Opinion
3:11-cv-190-KRG-KAP
06-06-2023
THOMAS RAY ALLEN, Petitioner v. JOSEPH MAZURKIEWICZ, Jr., WARDEN, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Petitioner's most recent Motion For Relief From Judgment Under Fed.R.Civ.P. 60(b)(6), ECF no. 33, should be denied.
Report
Hard on the heels of the Court's adoption (on May 11, 2023, see ECF no. 32) of my recommendation (see ECF no. 29) that petitioner's previous Motion For Relief From Judgment Under Fed.R.Civ.P. 60(b)(6) at ECF no. 28 be denied, petitioner has filed another motion under Fed.R.Civ.P. 60(b)(6). There is no need to repeat the previous history of the case in full, which petitioner adequately sets out at Motion ¶¶2-5.
This Rule 60 motion argues that I erred in portions of my original Report and Recommendation (at ECF no. 21) in 2014. See Motion at III ¶15. Petitioner appealed from the Court's adoption of that recommendation, and a certificate of appealability was denied. 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). A Rule 60 motion is neither a second opportunity to raise the same claims raised in the original appeal nor a device for raising claims not raised in the original appeal. The Court of Appeals has clearly stated that since legal error can usually be corrected on appeal a claim of legal error without more does not justify the granting of relief under Rule 60(b)(6). See James v. Virgin Islands Water & Power Authority, 119 Fed.Appx. 397, 401 (3d Cir. 2005)(citations omitted)
To the extent a certificate of appealability is relevant to any appeal, none should issue. 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 Rule 60 cannot be used as petitioner seeks to use it, 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