Opinion
Civil Action 06-741
04-26-2022
WILLIAM M. DANIELS, JR., Petitioner, v. HARRY E. WILSON, et al., Respondents.
David S. Cercone District Judge
REPORT AND RECOMMENDATION ECF NO. 57
Lisa Pupo Lenihan United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Petitioner's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(2), (3) and/or (6) (ECF No. 57) be dismissed for lack of jurisdiction as an unauthorized second or successive petition for writ of habeas corpus. To the extent that a certificate of appealability is required, it is recommended that it be denied.
II. REPORT
The following Background is taken from the undersigned's Report and Recommendation dated October 5, 2010. (ECF No. 29.)
Petitioner was charged with one count of Criminal Homicide, one count of Violation of the Uniform Firearms Act (VUFA) and one count of Criminal Conspiracy as a result of the September 20, 1994 shooting of Ronald Hawkins, a jitney driver who was shot to death while driving in the Mexican War Streets area of Pittsburgh, Pennsylvania. On September 24, 1998, Petitioner was convicted by a jury of Murder in the First Degree and the remaining charges in the Court of Common Pleas of Allegheny County. On November 23, 1998, the court sentenced Petitioner to a term of life imprisonment for the homicide conviction plus consecutive terms of 3% to 7, and 10 to 20 years' imprisonment on the remaining convictions. Petitioner filed a timely Notice of Appeal to the Superior Court of Pennsylvania and on November 1, 1999, the trial court issued its Opinion denying Petitioner's points on appeal (Commonwealth Exhibit 12, ECF No. 20-3). On November 27, 2000, the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence (Commonwealth Exhibit 19, ECF No.20-6). His Petition for Allowance of Appeal with the Pennsylvania Supreme Court was denied on June 22, 2001 (Commonwealth Exhibit 22, ECF No. 20-8).
On July 23, 2002, Petitioner filed a pro se petition pursuant to the Post-Conviction Relief Act (PCRA). New counsel filed an Amended PCRA Petition on October 3, 2003. On June 3, 2004, Judge Bigley issued a Notice of Intention to Dismiss Amended PCRA Petition (Commonwealth Exhibit 27, ECF No. 21-4) and on July 13, 2004, he dismissed the petition. Petitioner filed a Notice of Appeal and on July 6, 2005, the Superior Court affirmed the trial court's order denying Petitioner's PCRA petition (Commonwealth Exhibit 34, ECF No. 21-7). On October 19, 2005, Petitioner filed a Petition for Allowance of Appeal wherein he argued, inter alia, that the Superior Court erred in ruling on the merits of the claim of Eric Ross' recantation instead of remanding that claim for an evidentiary hearing. On March 8, 2006, the Supreme Court granted the petition solely with respect to Petitioner's claim that the Superior Court erred in considering the recantation testimony of Eric Ross (Commonwealth Exhibit 38, ECF No. 21-10). As a result, the Supreme Court vacated the Order of the Superior Court in part and remanded the case.
On May 19, 2006, Petitioner filed a Supplemental Petition Pursuant to the PCRA. On July 15, 2008, an evidentiary hearing was held. On July 15, 2008, Judge Bigley dismissed the petition. Petitioner filed a Notice of Appeal and on October 17, 2008, Judge Bigley filed his Opinion denying PCRA relief (Commonwealth Exhibit 49, ECF No. 22-5). On May 5, 2009, the Superior Court affirmed the judgment of the trial court denying PCRA relief (Commonwealth Exhibit 53, ECF No. 22-7). Petitioner filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on September 30, 2009.
On June 7, 2006, Petitioner filed his Petition for Writ of Habeas Corpus in this action. On November 1, 2006, the case was stayed to enable Petitioner to present his unexhausted claim to the Pennsylvania state courts. On November 2, 2009, the Commonwealth filed a Notice of Completion of State Appeal and on November 6, 2009, the Court reopened Petitioner's case. On October 5, 2010, the undersigned entered a Report and Recommendation addressing each of Petitioner's claims and recommending that the Petition be denied and that a certificate of appealability also be denied. (ECF No. 29.) After Petitioner filed Objections, the Court entered an Order adopting the Report and Recommendation and denying the Petition and a certificate of appealability. (ECF No. 32.) Petitioner appealed, and the Third Circuit Court of Appeal affirmed the denial of the petition on December 11, 2012. (ECF No. 38.)
Petitioner filed a Motion pursuant to Federal Rule of Civil Procedure 60(b)(3) and/or (6) on January 8, 2013 (ECF No. 40), which was ultimately denied on July 24, 2013 (ECF No. 51). The Third Circuit denied Petitioner a request for a certificate of appealability on November 8, 2013. (ECF No. 54.)
Petitioner sought leave to file a second or successive petition for writ of habeas corpus pursuant to 28 U.S.C. § 2244(b) on October 5, 2015, and the Third Circuit denied his application on October 21, 2015. See In re: William Daniels, Jr., 15-3357 (3d Cir.).
