Opinion
Civil Action 2:01-cv-00005-DSC-LPL
04-18-2022
DEMETRIUS BAILEY, Petitioner, v. CONNER BLAINE, et al., Respondents.
David S. Cercone District Judge.
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan United States Magistrate Judge.
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Petitioner's “Motion for
Relief Fed.R.Civ.P. 60(d)(1) Independent Action” (ECF No. 77) be dismissed for lack of jurisdiction as an unauthorized second or successive petition for writ of habeas corpus. Should the Court not construe it as such, it should be denied on its merits. To the extent that a certificate of appealability is required, it should be denied.
II. REPORT
A. Procedural History in State Court
Petitioner Demetrius Bailey (“Petitioner”) is a state prisoner who is currently serving a mandatory life sentence after he was convicted by a jury of murder in the second degree and robbery on December 20, 1994. See Commonwealth v. Bailey, Nos. CC199406409 and CC199408102 (Allegheny Cty. Ct of Common Pleas). His judgment of sentence was affirmed by the Pennsylvania Superior Court on November 20, 1995, and the Pennsylvania Supreme Court denied his petition for allowance of an appeal on April 23, 1996. See Commonwealth v. Bailey, 673 A.2d 398 (Table) (Pa. Super. 1995) (unpublished memorandum), appeal denied, 675 A.2d 1241 (Table) (Pa. 1996).
Petitioner killed the victim on May 5, 1994, after unsuccessfully demanding money from him in a loud argument overheard by others in an apartment complex. He shot the victim in the head and, as the victim lay dead or dying, took money from the victim's pocket. Three eyewitnesses saw various stages of the murder and robbery. Petitioner, born on July 9, 1973, was twenty years old at the time of the murder, and twenty-one at the time of trial. After the verdict, the trial court sentenced him to a term of life imprisonment without parole but imposed no further penalty for the robbery conviction. See Commonwealth v. Bailey, 2019 WL 4927157, at *1 (Pa. Super. Oct. 7, 2019).
On April 21, 1997, Petitioner, represented by privately retained counsel, filed his first petition pursuant to the Pennsylvania Post-Conviction Relief Act (“PCRA”). It was denied on March 19, 1998, and the Superior Court affirmed the denial of relief on September 17, 1999. See Commonwealth v. Bailey, 747 A.2d 407 (Table) (Pa. Super. 1999) (unpublished memorandum).
On August 5, 2003, Petitioner, acting pro se, filed his second petition pursuant to the PCRA. Counsel was appointed but ultimately filed a motion to withdraw and a “no-merit” brief pursuant to Turner -Finley practice. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On June 23, 2005, the PCRA court denied and dismissed Petitioner's PCRA petition. The Superior Court affirmed the decision on June 7, 2007, the Pennsylvania Supreme Court denied the appeal on November 2, 20017, and the United States Supreme Court denied certiorari on February 19, 2008. See Commonwealth v. Bailey, 932 A.2d 248 (Pa. Super. 2007) (unpublished memorandum), appeal denied, 934 A.2d 71 (Pa. 2007), cert. denied, Bailey v. Pennsylvania, 552 U.S. 1215 (2008).
On July 8, 2008, Petitioner, again pro se, filed his third PCRA petition in the form of a petition for writ of habeas corpus. On August 12, 2008, the PCRA court issued a notice pursuant to Pennsylvania Rule of Criminal Procedure 907, that it intended to dismiss Petitioner's petition without a hearing. On September 8, 2008, the PCRA court denied Petitioner's third PCRA petition. He filed his notice of appeal on September 16, 2008.
On June 25, 2009, while the appeal of his third PCRA petition was still pending, Petitioner filed his fourth PCRA petition, again pro se. The PCRA court denied this petition on July 29, 2009. Subsequently, on August 14, 2009, the Pennsylvania Superior Court affirmed the denial of Petitioner's third PCRA petition, and on January 19, 2010, the Pennsylvania Supreme Court denied the appeal. See Commonwealth v. Bailey, 984 A.2d 1006 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 987 A.2d 158 (Pa. 2010).
