Harper v. Vaughn

• Decision Date: 23 July 2003
• Docket Number: Civil Action No. 98-728.
• Citation: 272 F.Supp.2d 527
• Parties: Anthony HARPER, Petitioner, v. Donald T. VAUGHN, Attorney General of the Commonwealth of Pennsylvania, and District Attorney of Philadelphia County, Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 527

272 F.Supp.2d 527

Anthony HARPER, Petitioner, v. Donald T. VAUGHN, Attorney General of the Commonwealth of Pennsylvania, and District Attorney of Philadelphia County, Respondents.

Civil Action No. 98-728.

United States District Court, E.D. Pennsylvania.

July 23, 2003.

Anthony Harper, Graterford, PA, Teri Himebaugh, Abramson and Denenberg PC, Philadelphia, PA, for Petitioner.

John W. Goldsborough, District Attorney's Office, Thomas W. Dolgenos, District Attorney's Office, Assistant District Attorney, Philadelphia, PA, for Respondents.

MEMORANDUM

DuBOIS, District Judge.

I. INTRODUCTION

Petitioner, Anthony Harper, is a state prisoner currently serving a life sentence for first degree murder and a consecutive sentence of ten-to-twenty years for robbery at the State Correctional Institute in Graterford, Pennsylvania. Presently before the Court is petitioner's pro se submission entitled "Relief From Judgment or Order Under Rule 60(b)," filed on May 28, 2003 ("Rule 60(b) Motion").

In the Rule 60(b) Motion, petitioner seeks relief from the Memorandum and Order dated February 21, 2002, denying his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). He raises two arguments in that Motion. First, he argues that the Court committed error in failing to review his claim of actual innocence under the analysis employed by the Second Circuit in Whitley v. Senkowski, 317 F.3d 223 (2d Cir.2003). Second, he argues that the Court failed to grant him a "fair hearing" on his Petition. For the reasons set forth in this Memorandum, the Court denies the Rule 60(b) Motion.

II. BACKGROUND

In this Memorandum, the Court will set forth only the facts and procedural history necessary to analyze the Rule 60(b) Motion. A detailed factual and procedural history may be found in Magistrate Judge Angell's Report and Recommendation dated February 20, 2001 and the Court's previously reported opinion in this case. See Harper v. Vaughn, No. 98-728, 2002 WL 257850, at *1-2 (E.D.Pa. Feb. 21, 2002); Report and Recommendation at 2-3 (Feb. 20, 2001) (quoting Commonwealth v. Harper, 346 Pa.Super. 105, 499 A.2d 331, 333-34 (1985)).

On February 13, 1998, petitioner filed a pro se Petition in federal court alleging eighteen claims for relief. A subsequent counseled memorandum of law narrowed the claims for relief to five. By Report and Recommendation dated February 20 2001,¹ Magistrate Judge Angell recommended that the Petition be denied without an evidentiary hearing. Magistrate Judge Angell's recommendation was based, inter alia, on her conclusions that (1) several of petitioner's claims were procedurally defaulted and (2) petitioner had not satisfied his burden to excuse the procedural default through his "bald assertions" of "cause and prejudice" and "actual innocence." Report and Recommendation at 13. Magistrate Judge Angell recommended that the remaining claims be denied on the merits.

Petitioner thereafter filed objections to the Report and Recommendation on March 7 and 8, 2001.² In objecting to the Report and Recommendation, petitioner argued that the Court's failure to consider his procedurally defaulted claims would result in a fundamental miscarriage of justice. By Memorandum and Order dated February 21, 2002, after de novo consideration³ of the Report and Recommendation and petitioner's objections, the Court overruled the objections, adopted the Report and Recommendation and declined to hold an evidentiary hearing. Harper, 2002 WL 257850, at *3-10. The Court ruled that the state trial court's findings of fact were not unreasonable in light of the evidence presented and that petitioner had failed to present sufficient evidence supporting his claim of actual innocence to overcome any procedural default. The Court also declined to issue a certificate of appealability because petitioner had failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(3).

