Filed: Nov. 16, 1994
Latest Update: Mar. 02, 2020
Summary: 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of the United 1994 Decisions States Court of Appeals for the Third Circuit 11-16-1994 Dolenc v. Love Precedential or Non-Precedential: Docket 93-3625 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Dolenc v. Love" (1994). 1994 Decisions. Paper 192. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/192 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals
Summary: 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of the United 1994 Decisions States Court of Appeals for the Third Circuit 11-16-1994 Dolenc v. Love Precedential or Non-Precedential: Docket 93-3625 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Dolenc v. Love" (1994). 1994 Decisions. Paper 192. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/192 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals f..
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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Precedential or Non-Precedential: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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Dolenc v. Love" (1994). 1994 Decisions. Paper 192.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/192
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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.