On November 15, 2010, Petitioner filed another petition, couched as a “Petition Challenging the Constitutionality of Coroner's Statute and Petition to Strike/void Decree.” On August 10 and September 14, 2012, the lower court entered orders denying the petition. Petitioner filed his notice of appeal on October 9, 2012, and on November 12, 2013, the Superior Court quashed it as untimely filed after finding that the lower court's order on September 14, 2012 was a legal nullity since the court no longer had jurisdiction to act. See Commonwealth v. Bailey, 2013 WL 1125065, at *2 (Pa. Super. Nov. 12, 2013). The Superior Court nevertheless determined that it would have affirmed the lower court even if the appeal had been timely filed because the petition itself was untimely filed under the PCRA. It specifically found that the relief Petitioner was seeking was available under the PCRA even though he attempted to couch his petition as something other than a PCRA petition to avoid its time bar. Id. Petitioner's appeal to the Pennsylvania Supreme Court was denied on June 4, 2014. See Commonwealth v. Bailey, 93 A.2d 461 (Table) (Pa. 2014).
Petitioner filed another pro se PCRA petition on November 5, 2014. It was dismissed on April 20, 2016, and the Superior Court affirmed the dismissal of the petition as untimely on April 7, 2017. See Commonwealth v. Bailey, 2017 WL 1291890 (Pa. Super. Apr. 7, 2017).
Petitioner filed what was treated as his sixth PCRA petition and it was dismissed as untimely on January 25, 2018. The Superior Court affirmed the dismissal of the petition on October 7, 2019, specifically finding that Petitioner's arguments did not satisfy any exception to the PCRA's statutory time-bar. See Commonwealth v. Bailey, 2019 WL 4927157 (Pa. Super. Oct. 7, 2019). Petitioner appealed, and his petition for allowance of appeal was denied on June 1, 2020. See Commonwealth v. Bailey, 11 WAL 2020 (Pa. June 1, 2020).
Petitioner filed another pro se PCRA petition on August 28, 2020. It was dismissed on July 8, 2021. His appeal of that order is still pending in the Superior Court. See Commonwealth v. Bailey, 842 WDA 2021.
B. Procedural History in Federal Court
Petitioner has a long history of challenging his 1994 judgment of sentence in this Court through the filing of federal habeas petitions filed pursuant to 28 U.S.C. § 2254 and motions for relief from judgment filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The first time Petitioner sought to challenge his judgement of sentence in federal court was by way of a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 on December 17, 2000, and docketed at the instant case number on January 2, 2001. (ECF No. 1.) That petition was dismissed as untimely on September 13, 2001. (ECF No. 24.) When he appealed, the United States Court of Appeals for the Third Circuit denied him a certificate of appealability on September 30, 2002. (ECF No. 32); see also C. A. No. 01-3841 (3d Cir.). He then filed a petition for a writ of certiorari that was denied by the United States Supreme Court on March 10, 2003. (ECF No. 34); see also No. 02-8402 (S.Ct.). After that, Petitioner returned to this Court and filed a motion pursuant to Federal Rule of Civil Procedure 60(b) on December 4, 2003, which was denied by the magistrate judge on January 13, 2004. (ECF Nos. 37-39.) His appeal of that order to the district judge assigned to the case was denied on November 3, 2004. (ECF Nos. 40-41.) Petitioner's attempt to appeal that order to the Third Circuit was denied on March 16, 2005. (ECF No. 43); see also C. A. No. 04-4417 (3d Cir.). Petitioner filed another Rule 60(b) motion on May 18, 2007 (ECF No. 44), and it was denied by the magistrate judge on the same day (ECF No. 45). Petitioner appealed that order denying him Rule 60(b) relief, and the Third Circuit dismissed it for lack of jurisdiction directing the Court to construe it as an appeal to the district judge. (ECF No. 50); see also C. A. No. 07-2729 (3d Cir.). The appeal was denied by the district judge on October 24, 2007. (ECF No. 51.) Petitioner appealed to the Third Circuit which denied his request for a certificate of appealability on February 6, 2008. (ECF No. 56); see also C. A. No. 07-4202 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in a second federal habeas petition on August 15, 2007. See No. 2:07-cv-1122 (ECF No. 1). That petition was dismissed as an unauthorized second or successive petition on January 10, 2008. See No. 2:07-cv-1122 (ECF No. 22). Petitioner sought a certificate of appealability with the Third Circuit which was denied on April 18, 2008. See No. 2:07-cv-1122 (ECF No. 26); see also C. A. No. 08-1396 (3d Cir.). He then filed a Rule 60(b) motion, which this Court denied on June 23, 2008. See No. 2:07-cv-1122 (ECF Nos. 27 & 28). He sought a certificate of appealability for the denial of Rule 60(b) relief, which the Third Circuit denied on November 17, 2008. See No. 2:07-cv-1122 (ECF No. 31); see also C. A. No. 08-3124 (3d Cir.)
