Opinion
3:15-cv-131-KRG-KAP
07-02-2024
CHARLES BELLON, Petitioner v. TAMMY FERGUSON, Superintendent, S.C.I. Benner, Respondent
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Petitioner's latest Rule 60 motion at ECF no. 134 should be denied as an abuse of the writ, without certificate of appealability.
Report
In December 2023 I recommended (the recommendation is pending at ECF no. 127; ruling on this motion will effectively dispose of it too) that petitioner's previous Rule 60 motion at ECF no. 126 be denied for lack of jurisdiction and as an abuse of the writ. The lack of jurisdiction was due to the pendency at the Court of Appeals of petitioner's appeal from the Court's previous denial of relief to petitioner in this matter. The Court had no power to grant the relief petitioner seeks. The Court of Appeals has now ruled and issued the mandate in Bellon v. Superintendent, No. 22-1602 (3d Cir. January 12, 2024, mandate issued May 31, 2024). That removes the jurisdictional impediment.
Petitioner then filed the current motion at ECF no. 134, asserting that the circuit's opinion “proves that Petitioner's Rule 60(b) motion is meritorious.” Motion at 2. No, it is still an abuse of the writ.
Petitioner's new habeas petition is proceeding at Bellon v. Houser, Case No. 3:22-cv-44-KRG-KAP (W.D.Pa.). The stay in that case requested by petitioner in 2022 has been lifted. Petitioner's latest tacks in the course of that litigation have been to drop his opposition to the lifting of the stay and to seek amendment of his petition there. At the same time he continues to seek to litigate in this case, even after the Court of Appeals has ruled, for no other reason than his insistence that, despite adverse rulings, he is right. This is the latest example of what I have already described in Bellon v. Houser, see also Bellon v. Shapiro, Case No. 3:21-cv-100-KRG-KAP (W.D.Pa.)(recommendation pending): petitioner files motions everywhere in the expectation that the sheer volume of attempts multiplied by even a minimal probability of success will result in someone granting him release from custody.
The pending motion continues to seek to litigate what is in effect a new habeas petition within an old, closed habeas petition while a second habeas petition is proceeding. It, and all future variants of it, should be denied as an abuse of the writ.
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).