Opinion
Civil Action 15 - 1639
04-12-2023
JEVON A. EVERETT, Petitioner, v. SUPERINTENDENT, SCI FAYETTE, et al., Respondents.
CATHY BISSOON, DISTRICT JUDGE
REPORT & RECOMMENDATION
ECF NO. 43
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 (ECF No. 43) be dismissed for lack of subject matter jurisdiction and that a certificate of appealability be denied.
II. REPORT
A. Background
On December 14, 2015, Petitioner filed a petition for writ of habeas corpus pursuant to 28 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 Federal Rule of Civil Procedure 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, which was construed as a Motion for Relief from Judgment pursuant to Rule 60(b). (ECF No. 38.) The Court denied that Motion on March 14, 2022. (ECF No. 41.)
Petitioner has filed yet another Motion for Relief from Judgment pursuant to Rule 60(b). (ECF No. 43.) In this current Motion, Petitioner argues that this Court should reopen this case and grant him habeas relief due to fraud that has been committed upon the court - specifically, falsified evidence presented by police and government officials and a witness who “submitted to the conspiracy to commit fraud upon the court by committing perjury to save his own life.”
B. Discussion
Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances, including (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; (3) fraud or misconduct by an opposing party; (4) because the judgment is void; (5) because the judgment has been satisfied, released or discharged; and (6) any other reason that justifies relief. Fed.R.Civ.P. 60(b). Petitioner specifically invokes “Rule 60(b)(2)(6)” in his Motion, which is not a specific subsection under the Rule, but, given the fact that he repeatedly references “fraud upon the court” and specifically requests that this Court “overturn” or “vacate” his conviction “due to [f]raud upon the court,” the undersigned assumes that he invokes Rule 60(b)(3).
Rule 60(b)(3) allows a district court to “relieve a party or its legal representative from a final judgment, order, or proceeding” for “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” Fed.R.Civ.P. 60(b)(3). To prevail under Rule 60(b)(3), the movant must, by clear and convincing evidence, “establish that the adverse party engaged in fraud or other misconduct, and that this conduct prevented the moving party from fully and fairly presenting his case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983). A motion made under Rule 60(b)(3), must be filed “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).
Given that Petitioner has already filed a habeas petition challenging his judgment of sentence under 28 U.S.C. § 2254, this Court only has jurisdiction to consider his Rule 60(b) Motion if it is “a true Rule 60(b) motion” and not an attempt to circumvent the restrictions on second or successive petitions set forth in 28 U.S.C. § 2244(b) under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) by labeling the petition as something other than what it is. See Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005).
The Third Circuit has provided the following guidance for addressing Rule 60(b) motions that are potentially successive habeas petitions:
[I]n those instances in which the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b) motion seeks to collaterally attack the defendant's underlying conviction, the motion should be treated as a successive habeas petition.Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). More guidance on this subject was provided by the Supreme Court, which explained 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 stated 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 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, 380 F.3d at 727-28. 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. Gonzalez, 545 U.S. at 531-32; Pridgen, 380 F.3d at 725.
The undersigned understands Petitioner to be making an argument in support of relief under Rule 60(b)(3) by claiming that officers and detectives with the Pittsburgh Police, the assistant district attorney who prosecuted him, and one of the Commonwealth's witnesses all conspired to commit perjury and present false evidence at his trial, which he represents as “fraud upon the court.” While the Supreme Court has explained that a claim alleging “[f]raud upon the federal habeas court” is an example of a “defect” in the habeas proceedings which could be presented in a “true” Rule 60(b) motion, Gonzalez, 545 U.S. at 532, n.5, Petitioner's claim is premised on the fact that he believes individuals presented false evidence at his trial and therefore that fraud was committed upon the trial court, not this Court. Indeed, he presents no allegations of a defect in his federal habeas proceedings whatsoever, and what Petitioner is actually attempting to do is relitigate his trial or to use his Rule 60(b) Motion as yet another appeal of his conviction. This is impermissible. Therefore, the undersigned finds that, to the extent he is alleging such fraud and/or falsification of evidence at his trial, Petitioner's Rule 60(b) Motion should be construed and dismissed as an unauthorized second or successive habeas petition.
Nevertheless, as noted above, a motion pursuant to Rule 60(b)(3) is subject to a one-year limitations period, and Petitioner's current Motion was filed more than four years after final judgment was entered in this case. Therefore, even if Petitioner asserted a defect in his habeas proceedings based on fraud upon this Court pursuant to Rule 60(b)(3), it would be untimely.
The undersigned notes that Petitioner may also be attempting to invoke Rule 60(b)(6) to support his request for relief. Rule 60(b)(6) allows a court to grant equitable relief “in extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur.” Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014) (citation and internal quotation marks omitted). The petitioner “bears the burden of establishing entitlement to such equitable relief,” but the District Court “must consider the full measure of any properly presented facts and circumstances attendant to the [petitioner's] request.” Id. at 122. A motion made under Rule 60(b)(6) must be made within “a reasonable time.” Fed.R.Civ.P. 60(c)(1).
The only “extraordinary circumstance” argued by Petitioner in his Motion appears to be that certain unspecified documents, see ECF No. 43 (“Trial Transcripts, Discovery, Bill of Particulars and Counsel's Note along with [Petitioner]'s Case File and other Brady Material”), pertaining to his criminal case were stolen from the vehicle of his first trial counsel and therefore they were unable to be provided to his second trial counsel. He appears to argue that this resulted in trial counsel's ineffective assistance and also a due process violation because he was unable to properly plead his claims before the state court.
Petitioner does not argue, and the allegations in his Motion do not suggest, that he is challenging any procedural ruling made by this Court or challenging the manner in which his habeas petition was procured. Indeed, Petitioner presented four claims of ineffective assistance of counsel in his habeas petition. In adopting the Report and Recommendation, this Court ruled that all four of Petitioner's claims were unexhausted and procedurally defaulted, that Petitioner could not excuse the default of claim one, and that claims two through four were without merit even if he could excuse their default. (ECF Nos. 19 & 22.) While the Supreme Court has 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 a failure to exhaust or procedural default) that precluded a merits determination of the habeas application, Gonzalez, 545 U.S. at 532, n.4, claim one was the only claim in Petitioner's habeas petition not addressed on its merits, a claim that counsel was ineffective for failing to advise Petitioner of the substantial risks of not taking the ten to twenty year plea offer, and Petitioner does not show how his allegations of stolen documents relate to this Court's finding that the claim was procedurally defaulted. Instead, it appears that Petitioner is actually asserting new grounds for relief by arguing ineffective assistance of counsel and due process violations in connection with the stolen documents, and therefore his Motion must be construed and dismissed as an unauthorized second or successive habeas petition.
C. Certificate of Appealability
A certificate of appealability should be denied because reasonable jurists would not debate the dismissal of Petitioner's Motion for lack of subject matter jurisdiction. See 28 U.S.C. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
III. CONCLUSION
For the reasons stated, it is respectfully recommended that Petitioner's Motion for Relief from Judgment (ECF No. 43) be dismissed for lack of subject matter jurisdiction and that a certificate of appealability be denied.
In accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2, the parties are allowed fourteen (14) days from the date of service to file objections to this Report and Recommendation. 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.