On July 9, 2008, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit an application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on October 7, 2008. See C. A. No. 08-3013 (3d Cir.).
On February 3, 2011, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit another application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on June 1, 2011. See C. A. No. 11-1290 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in this Court for a third time on May 8, 2013. See No. 2:13-cv-653 (ECF No. 1). Although the petition was titled “28 U.S.C. § 3161 Consent and Stipulation to Intervene as Plaintiff” and he sought an “Order for the United States Attorney General or State Attorney General to intervene with the State Court due to Mr. Bailey is drawing into question the constitutionality of a statu[t]e, ” the petition was treated as one seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 and transferred to the Third Circuit Court of Appeals for consideration as a second or successive petition. See No. 2:13-cv-653 (ECF No. 2). The Third Circuit entered an order on June 25, 2013, denying Petitioner's application to file a second or successive federal habeas petition. See No. 2:13-cv-653 (ECF No. 7); see also C. A. No. 13-2426 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in this Court a fourth time on September 17, 2013, by filing a document denominated as a “Motion to Vacate/Motion for Relief Challenging the Constitutionality of Coroner's Statute and Petition to Strike/Void Decree.” See 2:13-cv-1362 (ECF No. 1). Although what Petitioner filed specifically invoked Federal Rule of Civil Procedure 60(b)(4), which allows a party to seek relief on the ground that the “judgment is void, ” the magistrate judge characterized it as a petition filed pursuant to 28 U.S.C. § 2254 finding that it did not meet the definition of a Rule 60(b) motion and transferred it to the Third Circuit for consideration as a second or successive petition. See 2:13-cv-1362 (ECF No. 7). The Third Circuit denied Petitioner leave to file a second or successive petition on November 18, 2013. See C.A. 13-4056 (3d Cir.). Prior to that, Petitioner had filed a “Supplemental Motion to Vacate and Motion for Relief from Judgment” on October 15, 2013, that was denied by the magistrate judge the following day. See 2:13-cv-1362 (ECF No. 8). When he appealed the denial of that motion, the Third Circuit remanded the matter so that a district judge could rule on the objections to that order because Petitioner had filed it before commencing the appeal. See 2:13-cv-1362 (ECF Nos. 9, 19); see also C.A. 13-4444 (3d Cir.). After the case was returned to this Court, the district judge disagreed with the magistrate judge's prior assessment that the initial petition that had invoked Rule 60(b)(4) did not meet the definition of a Rule 60(b) motion, but he nevertheless found that the ground for relief that Petitioner advanced in his Rule 60(b)(4) motion was without merit and denied it on January 4, 2016. See 2:13-cv-1362 (ECF No. 20). On appeal, the Third Circuit denied Petitioner a certificate of appealability. See 2:13-cv-1362 (ECF No. 24); see also C. A. No. 16-1115 (3d Cir.).
Petitioner then returned to this Court and filed another Rule 60(b) motion seeking to challenge the statute under which he was convicted. See 2:13-cv-1362 (ECF No. 25). The motion was dismissed for lack of jurisdiction because the Court found that it was really an unauthorized successive petition despite Petitioner's protestations to the contrary. See 2:13-cv-1362 (ECF No. 32). Petitioner sought and was denied a certificate of appealability by the Third Circuit on June 21, 2018. See 2:13-cv-1362 (ECF No. 36); see also C. A. No. 18-1350 (3d Cir.).
Petitioner challenged his 1994 judgment of sentence in this Court a fifth time on June 12, 2014. See 3:14-cv-121 (ECF No. 1). On June 16, 2014, the petition was determined to be an unauthorized second or successive petition and was transferred to the Third Circuit for consideration as such. See 3:14-cv-121 (ECF No. 2). There is no record of any further proceedings regarding this case.
On March 31, 2016, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit a third application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on May 31, 2016. See C.A. 16-1731 (3d Cir.).
On November 4, 2016, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit a fourth application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on January 6, 2017. See C.A. 16-4008 (3d Cir.).