He again sought leave to file a second or successive petition for writ of habeas corpus on October 31, 2018, and the Third Circuit denied that application on November 21, 2018. See In re: William Daniels, Jr., 18-3412 (3d Cir.).
Petitioner has filed another Rule 60(b) Motion this time invoking sections (2), (3) and/or (6). (ECF No. 57.) It is largely based on what he deems as “newly discovered evidence” in the form of an investigative report provided by a private detective dated March 1, 2022. Petitioner argues that the report demonstrates his actual innocence.
B. Discussion
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds, including those sections relevant here insofar as Petitioner has invoked them, (2) “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);” (3) “fraud . . . misrepresentation, or misconduct by an opposing party;” and (6) “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). A motion under 60(b) must be made “within a reasonable time” and “for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c)(1).
For habeas petitioners, Rule 60(b) may not be used to avoid the prohibition against second or successive petitions set forth in 28 U.S.C. § 2244(b). An applicant seeking habeas relief “is not permitted to circumvent AEDPA's second or successive petition requirements simply by labeling the petition . . . as something other than what it is.” Federal Habeas Manual §11:42. In Gonzalez v. Crosby, 545 U.S. 524 (2005), the United States Supreme Court addressed the circumstances in which the utilization of Rule 60(b) is “inconsistent with” § 2244(b)'s second or successive requirements and, as a consequence, not available to a state prisoner seeking habeas relief. The Court held that a Rule 60(b) motion must be construed as a habeas application subject to § 2244(b)'s requirements when it advances one or more “claims.” Gonzalez, 545 U.S. at 531-32. The Court explained that “[i]n most cases, determining whether a Rule 60(b) motion advances one or more ‘claims' will be relatively simple.” Id. at 532. Where “[a] motion . . . seeks to add a new ground for relief” it obviously is advancing a “claim.” Id. So is a motion that “attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.” Id. (footnote omitted). Similarly, a motion that seeks to present newly discovered evidence in support of a claim previously denied presents a “claim.” Id. The Court explained that a Rule 60(b) motion is a “true” 60(b) motion if it challenges only a procedural ruling of the habeas court (such as failure to exhaust, procedural default or a statute of limitations bar) that precluded a merits determination of the habeas application, Id. at 532 n.4, or challenges a defect in the integrity of the federal habeas proceedings, such as an assertion of fraud. Id. at 532.
Thus, when a document designated as a Rule 60(b) motion is filed with the district court in a habeas case, the judge assigned to the case must first determine, using the criteria outlined in Gonzalez, whether the motion is a true Rule 60(b) motion or is actually a second or successive habeas petition. If the judge concludes that the motion is a true Rule 60(b) motion, the motion should be ruled upon in the manner any other Rule 60(b) motion would be. Gonzalez, 545 U.S. at 533-36. See also Pridgen v. Shannon, 380 F.3d 721, 727-28 (3d Cir. 204). If, however, the judge concludes that the motion appears to be an unauthorized second or successive habeas petition, it must be dismissed for lack of subject matter jurisdiction or be transferred to the court of appeals for consideration as an application to file a second or successive petition. Id. at 53132; Pridgen, 380 F.3d at 725; Robinson, 313 F.3d at 139.
In his Rule 60(b) Motion, Petitioner does not appear to be challenging any procedural ruling made by this Court or the manner in which his habeas petition was procured. Instead, he appears to be raising a stand-alone, or freestanding, claim of actual innocence. In this regard, claims of actual innocence have classically served as gateway claims through which a court may reach an otherwise barred or defaulted claim rather than a stand-alone basis for relief. In explaining the difference between the two types of actual innocence claims, the Third Circuit has stated:
The Court notes that none of the claims raised in Petitioner's habeas petition were denied for a procedural reason.
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 definitely 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 v. Fayette SCI, 897 F.3d 154, 160 n.4 (2018).
As previously stated, Petitioner is not raising actual innocence as a gateway to excuse procedural default or a time bar. Indeed, each of Petitioner's claims that were raised in his habeas petition were addressed and disposed of on their merits. Rather, Petitioner brings a substantive claim based solely on actual innocence, a claim that the Supreme Court has not yet stated is cognizable, only that if recognized the threshold would be “extraordinarily high” and would require more convincing proof than the gateway standard under Schlup. However, whether or not such a freestanding claim of actual innocence is cognizable is of no importance here since Petitioner is advancing his actual innocence claim not in a habeas petition, but in a Rule 60(b) motion. Pursuant to the criteria outlined in Gonzalez, advancing such a claim in a Rule 60(b) motion renders it a second or successive habeas petition. 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, and a review of the Third Circuit's docket reveals that Petitioner has not yet received that permission. Accordingly, this Court does not have jurisdiction to entertain Petitioner's claim.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Petitioner's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(2), (3) and/or (6) (ECF No. 57) be dismissed for lack of jurisdiction as an unauthorized second or successive petition for writ of habeas corpus. To the extent that a certificate of appealability is required, it is recommended that it 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.