The opinion of the court was delivered by: Edmund V. Ludwig, J.
AND NOW, this 5th day of February, 2009, the "Motion for Hearing Under 28 U.S.C. Rule 60(b)" (docket no. 34) filed by petitioner Wendell Hill is denied.
Following two jury trials in Pennsylvania state court (the first resulted in a mistrial), petitioner Wendell Hill, on April 3, 1984, was convicted of conspiracy and robbery. On November 21, 1984, he was sentenced to 10 to 20 years incarceration, to be served consecutively to a life sentence for an unrelated murder. Commonwealth v. Hill, No. 3107 EDA 2003, at 1-4 (Pa. Super., May 3, 2004). On October 6, 2005, after an unsuccessful direct appeal and protracted proceedings before the PCRA court, petitioner filed a pro se petition for writ of habeas corpus in this court, raising 15 claims. Over petitioner's objections, the Report and Recommendations of Magistrate Judge Peter B. Scuderi were approved and adopted, and the claims denied in two separate orders, dated June 8, 2006 and December 21, 2007.*fn1
Following entry of the latter order, petitioner appealed. On July 7, 2008, the Court of Appeals denied petitioner's appeal as follows:
The request for a certificate of appealability is denied. See Slack v. McDaniel, 519 U.S. 472, 484 (2000). Appellant has failed to demonstrate that trial or appellate counsel's performance was constitutionally deficient. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Furthermore, appellant's conviction is supported by sufficient evidence. See Sullivan v. Cuyler, 723 F.2d 1077, 1083-84 (3d Cir. 1983). Appellant has also failed to show that the trial court's jury instructions "so infected the trial that the resulting conviction violated due process." Jacobs v. Horn, 395 F.3d 92, 111 (3d Cir. 2005) (quotation and citation omitted). Finally, Hill has failed to show that the jurors in his trial were not impartial. See Irvin v. Dowd, 366 U.S. 717, 723 (1961). Hill v. Patrick, July 7, 2008 Order, CA No. 08-1057.
On August 26, 2008, petitioner filed this motion, purportedly under Fed. R. Civ. P. 60(b), requesting a hearing "to redress the issues set forth in his Habeas Corpus Petition that were still not adjudicated as was required by the United States Court of Appeals and which violated petitioner's due process right to meaningful appellate review." Petitioner's motion, at 1 (docket no. 34).
The gravamen of petitioner's motion is that this court incorrectly found some of his claims to be procedurally defaulted, and, therefore, did not adjudicate them, and incorrectly ruled on his other claims. The motion challenges the denial of the habeas petition on the merits. However, the Court of Appeals reviewed the decision of this court and found the denial of petitioner's claims to be supported by the record. ...