On March 22, 2002, petitioner filed a Notice of Appeal of this Court's decision in the Court of Appeals for the Third Circuit. Thereafter, he filed a motion for a certificate of appealability in that court. By letter dated April 3, 2002, the motion was referred to a panel of the Third Circuit for consideration.⁴ See Letter from Laura L. Greene, Staff Attorney, Legal Division of the Office of the Clerk, U.S. Court of Appeals, to Teri B. Himebaugh, Esq., at 1 (Apr. 3, 2002). By Order dated November 27, 2002, a three judge panel of the Third Circuit Court of Appeals denied petitioner's motion for a certificate of appealability. The denial of petitioner's motion for a certificate of appealability was based on the three judge panel's finding that "[a]ppellant ha[d] failed to make a substantial showing of the denial of a constitutional right." Harper v. Vaughn, No. 02-1826 slip op. (3d Cir. Mar. 27, 2002) (citing 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

Petitioner thereafter filed a pro se submission entitled "Appeal to Set Aside Verdict of District Court Decision for Not Turning Over A True Copy of Memorandum" in the Third Circuit on April 25, 2003. In that submission, petitioner stated that he had filed a petition for certiorari in the United States Supreme Court and was told by letter from the Clerk of Court that the Supreme Court would not review his petition for certiorari because the copy of this Court's Memorandum and Order dated February 21, 2002 that petitioner had attached to his petition for certiorari was incomplete. Petitioner further stated in his pro se Appeal that he "didn't receive a full copy of Judge DuBois's memorandum nor did the Appeals Court" and, therefore, "the decision should be made to set aside the verdict by the District Court." The Clerk of Court for the United States Court of Appeals for the Third Circuit responded to petitioner's pro se Appeal on May 16, 2003 and informed him that no action would be taken with respect to that submission because proceedings in that court had concluded and the Third Circuit "lack[ed] authority to grant substantive relief." The Clerk further noted that the copy of this Court's Memorandum and Order dated February 21, 2002 certified to the Third Circuit was complete and, therefore, the panel that rejected his motion for a certificate of appealability made its decision based on a review of a complete copy of this Court's Memorandum and Order.

Petitioner thereafter filed the instant Rule 60(b) Motion in this Court on May 28, 2003.

III. DISCUSSION

A. APPLICABILITY OF THE AEDPA LIMITATION ON SECOND OR SUCCESSIVE HABEAS PETITIONS TO A MOTION FILED UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b)

Before passing on the merits of petitioner's Rule 60(b) Motion, the Court must determine whether that motion is, in essence, a second or successive § 2254 habeas motion. Such a ruling is necessary because the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214, limits a petitioner's ability to bring a second or successive habeas petition. See 28 U.S.C. § 2244(b).⁵ A state prisoner seeking to file a second or successive § 2254 habeas petition must, as a preliminary step, obtain an order from the appropriate court of appeals authorizing the district court to consider such a motion. See 28 U.S.C. § 2244(b)(3)(A).

The Third Circuit has not directly addressed the question of whether a Rule 60(b) motion to vacate a judgment denying habeas relief is considered a second or successive habeas petition. A number of courts in this and other circuits have adopted the view that a Rule 60(b) motion is per se the functional equivalent of a successive petition and therefore cannot be considered by a district court without authorization from the court of appeals in the circuit in which that court sits. See Pridgen v. Shannon, No. CIV.A. 00-4561, 2002 WL 31122131, at *3 n. 5 (E.D.Pa. Sept.26, 2002) (collecting cases). The Second Circuit has adopted the equally sweeping view that a Rule 60(b) motion to vacate a judgment denying habeas relief should never be construed as a successive habeas petition, and "[t]he fact that the court to which the motion is addressed might conceivably go farther and grant the habeas in response to the [Rule 60(b)] motion does not ... make such a motion a second habeas petition." Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir.2001).

The First and Seventh Circuits have adopted a third approach. Rodwell v. Pepe, 324 F.3d 66, 71 (1st Cir.2003); Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002); Banks v. United States, 167 F.3d 1082 (7th Cir.1999) (per curiam). Those Circuits held that a district court should treat a Rule 60(b) motion as a successive habeas petition requiring prior Court of Appeals authorization only if the Rule 60(b) motion challenges the underlying conviction. If, instead, the Rule 60(b) motion challenges the integrity of the federal habeas proceedings, it is allowed to proceed without prior Court of Appeals authorization. Rodwell, 324 F.3d at 71; Banks, 167 F.3d at 1084.

This Court, in Pridgen, 2002 WL 31122131, at *3 & n. 5, noting the absence of guidance from either the Third Circuit or the Supreme Court on this issue,⁶ opted to follow the rationale adopted by the Seventh Circuit.⁷ It did so because "adoption of the approach utilized by the Second Circuit in Rodriguez would mean that in virtually every case in which a prisoner contends he has newly discovered evidence of his innocence or trial error — the very relief sought in the original habeas corpus proceeding — the limitations on second or successive habeas motions imposed by the AEDPA could be avoided by resort to Rule 60(b)." Id. at *5; see also United States v. Harris, 252 F.Supp.2d 500, 504, 2003 WL 21361432, at *3 (E.D.Pa. June 9, 2003) (Dalzell, J.) (ruling "... that a petitioner may invoke Rule 60(b) to challenge a habeas dismissal unless the motion...