Opinion
Civil Action No. 09-72
09-11-2017
ANOTNIO FERGUSON, Petitioner, v. SUPERINTENDENT DAVID DIGUGLIELMO, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and DISTRICT ATTORNEY OF THE COUNTY OF ERIE, BRADLEY H. FOULK, Respondents.
ORDER ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation ("R&R") of the Honorable Lisa Pupo Lenihan, United States Magistrate Judge, recommending that the Court deny Petitioner's "Motion to Reopen Case," which Judge Lenihan interpreted as a Motion for Relief from Judgment pursuant to Fed. R. Civ. P. 60(b). Doc. 41. Specifically, the R&R states that Petitioner, in his motion, alleges that there has been "a drastic change in material fact and circumstances" that warrant amending the Court's 2010 denial of his petition for a writ of habeas corpus. Id. at 1 (quoting Pet'r's Mot., Doc. 40 at 1, and citing Order, Doc. 18). According to Petitioner, a police officer who testified at Petitioner's trial that Petitioner had confessed to the underlying crimes, was, months later, "convict[ed]" of perjury. Doc. 40 at 2. Petitioner, in his motion, maintains that this "conviction" should have been disclosed to him and the state appellate courts reviewing his claims on direct appeal. See id. at 3-11. Petitioner's motion, the R&R finds, challenges his underlying conviction and not the manner in which the Court's earlier habeas judgment was procured. Id. Thus, the R&R holds, Petitioner's Rule 60(b) motion constitutes a successive habeas petition. Doc. 40 at 4 (citing Gonzalez v. Crosby, 545 U.S. 524, 531 (2005), and Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004)). Pursuant to 28 U.S.C. § 2254, permission to file a successive petition can be granted only by the Third Circuit; thus, the R&R concludes, the Court lacks jurisdiction over Petitioner's motion. Id. at 4-5. Petitioner filed objections to the R&R. Doc. 42. When a party objects to an R&R, the district court must review de novo those portions of the R&R to which objection is made. See United States v. Raddatz, 447 U.S. 667, 673 (1980); Fed. R. Civ. P. 72(b). However, to obtain de novo review, a party must clearly and specifically identify those portions of the R&R to which it objects. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The district court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the Magistrate Judge. Raddatz, 447 U.S. at 673-74.
Here, Petitioner's objections largely restate the allegations he put forth in his motion, Compare Pet'r's Mot., Doc. 40 with Pet'r's Objs., Doc. 42. Accordingly, Plaintiff's objections do not trigger de novo review. See Goney, 749 F.2d at 6-7. In any event, the R&R is correct that "when the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition" over which a district court lacks jurisdiction pursuant to § 2244(b)(1). Pridgen, 380 F.3d at 727. Here, for the reasons stated in the R&R, the Petitioner has presented no reason to alter the Court's prior dismissal of his habeas petitioner. See R&R, Doc. 41; Pet't's Objs., Doc. 42; see also United States v. Tam, 2005 WL 1030197, at *5 (E.D. Pa. May 3, 2005). Accordingly, the Court HEREBY ORDERS:
Moreover, as explained in the R&R, the relevant police officer was neither charged with nor convicted of perjury. See Doc. 40 at 5 n.3 (citing Exs. A-D, Pet'r's Mot., Doc. 40). --------
(1) The Court ADOPTS the Report and Recommendation [Doc. 41];
(2) Petitioner's Motion to Reopen Case [Doc. 40] is DENIED;
(3) A certificate of appealability is DENIED;
(4) The clerk shall send copies of this Order to the parties.
IT IS SO ORDERED.
DATED this 11th day of September, 2017.
/s/_________
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE