Opinion
Civil Action No. 09 - 72E
09-23-2019
ANTONIO D. FERGUSON, Petitioner, v. SUPERINTEDENT DAVID DIGUGLIELMO, et al., Respondents.
District Judge David S. Cercone
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Petitioner's "Motion to Vacate, Rule 60(B)(6) of the Federal Rules of Civil Procedure," which is construed as a Motion for Relief from Judgment or Order filed pursuant to Federal Rule of Civil Procedure 60(b)(6), be dismissed as an impermissible second or successive habeas petition over which this Court lacks jurisdiction. Also, to the extent that a Certificate of Appealability is required, it should be denied.
II. REPORT
Petitioner Antonio D. Ferguson ("Petitioner") has filed a "Motion to Vacate, Rule 60(B)(6) of the Federal Rules of Civil Procedure," which the undersigned will construe as a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). (ECF No. 49.) Petitioner requests that the Court vacate its Order dated August 5, 2010, which denied his Petition for Writ of Habeas Corpus, and either grant him habeas relief or afford him an evidentiary hearing on his claim of what appears to be actual innocence. This is the third such motion that Petitioner has filed since the Court denied his habeas petition and the Third Circuit Court of Appeals denied his request for a Certificate of Appealability. See ECF Nos. 29, 40, 49. His two previous motions were denied on August 6, 2014 and September 12, 2017, respectively. See ECF Nos. 32, 48. Petitioner also filed an Application for Leave to File a Second or Successive Habeas Petition that was denied by the Third Circuit on December 16, 2013. See In Re: Antonio D. Ferguson, No. 13-4615 (3d Cir. Dec. 16, 2013). For the following reasons, it is recommended that the current Rule 60(b) Motion be denied as well.
A. Abbreviated Factual and Procedural History
The following facts are taken from the undersigned's Report and Recommendation dated June 16, 2010.
Petitioner was convicted of six residential burglaries and two attempted burglaries committed in November and December, 2003. Some of the burglaries occurred in the early morning hours after fresh snow had fallen and one set of distinctive footprints was left in the snow. The footprints were made by a type of lug boot bearing a distinctive flaw in the pattern on the left sole. The imprint of "Timberland" was distinctively visible on the footprint. Photographs were taken of footprints in undisturbed snow at various reported crime scenes. The police believed that the suspect in the above burglaries was wearing this type of boot.
The police noticed a pattern that one area of the city would be burglarized and the perpetrator would then move to another area opposite of the city. The police also determined the burglaries had the same modus operandi. The victims' back door would be smashed open and purses, wallets and other personal possessions in plain view would be quickly snatched.
On the evening of December 22, 2003, a burglary in progress at 2955 Poplar Street, Erie, Pennsylvania was reported. The police were informed the suspect was seen fleeing toward the east side of the city. As a result, police on the east side of the city were on the lookout for a suspect wearing lug boots. At about 1:00 p.m., Petitioner was seen walking on the street in the proximity to the reported burglary.
Petitioner was approached by a patrol officer who shined a flashlight on Petitioner and noticed his boots fit the description of Timberland boots. Another officer on the scene noticed the distinctive footprint left by Petitioner's boots in the snow. Petitioner was asked to show the bottom sole of his left foot. Petitioner complied and offered to remove his boots for the police inspection. The police determined the defect on the left sole appeared to match those seen in crime scene photographs.(ECF No. 15, pp.1-3.)
Petitioner was transported to the Erie City Police Station where he gave oral statements implicating himself in the burglary at 2955 Poplar Street. Petitioner was shown a list of unsolved burglaries that were occurring throughout the city with the same modus operandi. Petitioner admitted to several of the burglaries on the list, but was unable to identify additional burglaries from the list of addresses. After these admissions, he was asked if a ride around the city and a view of the various properties would refresh his memory.
Petitioner agreed and rode with the police in their vehicle and pointed out additional homes he had burglarized. During this drive around the city, Petitioner implicated an alleged accomplice. Petitioner was then taken back to the Erie City Police Station.
Petitioner was left alone in an interrogation room while the officers went to find a blank tape to video record his statements. Prior to signing his statement or having it recorded, Petitioner made an incredible escape by jumping out of a second story window of the police station and absconding. Petitioner was apprehended one week later in New York State.
On May 20, 2004, Petitioner was charged by criminal information 1279 of 2004 with Burglary, Theft By Unlawful Taking and Receiving Stolen Property, at 1280 of 2004 with Burglary Theft By Unlawful Taking, Receiving Stolen Property and False Reports, and at 1281 of 2004 with Escape. On May 21, 2004, Petitioner was charged by criminal information 1282 of 2004 with Criminal Attempt at Theft and Loitering and Prowling, at 1283 of 2004 with Burglary, Theft By Unlawful Taking and Receiving Stolen Property, at 1284 of 2004 with Burglary, Theft By Unlawful Taking, Receiving Stolen Property, and two counts Loitering and Prowling, and at 1285 of 2004 with multiple counts each of Burglary, Theft By Unlawful Taking, Receiving Stolen Property, Loitering and Prowling, and False Reports. On November 8, 2004, following a jury at number 1280 and 1281 of 2004, Petitioner was found guilty as to all charges. On November 10, 2004, following a jury trial at the remaining dockets, Petitioner was found guilty on counts 1, 2, 3, 4, 5, 6, 7, 8, & 13 at docket 1285 and as to all counts at docket numbers 1279, 1282, 1283, and 1284. On January 14, 2005, Petitioner was sentenced to an aggregate term of imprisonment of from twenty-four (24) to seventy-six (76) years.
B. FRCP 60(b)
Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances, including (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; (3) fraud or misconduct by an opposing party; (4) because the judgment is void; (5) because the judgment has been satisfied, released or discharged; and (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). A motion under subsection (b)(6) requires a showing of "extraordinary circumstances," which the Supreme Court has recognized "will rarely occur in the habeas context." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
C. Discussion
As an initial matter, a district court must first determine whether a Rule 60(b) motion is, in actuality, a second or successive habeas petition. This is because federal courts lack jurisdiction to consider a second or successive habeas petition if a petitioner does not first obtain an order from the circuit. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 157 (2007). Therefore, if Rule 60(b) is used by a petitioner to advance a claim that is "in substance a successive habeas petition" this would constitute an impermissible circumvention of the standards set forth in the AEDPA. Gonzalez, 545 U.S. at 531-32.
In order to determine whether a Rule 60(b) motion constitutes a second or successive habeas petition, the Supreme Court has explained that district courts should look to whether it advances a new ground for relief or "attacks the federal court's previous resolution of a claim on the merits." Gonzalez, 545 U.S. at 532. In other words, 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 the Supreme Court has explained to be a denial for such reasons as failure to exhaust, procedural default, or a statute-of-limitations bar. Id. at 531; Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004).
"On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at n.4.
In his Habeas Petition that he filed in this case on March 31, 2009, Petitioner raised two claims for relief. First, Petitioner claimed that his trial counsel was ineffective for failing to have DNA testing performed on blood found at one of the crime scenes, and second, he claimed that his trial counsel was ineffective for failing to investigate the presence of additional footprints found at the crime scenes. See ECF No. 1. In the Report and Recommendation ("R&R") issued on June 16, 2010, the undersigned reviewed both of these claims on their merits and found that the state court's decision with respect to both was neither contrary to or an unreasonably application of clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. See ECF No. 15. In other words, when reviewed under the AEDPA, Petitioner was not entitled to habeas relief. Despite his objections thereto, the undersigned's R&R was adopted as the opinion of the Court and his Habeas Petition was denied on August 5, 2010. See ECF No. 18.
In order to determine whether Petitioner's current Rule 60(b)(6) Motion is in actuality a second or successive habeas petition, the next step is to review the substance of the motion itself. In his Motion, Petitioner claims that there has been a change in the law with respect to review of habeas petitions alleging actual innocence and he is currently in possession of evidence that was not previously known to him at the time of trial that establishes his innocence for the crimes of which he was convicted. The question now becomes whether Petitioner is advancing a new ground for relief or merely challenging the manner in which his Habeas Petition was denied. It is clear that he is doing the former.
Without going into the details of what evidence Petitioner claims he has that establishes his actual innocence, Petitioner appears to argue that he is entitled to relief based on Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir. 2018), a recent case out of the Third Circuit. Reeves, however, is neither factually, legally nor procedurally analogous to Petitioner's case. In Reeves, the district court had dismissed the petitioner's habeas petition as untimely even after the petitioner sought to excuse his petition's untimeliness based on the actual innocence exception to procedural default recognized in Schlup v. Delo, 513 U.S. 298 (1995), and extended to include time-barred petitions in McQuiggin v. Perkins, 569 U.S. 383 (2015). See Reeves v. Coleman, 2016 WL 7424265 (M.D. Pa. Oct. 17, 2016), adopted by 2016 WL 7411130 (M.D. Pa. Dec. 22, 2016). In attempting to define what constitutes "new evidence," the Third Circuit reversed the district court's dismissal of the petitioner's habeas petition holding that when a state prisoner asserts ineffective assistance of counsel based on counsel's failure to discover or present to the fact-finder the very exculpatory evidence that demonstrates his actual innocence, such evidence constitutes new evidence for purposes of the actual innocence miscarriage of justice gateway to excusing procedural default of a state prisoner's federal habeas claim. Reeves, 897 F.3d at 164.
