Opinion
Civil Action 2:15-cv-01639
02-18-2022
JEVON A. EVERETT, Petitioner, v. SUPERINTENDENT, SCI FAYETTE, et al. Respondents.
District Judge Cathy Bissoon
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Petitioner's “Notice of Appeal, ” ECF No. 38, insofar as it is construed as a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), be denied.
II. REPORT
A. Background
On December 14, 2015, Petitioner filed a petition for writ of habeas corpus pursuant to U.S.C. § 2254, challenging the judgment of sentence of life imprisonment imposed following his conviction of first degree murder in the Court of Common Pleas of Allegheny County. ECF No. 1. On December 13, 2018, the petition was dismissed, a certificate of appealability was denied and final judgment was entered. ECF Nos. 22, 23. Petitioner sought a certificate of appealability from the United States Court of Appeals for the Third Circuit, but it was denied. ECF No. 33.
On November 5, 2019, Petitioner filed a Motion for Relief from Judgment pursuant to Rule 60(b). ECF No. 35. This Court denied the Motion, finding that Petitioner sought to relitigate issues contained in his habeas petition, that any effort to circumvent the Court of Appeals' ruling was rejected, and that any attempt to appeal the Court of Appeals' ruling in this Court was improper. ECF No. 36.
On February 14, 2022, Petitioner filed a “Notice of Appeal” in this Court. ECF No. 38. To the extent Petitioner seeks thereby to appeal a cited January 28, 2022, Pennsylvania Superior Court ruling, this Court is not the proper place to do so. However, in this filing, Petitioner also invokes Federal Rule of Civil Procedure 60(b)(6), thus, insofar as it can be construed as a Motion for Relief from Judgment pursuant to Rule 60(b), this Court will consider it.
B. Discussion
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds. Fed.R.Civ.P. 60(b). A motion under subsection 60(b)(6) must be brought “within a reasonable time, ” Fed.R.Civ.P. 60(c)(1), and requires a showing of “extraordinary circumstances” to justify the reopening of a final judgment. Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The Supreme Court has recognized that “[s]uch circumstances will rarely occur in the habeas context.” Id.
In this motion, filed more than three years after the entry of judgment, Petitioner baldly asserts the existence of “extraordinary circumstances.” ECF No. 38 at 1. He lists “actual innocence, fraud intrinsic and extrinsic, abuse of discretion, prosecutorial misconduct, miscarriage of justice, [and] newly discovered evidence, ” id., but he provides no factual basis for these claims. Further, Petitioner asserts that the state court was “wrong” and “unreasonable” in its determination of “harmle[ss]ness in wake of insufficiency of evidence.” Id. It is noted that the recent Pennsylvania Superior Court decision concerned only the untimely nature of a petition filed pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
In short, Petitioner provides no cause to disturb the Court's dismissal of his habeas petition.
C. Conclusion
For the foregoing reasons, it is respectfully recommended that Petitioner's “Notice of Appeal, ” ECF No. 38, insofar as it is construed as a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b), be denied.
In accordance with the Federal Magistrate Judge's 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 this Report and Recommendation to file written objections thereto. Any party opposing such 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.