Opinion
3:11-cv-190-KRG-KAP
12-12-2022
THOMAS RAY ALLEN, Petitioner v. JOSEPH MAZURKIEWICZ, Jr., WARDEN, Respondent
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE.
Petitioner filed what he styles as a Motion For Relief From Judgment Under Fed.R.Civ.P. 60(b)(6), ECF no. 28. It should be denied.
Report
Petitioner is now at S.C.I. Somerset serving a sentence imposed in Blair County in 2007, a sentence petitioner previously challenged in a petition for a writ of habeas corpus at this number. See Allen v. Mazurkiewicz, Case No. 3:ii-cv-19O-KRG-KAP (W.D.Pa. March 10, 2014), certificate of appealability denied sub nom. Allen v. Warden Greensburg SCI, No. 14-1697 (3d Cir. September 16, 2014). One claim in petitioner's petition was that the Blair County Court of Common Pleas did not have subject matter jurisdiction because any alleged criminal conduct involving petitioner took place in Ohio.
In 2021, petitioner tried to present that claim in a second federal habeas petition in the form of a pleading styled “Complaint for Violations of Civil Rights.” Because it was actually a successive petition for a writ of habeas corpus, I transferred it to the Court of Appeals, where petitioner abandoned it. See Allen v. Court of Common Pleas of Blair County, Case No. 3:21-cv-103-KAP (W.D.Pa. June 15, 2021), dismissed for failure to prosecute sub nom. In re: Thomas Allen, No. 21-2146 (3d Cir. September 8, 2021).
Now, petitioner is back, presenting in the form of a Rule 60 motion the same claim that he presented in 2011 and 2021. He cites some recent case law in Pennsylvania discussing extraterritorial conduct as a basis for subject matter jurisdiction and claims that this new case law shows that he is actually innocent. It is not clear whether petitioner has a remedy in state court that would allow him to argue this claim (and if so, whether he has exhausted it) but he is currently barred from his claim in this court by 28 U.S.C.§ 2244, which in relevant part states:
(b)(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.
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
The petitioner's motion attacks the judgment of sentence using the same argument about jurisdiction that petitioner presented in his habeas petition in 2011, only updated with new cases. If it is a second or successive petition, it is either subject to dismissal under §2241(b)(1) or cannot be considered at this point as a result of §2241(b)(2).
In Banister v. Davis, 140 S.Ct. 1698, 1705-06 (2020), the Supreme Court held that a Rule 59 motion promptly filed to alter a judgment in a habeas matter was not a second or successive petition. The Court explained that defining “second or successive” is based, first, on historical habeas doctrine and practice: if in pre-AEDPA cases a filing would have constituted an abuse of the writ, “it is successive; if not, likely not.” Second, “second or successive” is defined in light of AEDPA's purposes of conserving judicial resources, reducing piecemeal litigation, and lending finality to state court judgments within a reasonable time. A Rule 60 motion that seeks to revive a decade old petition to explore allegedly favorable case law is second or successive because it fails on every point mentioned in Banister v. Davis: petitioner's motion would have been considered, pre-AEDPA as the classic example of an abuse of the writ, it wastes judicial resources because it requires piecemeal consideration of the same claim every time a new state court decision is cited, and by re-opening the previously denied claim necessarily implies that the state court judgment can never be final.
Banister v. Davis expressly distinguished motions under Rule 60. The Supreme Court held, in Gonzalez v. Crosby, 545 U.S. 524, 532-33 (2005), that a Rule 60(b) motion is a second or successive habeas petition if it attacks the federal court's previous resolution of a claim on the merits, but not if it raises some defect in the integrity of the federal habeas proceedings. Petitioner alleges that in light of new case law this court erred in denying habeas relief on the merits. That is indistinguishable from alleging that the movant is substantively entitled to habeas relief. Under 28 U.S.C.§ 2244 (b)(1)-(3), petitioner must therefore, before this court could consider any such claim, first obtain an order from the Court of Appeals authorizing this court to hear the merits of any such petition.
Procedurally, the Court should dismiss the motion and allow petitioner to take an appeal, as opposed to the procedure used in 2021, which was to transfer a new matter to the Court of Appeals. That requires consideration of a certificate of appealability. A certificate of appealability should issue when the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing is not synonymous with success: a petitioner need only show that jurists of reason would debate the correctness of the district court's denial of a habeas petition. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Hickox v. Superintendent Benner Twp. SCI, 2020 WL 6437411, at *1 (3d Cir. Oct. 29, 2020). At the same time, it is more than good faith or the absence of frivolity on the part of the petitioner. Miller-El v. Cockrell, 537 U.S. at 338.
Because authorization from the Court of Appeals is necessary before this Court can consider a second petition, petitioner has not made a substantial showing of the denial of a constitutional right, and no certificate of appealability should issue.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
Notice by ECF to counsel of record and by U.S. Mail to:
Thomas Ray Allen HE-5446
S.C.I. Somerset
1590 Walters Mill Road
Somerset, PA 15510