Opinion
3:08-cv-185-KRG-KAP
04-17-2023
ALLEN GLUE WILKINS, Petitioner v. SUPERINTENDENT, S.C.I. HOUTZDALE, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto United States Magistrate Judge
Recommendation
Petitioner's most recent Rule 60 motion, ECF no. 141, should be denied. A certificate of appealability should be denied as well.
Report
The procedural history of this matter, summarized at ECF no. 110, should be fresh in the Court's mind since the petitioner's last invocation of Rule 60 ended in January of this year with the Court of Appeals' denial of a certificate of appealability in Wilkins v. Superintendent, No. 22-2760 (3d Cir. January 20, 2023). See ECF no. 138. A couple of month later, petitioner is back with another Rule 60 motion that this court lacks jurisdiction over. Under the Antiterrorism and Effective Death Penalty Act, as codified at 28 U.S.C.§ 2244(b)(3)(A), a district court lacks jurisdiction to consider claims presented in a “second or successive habeas corpus application” unless the Court of Appeals authorizes the Court to consider the petition in accordance with the criteria in 28 U.S.C.§ 2244(b)(2). This, like the last Rule 60 motion and like the petition in Wilkins v. Capozza, Case No. 2:20-cv-520-KAP (W.D.Pa.), authorization denied, No. 20-1963 (3d Cir. June 24, 2020), is a successive petition.
In Banister v. Davis, 140 S.Ct. 1698, 1705-06 (2020), in the course of holding that a Rule 59 motion promptly filed to alter a judgment in a habeas matter was not a second or successive petition, the Supreme Court explained that defining “second or successive” is based, first, on historical habeas doctrine and practice: if in pre-AEDPA cases a filing would have constituted an abuse of the writ, “it is successive; if not, likely not.” Second, “second or successive” is defined in light of AEDPA's purposes of conserving judicial resources, reducing piecemeal litigation, and lending finality to state court judgments within a reasonable time. See also Gonzalez v. Crosby, 545 U.S. 524, 532-33 (2005)(a Rule 60(b) motion seeking to vacate the judgment in a habeas matter is a second or successive habeas petition if it attacks the federal court's previous resolution of a claim on the merits, but not if it raises some defect in the integrity of the previous federal habeas proceedings.)
This Rule 60 motion presents the same claim that was previously presented to the Court of Appeals, namely that as petitioner interprets the record of his trial there was a medical report that exculpates him, and that he is therefore entitled to a hearing on his actual innocence under Satterfield v. Dist. Att'y Philadelphia, 872 F.3d 152, 155 (3d Cir. 2017). That is a claim on the merits of petitioner's right to release that this Court cannot consider without authorization.
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 seems to be presenting the same claim that he presented in his previous Rule 60 motion with only slight changes in form. If so, then the motion is an abuse of the writ. If there is anything more to the motion, it is not clearly stated.
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