On July 7, 2017, and pursuant to 28 U.S.C. § 2244(b), Petitioner filed in the Third Circuit a fifth application for leave to file a second or successive federal habeas petition, which the Third Circuit denied on August 25, 2017. See C.A. 17-2459 (3d Cir.).
On October 16, 2019, Petitioner filed a Rule 60(b)(6) motion in this case (ECF No. 58) and he filed a Supplement to it on December 31, 2019 (ECF No. 59). Rule 60(b)(6) relief was denied on March 16, 2020. (ECF No. 65.) Petitioner appealed and the Third Circuit denied his certificate of appealability on September 25, 2020. (ECF No. 69.)
On December 22, 2020, Petitioner filed yet another Rule 60(b)(6) motion in this case. (ECF No. 70.) Said motion was denied on January 20, 2021. (ECF No. 73.) Petitioner appealed and the Third Circuit denied his certificate of appealability on July 13, 2021. (ECF No. 76.)
Petitioner has now filed what he deems is a motion for independent action pursuant to Federal Rule of Civil Procedure 60(d)(1). (ECF No. 77.)
C. Rule 60 and Successive Petitions
Petitioner states that he is seeking relief under Rule 60(d)(1) of the Federal Rules of Civil Procedure, which permits the court to “entertain an independent action to relieve a party from a judgment, order, or proceeding.” Fed.R.Civ.P. 60(d)(1). Relief under Rule 60(d) is reserved for the rare and exceptional case where a failure to act would result in a miscarriage of justice. United States v. Beggerly, 524 U.S. 38, 42-46 (1998).
“An independent action brought under Rule 60(d) is generally treated the same as a motion under Rule 60(b).” Sharpe v. United States, 2010 WL 2572636, at *2 (E.D. Pa. June 22, 2010) (citing Nevada VTN v. Gen. Ins. Co. of Am., 834 F.2d 770, 775 (9th Cir. 1987)). “For purposes of applying the ‘second or successive petition' rule, there is no difference between Rule 60(b) and 60(d). In other words, petitioner cannot relitigate the merits of his habeas petition under the guise of a Rule 60(d) motion.” Id. Indeed, an applicant seeking habeas relief “is not permitted to circumvent AEDPA's second or successive petition requirements simply by labeling the petition . . . as something other than what it is.” Federal Habeas Manual § 11:42. Therefore, the court must first determine whether the Rule 60(d) motion is, in actuality, another habeas petition, and, if so, the petitioner must first seek and obtain an order authorizing the district court to consider the petition. Absent such authorization, the district court is not permitted to consider the merits of the subsequent petition. See 28 U.S.C. § 2244(b)(3)(A).
When a document designated as a Rule 60 motion is filed with the district court in a habeas case, the judge assigned to the case must first determine, using the criteria outlined in Gonzalez v. Crosby, 545 U.S. 524 (2005), whether the motion is a true Rule 60 motion or is actually a second or successive habeas petition. If the judge concludes that the motion is a true Rule 60 motion, the motion should be ruled upon in the manner any other Rule 60 motion would be. Gonzalez, 545 U.S. at 533-36; see also Pridgen v. Shannon, 380 F.3d 721, 727-28 (3d Cir. 2004). If, however, the judge concludes that the motion appears to be an unauthorized second or successive habeas petition, it must be dismissed for lack of subject matter jurisdiction or be transferred to the court of appeals for consideration as an application to file a second or successive petition. Gonzalez, 545 U.S. at 531-32; Pridgen, 380 F.3d at 725; Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002).
In Gonzalez, the Supreme Court addressed the circumstances in which the utilization of Rule 60(b) is “inconsistent with” § 2244(b)'s second or successive requirements and, as a consequence, not available to a state prisoner seeking habeas relief. The Court held that a Rule 60(b) motion must be construed as a habeas application subject to § 2244(b)'s requirements when it advances one or more “claims.” Gonzalez, 545 U.S. at 531-32. The Court explained that “[i]n most cases, determining whether a Rule 60(b) motion advances one or more ‘claims' will be relatively simple.” Id. at 532. Where “[a] motion . . . seeks to add a new ground for relief” it obviously is advancing a “claim.” Id. So is a motion that “attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.” Id. (footnote omitted). Similarly, a motion that seeks to present newly discovered evidence in support of a claim previously denied presents a “claim.” Id. The Court further held that a Rule 60(b) motion is a true 60(b) motion if it challenges only a procedural ruling of the habeas court (such as failure to exhaust, procedural default or a statute of limitations bar) that precluded a merits determination of the habeas application, id., at 532 n.4, or challenges a defect in the integrity of the federal habeas proceedings, such as an assertion of fraud. Id. at 532.