The problem faced by Petitioner in this case is that, unlike the petitioner in Reeves, Petitioner did not have to pass through a gateway in order to have his claims reviewed on their merits because neither of his claims were barred by the statute of limitations or procedurally defaulted. Therefore, what Petitioner's Rule 60(b) Motion is actually asserting is simply a stand-alone, or freestanding claim of actual innocence. In explaining the difference between the two types of actual innocence claims, the Reeves court stated the following:
To the extent Petitioner relies on Satterfield v. District Attorney of Philadelphia, 872 F.3d 152 (3d Cir. 2017) in support of his argument that he can bring his claim of actual innocence by way of a Rule 60(b)(6) motion, his argument is misplaced. The district court in Satterfield dismissed the petitioner's habeas petition as time-barred and the petitioner filed a Rule 60(b)(6) motion seeking relief from that dismissal based on a claim of actual innocence that, if proven, should allow him to pass through the gateway to overcome the time-bar under AEDPA. Id. at 157-58. As with Reeves, the petitioner in Satterfield asserted actual innocence in order to overcome a procedural hurdle, which would then allow the court to review his time-barred claims on the merits. Here, however, Petitioner's claims were reviewed on their merits because there was no procedural hurdle barring this Court from doing so.
In contrast to gateway (or procedural) actual innocence claims, freestanding (or substantive) claims of actual innocence assert innocence without any accompanying constitutional defect in the trial resulting in the conviction. See Schlup, 513 U.S. at 313-16 (distinguishing between the two types of claims). The Supreme Court has not definitively resolved whether such freestanding actual innocence claims are cognizable, McQuiggin, 569 U.S. at 392, but to the extent they are, they are assessed under a more demanding standard, since the petitioner's claim is that his conviction is constitutionally impermissible "even if his conviction was the product of a fair trial," Schlup, 513 U.S. at 316. See House v. Bell, 547 U.S. 518, 555 (2006) (concluding that the petition satisfied the gateway innocence standard announced in Schlup but not the higher standard for freestanding innocence discussed in Herrera v. Collins, 506 U.S. 390, 417 (1993)). Gateway innocence claims, on the other hand, assert a claim of actual innocence "so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Schlup, 513 U.S. at 316.Reeves, 897 F.3d at 160, n.4.
Whether or not such a freestanding claim of actual innocence is cognizable in a habeas petition is of no importance here. What is important is that Petitioner's Rule 60(b) Motion is advancing such a freestanding actual innocence claim, and, therefore, pursuant to Gonzalez, the Motion is really a second or successive habeas petition over which this Court lacks jurisdiction. The certification requirement in 28 U.S.C. § 2244 expressly states that permission to file such a petition can only be granted by the court of appeals.
Nevertheless, a quick cursory review of the evidence presented by Petitioner alleged to be new and support his innocence falls far short of the proof of innocence required by either the gateway standard discussed in Schlup or the freestanding standard discussed in Herrera. The evidence is not even proof of Petitioner's factual innocence at all. Instead, what this evidence actually does is attack the credibility of Sgt. Dickens based on a personal incident that occurred between he and his estranged wife years after Petitioner was found guilty of the underlying crimes in this case. Not only could this evidence not have been presented at Petitioner's trial, because the incident in question had not yet occurred, it is likely that such evidence would not have even been admissible as Sgt. Dickens was not convicted of a crime of dishonesty and it did not involve his reputation for having a truthful or untruthful character. In addition, no matter how hard Petitioner attempts to connect the two, what happened with Sgt. Dickens and his estranged wife was completely irrelevant to Petitioner's case and to the role he played in Petitioner's criminal matters. See Pa. R.E. 404(a)(3), 607(b), 608(a), 609(a).
On a final note, Petitioner appears to also challenge the legality of his investigative detention by Sgt. Werner arguing that he lacked reasonable suspicion to stop him. To the extent Petitioner makes this challenge to support his claim of actual innocence, the Supreme Court has explained that such innocence means "factual innocence" and not "legal innocence." See Calderon v. Thompson, 523 U.S. 538, 559 (1998) ("[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence.").
Accordingly, for the aforementioned reasons, the Rule 60(b) Motion should be dismissed as a second or successive habeas petition over which this Court lacks jurisdiction because Petitioner has not yet received permission to file it by the Third Circuit Court of Appeals.
III. CONCLUSION
it is respectfully recommended that Petitioner's "Motion to Vacate, Rule 60(B)(6) of the Federal Rules of Civil Procedure," which is construed as a Motion for Relief from Judgment or Order filed pursuant to Federal Rule of Civil Procedure 60(b)(6), be dismissed as an impermissible second or successive habeas petition over which this Court lacks jurisdiction. Also, to the extent that a Certificate 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.
Dated: September 23, 2019.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Antonio D. Ferguson
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Counsel of record
(Via CM/ECF electronic mail)