Joseph Peter Frankenberry v. Court of Common Pleas of Fayette County, Pa

ALD-113 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-4417
JOSEPH PETER FRANKENBERRY,
Appellant
v.
COURT OF COMMON PLEAS OF FAYETTE COUNTY, PA;
BRIAN COLEMAN, Superintendent SCI Fayette
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2:09-cv-00557)
District Judge: Honorable Nora B. Fischer
Submitted for Possible Summary Action Pursuant to
Third Circuit L.A.R. 27.4 and I.O.P. 10.6
February 4, 2010
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
Opinion filed: February 16, 2010
OPINION
PER CURIAM
Appellant Joseph Peter Frankenberry seeks review of a final order by the United
States District Court for the Western District of Pennsylvania entered on November 6,

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Frankenberry raised three claims of trial court error and one claim that he was1
sentenced in violation of the Interstate Agreement on Detainers Act. The District Court
concluded that the three trial error claims lacked merit. See Frankenberry v. Morgan,
Docket No. 21, Report and Recommendation, Civ. Action No. 91-0241 (W.D. Pa. Jan. 27,
1992). The District Court concluded that the Detainers Act claim was unexhausted and
procedurally defaulted and Frankenberry did not establish a basis to excuse the procedural
default. Id.
2
2009. Because the appeal does not present a substantial question, we will summarily
affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I. Background
In 1981, after a jury trial, the Court of Common Pleas of Fayette County convicted
Frankenberry of first degree murder. Frankenberry was sentenced to life imprisonment.
The state courts affirmed Frankenberry’s conviction on direct appeal. Frankenberry filed
three petitions under Pennsylvania’s Post Conviction Relief Act (“PCRA”) and all were
unsuccessful.
Frankenberry filed his first federal petition for a writ of habeas corpus in February
1991. The District Court denied the petition and we denied his application for a1
certificate of probable cause. See Frankenberry v. Morgan, C.A. No. 92-3146 (3d Cir.
August 31, 1992). In September 1996, Frankenberry filed an application pursuant to 28
U.S.C. § 2244 in this Court, seeking leave to file a second habeas corpus petition. We
denied the application. See In re: Frankenberry, C.A. No. 96-8060 (October 3, 1996). In
October 1999, Frankenberry filed a motion in the District Court entitled “Application
Pursuant to In Re Minarik for Leave to File Second 28 U.S.C. § 2254 Petition Under the

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3
Pre-AEDPA Law and Standards.” The District Court concluded that the motion was an
unauthorized attempt to file a successive habeas corpus petition and transferred it to this
Court. We denied leave to file a successive petition. See In re: Frankenberry, C.A. No.
01-1890 (3d Cir. June 1, 2001).
Frankenberry filed the instant petition for a writ of habeas corpus, ostensibly
pursuant to 28 U.S.C. § 2241, in the District Court in May 2009. The Magistrate Judge
issued a detailed Report and Recommendation recommending that it be dismissed as
“jurisdictionally improper and/or meritless.” Frankenberry filed objections. The District
Court considered the objections, adopted the Report and Recommendation, denied the
petition, and, to the extent one would be necessary, declined to issue a Certificate of
Appealability (“COA”).
Frankenberry filed a timely pro se notice of appeal.
II. Analysis
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s denial of the petition for a writ of habeas corpus. See Marshall
v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). We may summarily affirm if this appeal
presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was
enacted in April 1996. Because Frankenberry filed his first habeas corpus petition before

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With respect to Frankenberry’s 1999 attempt to seek habeas corpus relief, we2
concluded that, under In re Minarik, the claims Frankenberry wished to raise would have
been dismissed under the pre-AEDPA standard and there was no impermissible
retroactive application of AEDPA’s gatekeeping standards. See In re Frankenberry, C.A.
No. 01-1890 (3d Cir. May 17, 2001).
Under AEDPA, Frankenberry would be required to apply to this Court to file a3
second or successive petition, and must make a prima facie showing that any claim he
wishes to raise either relies upon a new, retroactively applicable rule of constitutional law
or upon newly discovered evidence of actual innocence. See 28 U.S.C. § 2244(b)(2); In
re Olopade, 403 F.3d 159, 162 (3d Cir. 2005). We note that, if Frankenberry had filed the
instant petition as a § 2244 application in this Court, the record does not reflect that his
claims would meet the § 2244 standard.
4
AEDPA’s enactment, AEDPA’s restrictions on filing second or successive petitions do
not apply if they would have an impermissible retroactive effect on Frankenberry’s
petition. See In re Minarik, 166 F.3d 591, 600 (3d Cir. 1999).2
Prior to AEDPA, in order to pursue a habeas corpus claim that he did not present
in his first petition, Frankenberry would have had to demonstrate either (1) cause and
prejudice for the failure to raise the claim in the first habeas corpus petition; or (2) that
the alleged constitutional violations probably resulted in the conviction of one who is
actually innocent. See In re Minarik, 166 F.3d at 607. If Frankenberry’s new claims
would have been barred as an “abuse of the writ,” then AEDPA’s gatekeeping standards
apply. Id. at 608.3
Frankenberry has failed to set forth his new habeas corpus claims with clarity. In
his Response, he vaguely describes his claims as the same as those he raised in his first
PCRA petition, which he filed in state court in 1994. See Response at 12 (“[W]hen

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Although the District Court concluded that one claim was unexhausted, it further4
found that the claim was procedurally defaulted and Frankenberry did not establish a
basis for excusing the procedural default. See Frankenberry v. Morgan, Docket No. 21,
5
petitioner stated ‘restates and realleges’ the issue in his first PCRA. . . , [t]hen naturally it
presupposes the same claim of ineffective assistance of counsel continues in the instant
habeas petition.”). Frankenberry has made no effort to establish cause and prejudice for
failing to raise these claims in his first habeas corpus petition and he does not argue actual
innocence. We see no basis for applying these principles. Frankenberry’s claims cannot
survive the pre-AEDPA “abuse of the writ” standard and, accordingly, the § 2244
gatekeeping standards properly apply.
B.
We next turn to the District Court’s conclusion that Frankenberry’s petition was an
attempt to file an unauthorized second or successive petition under § 2254. Frankenberry
contends that the current petition, while concededly not his first habeas corpus petition,
should not be considered “second or successive.” See Response at 6 (“[T]he instant
habeas petition . . . must be considered a first habeas petition.”).
First, Frankenberry argues that the District Court dismissed his first habeas corpus
petition as unexhausted, so it does not “count” for purposes of determining whether his
subsequent petitions are successive. See Stewart v. Martinez-Villareal, 523 U.S. 637,
644-45 (1998). However, the District Court did not dismiss his first petition as
unexhausted. The District Court denied the petition on the merits. Accordingly,4

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Report and Recommendation, Civ. Action No. 91-0241 (W.D. Pa. Jan. 27, 1992); see
also, e.g., Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998) (a denial based on
a procedural default not overcome by a showing of cause and prejudice constitutes an
adjudication on the merits).
6
Martinez-Villareal does not apply.
Next, Frankenberry argues that, when he filed his first habeas corpus petition, he
attempted to proceed under 28 U.S.C. § 2241, but the District Court “recharacterized” his
petition under 28 U.S.C. § 2254 without providing prior notice pursuant to Castro v.
United States, 520 U.S. 375,383 (2003). Frankenberry has failed to establish that the
District Court “recharacterized” his first habeas corpus petition. The Docket Sheet from
that action reflects that Frankenberry filed a document entitled “APPLICATION for
Leave to Amend 28 U.S.C. § 2254 w/ petition,” along with an amended petition, in April
1991. See Response Exhibit B-1 (Docket, Civ. Action No. 91-cv-241 (W.D. Pa.). The
District Court granted Frankenberry’s motion to amend. Thus, Frankenberry himself
sought relief under § 2254.
C.
Frankenberry’s initial submissions stated that he filed the instant petition pursuant
to 28 U.S.C. § 2241 rather than § 2254. To the extent Frankenberry continues to attempt
to proceed under § 2241, we agree with the District Court’s conclusion that he is not
entitled to do so. A state prisoner who, like Frankenberry, is challenging the validity or
execution of his state court sentence must proceed under 28 U.S.C. § 2254. See Coady v.
Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001).

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We will not address the District Court’s alternative conclusion that Frankenberry’s5
claims lacked merit. See Goldblum v. Klem, 510 F.3d 204, 217 (3d Cir. 2007) (citing
Benchoff v. Colleran, 404 F.3d 812, 816 (3d Cir. 2005)) (“Unless both the procedural and
substantive requirements of § 2244 are met, the District Court lacks authority to consider
the merits of the petition.”).
7
Frankenberry argues that he may proceed under § 2241 pursuant to In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). In In re Dorsainvil, we held that a motion
under 28 U.S.C. § 2255 was “inadequate or ineffective” to test the legality of a federal
prisoner’s detention where an intervening change in the law had decriminalized the
prisoner’s conduct. However, Frankenberry is not a federal prisoner and his claims do
not fit within the narrow In re Dorsainvil exception. Frankenberry essentially claims that
§ 2241 should apply because his past attempts to proceed under § 2254 were
unsuccessful. We have held that § 2241 does not apply merely so that a petitioner may
avoid AEDPA’s strict gatekeeping requirements. See Coady, 251 F.3d at 484-85.
III. Conclusion
For all of the foregoing reasons, the District Court properly dismissed the petition
as an attempt to file a second or successive habeas corpus petition under § 2254 without
first obtaining the necessary authorization under § 2244. See 28 U.S.C. §§ 2244, 2254.5
Having closely reviewed the record, we conclude that there is no substantial question to
be presented on appeal. We will therefore summarily affirm the District Court’s
judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

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