Opinion
3:11-cv-190-KRG-KAP
12-13-2023
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 styled Subsequent Motion For Relief From Judgment Under Fed.R.Civ.P. 60(b)(6), ECF no. 36, should be denied. Frivolous petitions should occasion instant dismissal. McQuiggin v. Perkins, 569 U.S. 383, 400 (2013).
Report
As the Subsequent Motion recites, petitioner's second most recent Motion For Relief From Judgment Under Fed.R.Civ.P. 60(b)(6) at ECF no. 33 and my recommendation that it be denied at ECF no. 34 are still pending. The Court can wrap them both up together because although the issues that they present are different, the relief they request is the same. I do not repeat the procedural history of the case.
In the Subsequent Motion petitioner claims to be actually innocent and therefore excused from procedural default, because he was entrapped. A credible claim of actual innocence would excuse procedural default, but as the Court of Appeals has written during the months between petitioner's two motions, a petitioner claiming actual innocence has a “heavy burden” to hurdle “a supremely high bar” by demonstrating -not just claiming- “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Glover v. Superintendent Fayette SCI, No. 22-2126, 2023 WL 5220922, at *2 (3d Cir. Aug. 15, 2023)(citations omitted).
Petitioner's motion fails for two independent reasons. First, petitioner points to no new evidence, in fact discusses no evidence not already available at the time of trial (and therefore by the time of the first habeas petition) and second, his claim that he was entrapped to take part in the distribution of controlled substances is not a claim of actual innocence as that term is used in habeas jurisprudence. To the contrary, a claim of entrapment admits petitioner's participation in events but asserts the affirmative legal defense that the government induced the illegal conduct in a person without predisposition. If that defense was not properly presented to the state courts, it could not have been presented in the first habeas petition and cannot be presented here. See Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022) (Procedural default causes federal courts to decline to hear any federal claim that was not properly presented to the state courts.) It certainly cannot be recharacterized as a claim of actual innocence.
Petitioner correctly argues that in other contexts “innocence” includes legal innocence through assertion of affirmative defenses such as entrapment. Petitioner points out that in nine of the ten circuits to have addressed the issue, a claim of legal innocence based on entrapment is a claim of innocence that can support the withdrawal of a guilty plea. United States v. James, 928 F.3d 247, 253 (3d Cir. 2019). In habeas, however, the claim of innocence that will excuse procedural default requires a showing that the petitioner is “actually” innocent. Murray v. Carrier, 477 U.S. 478, 496 (1986). What that adverb means in capital cases was extensively discussed in Sawyer v. Whitley, 505 U.S. 333, 341 (1992), where the Court observed: “In the context of a noncapital case, the concept of ‘actual innocence' is easy to grasp,” and gave as the “prototypical” example the case where the wrong person was convicted. A good example (which happens to be a capital case) is House v. Bell, 547 U.S. 518, 540 (2006), in which substantial new evidence pointed to a suspect other than House and made it “more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt” about House's commission of the murder. Id., 547 U.S. at 554. That actual innocence does not extend to hypothetical legal defenses is made clear in the leading case on actual innocence, Schlup v. Delo, 513 U.S. 298 (1995). The Court held that a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,” 513 U.S. at 327 and that “requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” 513 U.S. at 324 (my emphases). That requirement of new evidence was again explicitly made in McQuiggin v. Perkins, 569 U.S. 383, 395 (2013), and has faithfully been applied in the Court of Appeals. See Howell v. Superintendent Albion SCI, 978 F.3d 54 (3d Cir. 2020). So has the distinction between legal insufficiency and factual innocence. See Reeves v. Fayette SCI, 897 F.3d 154, 160 (3d Cir. 2018).
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. Under that standard, 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