D. Discussion
As previously stated, this Court must look beyond what Petitioner has labeled his motion and examine the contents of it to determine whether it constitutes a second or successive habeas petition. If Petitioner's motion attacks his underlying conviction, then it indeed constitutes an impermissible second or successive habeas petition that is subject to dismissal for lack of jurisdiction because Petitioner has not received permission from the Third Circuit Court of Appeals to challenge his judgment of sentence in a subsequent petition filed under 28 U.S.C. § 2254. If, however, it challenges the integrity of his habeas proceedings then said motion is permissible and the Court may evaluate its merits in accordance with the standards governing Rule 60(d).
In support of his motion, Petitioner states that Rule 60(d) relief should be granted for several reasons, including, (1) counsel's abandonment during his first PCRA proceedings, which he claims caused the procedural default of a newly discovered evidence claim, as well as claims for violations of Brady and Giglio; (2) the prosecutor's presentation of false evidence and failure to turn over favorable evidence to the defense; and (3) the recent receipt of an affidavit by an individual named Lamont Underwood who claims that Petitioner was with him the night of the murder and therefore did not shoot the victim.
Brady v. Maryland, 373 U.S. 83 (1963)
Giglio v. United States, 405 U.S. 150 (1972)
Although Petitioner's motion is scant and contains little factual averments to support his reasons for granting relief, it is clear that Petitioner's motion once again challenges his underlying conviction and not the manner in which his habeas petition was procured. See Gonzalez, 545 U.S. at 531 (A Rule 60(b) motion will be construed as a second or successive habeas petition when the petitioner challenges his underlying conviction rather than the manner in which his previous habeas petition was procured, which is a denial for such reasons as failure to exhaust, procedural default, or a statute-of-limitations bar.) As such, his motion is not a true Rule 60(d) motion but rather an unauthorized second or successive petition for writ of habeas corpus as contemplated by Gonzalez. Petitione did not have authorization from the Third Circuit to file a second or successive petition, and, for this reason, his Rule 60(d) motion is subject to dismissal for lack of jurisdiction.
However, even if Petitioner's motion were evaluated under the standards governing Rule 60(d) motions, Petitioner would not be entitled to relief. “[T]he requirements for an independent action under Rule 60(d)(1) are at least as stringent” as those for a Rule 60(b)(6) motion. United States v. Brown, 2013 WL 3742444, at *9 (E.D. Pa. July 17, 2013) (citing Beggerly, 524 U.S. at 46-47). As stated above, “an independent action should be available only to prevent a grave miscarriage of justice.” Beggerly, 524 U.S. at 47. The Third Circuit has explained that:
[t]he indispensable elements of [an independent action] cause of action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.In re Machne Israel, Inc., 48 Fed.Appx. 859, 863 n.2 (3d Cir. 2002) (quoting Nat'l Sur. Co. of N.Y. v. State Bank of Humboldt, 120 F. 593, 599 (8th Cir. 1903)).
Here, Petitioner has not shown extraordinary circumstances or that a grave miscarriage of justice would result if relief was not granted. For example, his claim regarding his counsel's alleged abandonment of him in his first PCRA proceedings has been specifically addressed and rejected on multiple occasions both by this Court and the Third Circuit Court of Appeals. See ECF No. 69. In fact, said claim, to the extent Petitioner relied on it to support equitable tolling of the statute of limitations, was addressed in depth most recently in Report and Recommendation dated February 28, 2020. See ECF No. any of the claims in Petitioner's motion, present “a good defense” to September 13, 2001, which denied Petitioner's habeas petition as unt Petitioner's newly discovered evidence claim premised on the affida should be addressed in the first instance in his underlying criminal ca review of Petitioner's criminal docket sheet, it does not appear that a that case since Petitioner claims to have received the affidavit on No Petitioner has not shown an “absence of any adequate remedy at law.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommend for Relief Fed.R.Civ.P. 60(d)(1) Independent Action” (ECF No. 77) jurisdiction as an unauthorized second or successive petition for writ the Court not construe it as such, it should be denied on its merits. T of appealability is required, it should be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.