Opinion
3:08-cv-185-KRG-KAP
09-26-2022
ALLEN GLUE WILKINS, Petitioner v. SUPERINTENDENT, S.C.I. HOUTZDALE, Respondent
REPORT AND RECOMMENDATION
KEITH A. PESTO, MAGISTRATE JUDGE
Recommendation
This matter was remanded from the Court of Appeals to determine whether a certificate of appealability should be issued. A certificate of appealability should be denied in this matter.
Report
As I recounted in ECF no. 62, petitioner filed a habeas corpus petition in 2008 that was denied in 2010, without an appeal. In 2011, petitioner filed an application to file a second habeas that was denied by the Court of Appeals sub nom. In Re: Allen Wilkins, No. 11-4548 (3d Cir. February 17, 2012).
Things remained quiet for several years until 2020, when petitioner repeated his effort to file a subsequent petition at the Court of Appeals at In Re: Glue Wilkins, No. 201748 (3d Cir. June 24, 2020), and filed a second habeas petition here that was transferred to the Court of Appeals for the Third Circuit pursuant to 28 U.S.C.§ 2244(b)(3)(A), consolidated with the application he had filed there directly, and denied. See Wilkins v. Capozza, Case No. 2:20-cv-520-KAP (W.D.Pa. May 18, 2020), certificate of authorization denied sub nom. In Re: Glue Wilkins, No. 20-1963 (3d Cir. June 24, 2020).
Then, in January 2022, petitioner filed ECF no. 61, styled ‘Petitioner's Motion for Relief from Judgment and Orders,' citing Fed.R.Civ.P.60(b). I noted that the motion did not appear to be intended for this court since it was addressed to Patty Shwartz, one of the judges on the panel that denied his applications in 2020, and I also noted that petitioner filed a Rule 60 motion in October 2021 directed to Judge Shwartz at In Re: Glue Wilkins, No. 20-1748 (3d Cir. June 24, 2020). I ordered petitioner to clarify whether the motion was intended for this court (as opposed, for instance, to being a courtesy copy of the motion sent to the Court of Appeals) and if so why it was a motion under Rule 60(b) and not a repeated attempt to file a petition for a writ of habeas corpus that requires prior authorization from the Court of Appeals.
In response, petitioner filed notices of appeal here and at the circuit, ECF nos. 64 and 68, and a motion at ECF no. 69 that was the first page of the motion he filed at ECF no. 61, with Judge Shwartz' name overwritten with Judge Gibson's.
I denied ECF no. 69, observing at ECF no. 70 that the motion was only the edited first page of his previous motion, was not signed, and made no sense. I stated, “If petitioner wants this court to take some action he should plainly state what that action is, and why the court should take it.”
Petitioner again filed a notice of appeal at the circuit, ECF no. 75, and this time also an appeal to Judge Gibson at ECF no. 72. Petitioner also filed motions at ECF. 90 for return of legal work and at ECF no. 91 for a videoconference, motions that I denied at ECF no. 92. Petitioner appealed that order to Judge Gibson at ECF no. 93.
Judge Gibson denied both of petitioner's appeals to him on August 2, 2022 at ECF no. 103. Petitioner filed a notice of appeal at the circuit that was sent here and docketed at ECF no. 106. The circuit subsequently ordered, see ECF no. 109, a ruling on the issuance of a certificate of appealability.
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.
Petitioner is not entitled to a certificate of appealability. Petitioner has never clarified how his motion could be considered a Rule 60 motion but to the extent I can understand petitioner's arguments, most recently set forth in ECF no. 105, I think he considers Satterfield v. Dist. Att'y Philadelphia, 872 F.3d 152, 155 (3d Cir. 2017) as giving him a right to a hearing on what he calls an actual innocence claim. If that is the case, what he calls a Rule 60 motion would not be attacking the proceedings in this court in 2008, but rather advancing a new claim.
As the Supreme Court observed in Gonzalez v. Crosby, 545 U.S. 524, 532 (2005), alleging that the district court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is substantively entitled to habeas relief. Under 28 U.S.C.A. § 2244 (b)(1)-(3), petitioner must, before this court could consider any such claim, first obtain an order from the Court of Appeals authorizing this court to hear the merits of any such petition.
Petitioner has unsuccessfully tried to persuade the Court of Appeals to authorize a second habeas petition twice, once since Satterfield. Even if petitioner's motion was intended for this court, petitioner cannot try a third route to his goal by filing an improper Rule 60 motion attacking the merits of the long unappealed-from judgment in this matter and appealing from its denial. Because no proper petition for a writ of habeas corpus was before this court and no proper petition can be before this court without the authorization of the Court of Appeals, no certificate of appealability should be issued.
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).
Notice by ECF to counsel of record and by U.S. Mail to:
Allen (Glue) Wilkins FP-1629
S.C.I. Houtzdale
P.O. Box 1000 209 Institution Drive
Houtzdale, PA 16698