (via the
Superior Court) imposed new duties, impaired the obligation of [his] attorney-client
contract, and changed the legal consequences of previously completed appeal acts,” Pet. ¶
12(A); (2) the state courts “refused to give ‘just compensation’ for destroying [his] vested
legal and financial reliance in the pre-existing rule [prior to Grant] and allow [him] to
adapt to the rule change,” Pet. ¶12(B); and (3) he suffered a “speedy appeal – Due
Process violation” on the ground that the state courts “prolonged [his] appeal for nearly
two years and then constructively denied it on the basis of the Ex Post Facto Grant rule,”
Pet. ¶ 12(C).
The District Court did not order the Commonwealth to file a response to the
petition. Instead, it dismissed the petition without prejudice on February 13, 2006. It

-- 8 of 13 --

9
wrote:
On January 23, 2006, [Tyson] filed the above-captioned petition in this
court seeking Habeas Corpus relief pursuant to 28 U.S.C. § 2254. [Tyson]
has filed a previous petition in this court pursuant to 28 U.S.C. § 2254.
labeled 04-cv-2723, which attacked the same conviction and/or sentence
and was considered, and denied, on the merits. The Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C. § 2241-2266, provides in
relevant part that before such a second or successive petition is filed in the
district court, the prisoner must first get permission to file in the district
court from the circuit court pursuant to 28 U.S.C. § 2244(b)(3)(A), and that
without such circuit permission, the district court lacks subject matter
jurisdiction to consider such a habeas petition. Stewart v. Martinez-
Villaeral, 523 U.S. 637 (1998); Felker v. Turpin, 518 U.S. 651 (1996);
Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005).
App. 1. Accordingly, the District Court dismissed the petition without prejudice “on the
grounds that [it] lacks subject matter jurisdiction over it.” Id.
On March 9, 2006, Tyson filed a notice of appeal, and we granted Tyson’s
application for the COA filed on April 13, 2006. Our COA reads:
The foregoing request for a certificate of appealability is granted with
regard to [Tyson’s] contention that the District Court improperly dismissed
his § 2254 petition as an unauthorized second or successive petition. See
Villanueva v. United States, 346 F.3d 55, 60 ([2d Cir.] 2003); Christy v.
Horn, 115 F.3d 201, 208 (3d Cir. 1997). The parties should also address
whether [Tyson] has exhausted state court remedies.
F. Subsequent Filings.
Not surprisingly, our grant of a COA did not end Tyson’s filings in the District
Court. On March 17, 2007, Tyson filed an additional habeas petition, also docketed at
No. 06-0290, alleging various acts of malfeasance on the part of the state courts and the
Commonwealth of Pennsylvania. Tyson requested, among other things, that the District

-- 9 of 13 --

10
Court waive the exhaustion requirement or grant his request for federal habeas relief.
He attached to the petition a newly completed standard federal habeas petition form in
which he asserted variations of the claims he previously asserted, in addition to new
claims, viz., (1) that the state courts violated [the] “Ex Post Facto, Due Process,
Contracts, Takings, Bill of Attainder clauses and right to counsel of choice and a speedy
trial,” Pet. ¶ 12(A); “complete and constructive denial of counsel at trial for entirely
failing to object to prosecutorial misconduct, judicial misconduct and error, abandonment
of loyalty,” together with allegedly newly discovered, yet unspecified, evidence of his
actual innocence, Pet. ¶ 12(b), and (3) constructive denial of counsel and conflict of
interest on appeal” based on counsel’s “fail[ure] to challenge the after-the-fact rule
change,” filing of “frivolous briefs in [Tyson’s] name, and fail[ure] to offer any argument
why [the] appeal should be heard” or raise “meritorious claims,” Pet. ¶ 12(C). A short
time later, on March 31, 2007, Tyson filed a “Motion for Recusal.” In an order entered
March 31, 2007, the District Court held that this new federal habeas petition, together
with the motion for recusal, would be held in abeyance pending the outcome of this
appeal.
On April 5, 2007, Tyson filed yet another federal habeas petition, again under No.
06-0290, captioned “Application for Relief for Writ of Habeas Corpus re: Actual and
Legal Innocence.” In an order entered April 9, 2007, the District Court held that this
petition would also be held in abeyance pending the outcome of this appeal.

