Opinion
3:07-cv-122-KRG-KAP
07-06-2023
MICHAEL FRANSICO DAY, Petitioner v. SCOTT KLINEFELTER, SUPERINTENDENT S.C.I. HOUTZDALE, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
The petitioner's “60(b)(6) Motion,” ECF no. 34, should be denied without prejudice to proceeding in the Court of Appeals as provided in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) at 28 U.S.C.§ 2244(b)(3).
Report
Petitioner Michael Day is an inmate currently at S.C.I. Houtzdale serving a life sentence (with a consecutive 5-20 year term) imposed on January 17, 1996 by the Allegheny County Court of Common Pleas (Honorable Robert Dauer) after Day was convicted of second degree murder of a three-year old child through asphyxiation by compression during a sexual assault. Following state court proceedings, Day filed a petition in 2007 for a writ of habeas corpus under 28 U.S.C.§ 2254 at the above number sub nom. Day v. Patrick, Case no. 3:07-cv-i22-KRG-KAP (W.D.Pa.). The petition was denied in August 2009. That same year a certificate of appealability was denied sub nom. Day v. Patrick, No. 08-4658 (3d Cir. December 9, 2009). Petitioner has twice unsuccessfully sought permission to file a second habeas petition. See In re Michael Day, No. 13-3281 (3d Cir. August 15, 2013)(denying leave to file a second or subsequent habeas petition); In re Michael Day, No. 19-1710 (3d Cir. August 1, 2019)(denying leave to file a second or subsequent habeas petition).
The pending motion describes the history of proceedings after the first habeas ended: in the Fall of 2016 petitioner obtained a copy of the autopsy report of the victim, found that it contained exculpatory evidence, and promptly filed a second collateral attack on his conviction and sentence under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa.C.S.§ 9541 et seq. That PCRA petition was denied by the trial court, and petitioner's pro se appeal was quashed by the Pennsylvania Superior Court in June 2020. However, petitioner did not receive notice of the quashing of his appeal until April 28, 2023. This motion followed shortly thereafter.
Petitioner asserts that the autopsy report is after-discovered evidence and that the after-discovered evidence shows that he is innocent of the murder and other crimes for which he was convicted. Although at Motion at 27 he expressly seeks as relief only to have his “erroneous sentences of rape and involuntary deviate sexual intercourse vacated,” his Motion as a whole makes it clear that he attacks his state court conviction in its entirety.
Day cannot use a Rule 60 motion to reopen the habeas proceedings at Day v. Patrick, Case no. 3:07-cv-122-KRG-KAP (W.D.Pa.), nor can he file the Rule 60 motion as a new federal habeas corpus petition. Day does not claim there was some defect in the original process that led to the Report and Recommendation or the Order denying his first petition: he claims that his underlying state court conviction is invalid based on his assertion that the autopsy report is after-discovered evidence and that a proper interpretation of the autopsy report exculpates him. He also re-asserts claims of trial error and ineffective assistance of trial counsel that he raised in the first habeas proceeding.
A Rule 60 motion, with or without newly discovered evidence, is neither a second opportunity to present claims raised in the original proceeding nor a device for raising claims that were not made in the original proceeding. In Gonzalez v. Crosby, 545 U.S. 524, 532-33 (2005), the Supreme Court held that a Rule 60(b) motion can be entertained when it challenges some alleged defect in the integrity of the original federal habeas proceedings but that a Rule 60(b) motion is a second or successive habeas petition if it attacks the federal court's previous resolution of a claim on the merits.
Since petitioner Day seeks the overturning of his conviction despite the failure of his previous habeas corpus petition, this is a second habeas petition. To the extend he can do that at all he must first obtain leave from the Court of Appeals. The Rule 60 motion must be denied without prejudice to filing the appropriate motion in the Court of Appeals pursuant to 28 U.S.C.§ 2244, which in relevant part states:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
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).