-- 10 of 13 --

11
On August 1, 2007, Tyson filed an “Application for Release Pending Appeal,”
which the District Court denied in an order entered August 13, 2007. On August 28,
2007, Tyson filed a “Motion for Order Directing Release Pending Appeal under F.R.A.P.
23(b),” which the district court denied in an order entered on September 11, 2007.
In the meantime, Tyson filed another federal habeas petition, again under No. 06-
0290, on September 6, 2007, followed by another copy of the petition on September 7,
2007, this time with two affidavits attached. In an order entered September 14, 2007, the
District Court ruled that consideration of these petitions would be held in abeyance
pending the outcome of this appeal.
On September 27, 2007, Tyson filed a notice of appeal from the District Court’s
September 11, 2007 order denying his request for release pending appeal. That appeal
was docketed independently of this appeal. Tyson v. Beard, No. 07-3884. By order dated
December 11, 2007, we rejected Tyson’s claim that he was entitled to release and closed
the appeal.
II.
The District Court’s holding that it lacked jurisdiction to consider Tyson’s habeas
petition is incorrect. AEDPA’s provision requiring a petitioner to seek permission, see 28
U.S.C. § 2244(b)(3)(A), by a court of appeals before filing a “second or successive”
habeas petition necessarily only applies where the petitioner’s initial filing can be
considered a “first” habeas petition. A petition is considered a “prior application” for

-- 11 of 13 --

12
purposes of 28 U.S.C. § 2244(b) only if it was adjudicated on the merits. See Villaneuva
v. United States, 346 F.3d 55, 60 (3d Cir. 2003). In contrast to the language of the
district court’s order, Tyson’s third petition was not considered or rejected on the merits.
See Tyson v. Meyers, Dist. Ct. No. 04-2723. Nor do Tyson’s first or second petitions,
which were dismissed for failure to exhaust, form the basis for requiring permission
under § 2244. See Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997) (if the initial
petition was dismissed for failure to exhaust, § 2244 does not apply). Accordingly, Tyson
has not yet filed a “first” petition for purposes of § 2244. Therefore, the District Court
erred by dismissing Tyson’s petition which is the subject of this appeal as “second or
successive.”
In our COA, we also directed that the parties address whether Tyson has exhausted
his state remedies. At the time the briefs were filed, Tyson had not exhausted his state
remedies. However, as noted earlier, on April 3, 2008, the Pennsylvania Supreme Court
denied Tyson’s motion for reconsideration of its denial of a petition for allowance of an
appeal from the Superior Court’s affirmance of the PCRA court’s denial of his PCRA
petition. Therefore, he has now exhausted his state remedies.
Inasmuch as the District Court erred in dismissing the habeas petition which is the
subject of this appeal as a second or successive petition, and since he has now exhausted
his state remedies, we will remand to the District Court so that court can determine which
of his federal habeas petitions, all bearing No. 06-0290, contain the final and complete

-- 12 of 13 --

The Commonwealth claims that certain of his claims have already been4
procedurally defaulted. However, we believe that a determination of that issue is best left
for the district court’s determination in the first instance.
We realize that our remand further complicates a case that, but for its relatively5
short time in federal court, could rival Dickens’ Bleak House for its apparent potential to
outlive every judge who ever has or ever will touch it (including this one). Yet, given the
state of this record, we have no alternative but to require the District Court to look at this
yet again.
13
statement of his claims for habeas relief. Once Tyson decides which claims he wishes to
pursue on federal habeas, the District Court can then review each of the claims, determine
which have been properly presented to the state courts, and adjudicate any properly4
presented claims.
III.
For the above reasons, we will reverse the district court order dismissing without
prejudice Tyson’s habeas petition and remand for further proceedings consistent with this
opinion.5

-- 13 of 13 --