The opinion of the court was delivered by: Joel H. Slomsky, J.
Before the Court is Petitioner Freddie Akiens' pro se Motion for Equitable Relief Pursuant to Fed. R. Civ. P. 60(b)(6) and 60(b)(4) (Doc. No. 1). For the reasons that follow, all relief sought in Petitioner's Motion is DENIED.
On May 31, 1994, upon his conviction by a jury in the Court of Common Pleas of Philadelphia County, Petitioner was sentenced to a mandatory life sentence for murder and consecutive sentences of eleven and one-half to twenty-three months for possession of an instrument of a crime, and twenty-four to forty-eight months for conspiracy. On December 29, 1994, the Superior Court of Pennsylvania affirmed the trial court's sentence. See Commonwealth v. Akiens, 657 A.2d 46 (1994). Thereafter, Petitioner filed multiple Post Conviction Relief Act ("PCRA") petitions, all of which were dismissed by the PCRA court. The Pennsylvania Supreme Court affirmed all of the dismissals.
Petitioner filed his first PCRA petition on November 20, 1996.*fn1 (See Order Adopting Report & Recommendation, Akiens v. Vaughn, 01-cv-396 (Doc. No. 11).) That petition was timely filed and, as amended, asserted that Mark Linden, the prosecution's sole identification witness at trial, recanted his testimony in which he identified Petitioner as the killer. (Id.) On February 20, 1998, the PCRA court dismissed the PCRA petition, and on June 11, 1999, the Pennsylvania Superior Court affirmed that dismissal. (Id.) The Pennsylvania Supreme Court denied allocatur on January 27, 2000. (Id.)
Petitioner filed a second PCRA petition on April 19, 2000. (Id.) That petition was dismissed as untimely by the PCRA court on September 14, 2001. (Id.) On December 20, 2002, the Pennsylvania Superior Court affirmed the order denying the PCRA petition as untimely. Petitioner did not seek allocatur.
Petitioner filed a third PCRA petition on September 24, 2004. (Id.) The PCRA court again dismissed the petition as untimely. (Id.) On March 2, 2006, the Pennsylvania Superior Court affirmed the order denying the PCRA petition as untimely.
Petitioner has filed two prior federal habeas corpus petitions with the Court (Giles, J.) pursuant to 28 U.S.C. § 2254. Both petitions attacked the same state court conviction and the sentence imposed on May 31, 1994 that is attacked in the instant Rule 60(b) petition. On January 25, 2001, while Petitioner's second PCRA petition was pending in the Philadelphia Court of Common Pleas, Petitioner filed his first § 2254 petition, captioned in this Court as Akiens v. Vaughn, 01-cv-396. On November 7, 2001, the Court (Giles, J.) dismissed the § 2254 petition without prejudice because it contained claims that were still pending in state court. On April 17, 2006, Petitioner filed a motion in the Third Circuit seeking leave to file a second or successive habeas corpus petition. On September 28, 2006, the Third Circuit ruled that the motion was moot because Petitioner's first petition had been dismissed by Judge Giles without prejudice and this ruling permitted petitioner to refile his habeas petition. See In re: Freddy Akiens, C.A. No. 06-3695 (3d Cir. Sept. 28, 2006).
On November 15, 2006, Petitioner filed his second habeas corpus petition, captioned as Akiens v. Wynder, 06-cv-5239. That petition raised a claim of actual innocence based on Petitioner's claim that Mark Linden, the prosecution's sole identification witness at trial, recanted his testimony in which he identified Petitioner. Petitioner argued that, pursuant to 28 U.S.C. § 2244(d)(1)(D), the AEDPA statute of limitations should begin to run on September 1, 1996, the date that Mr. Linden recanted his testimony and when this evidence was discovered through the exercise of due diligence.*fn2
On April 26, 2007, Magistrate Judge Carol Moore Wells issued a Report and Recommendation that Petitioner's second habeas corpus petition be denied as untimely pursuant to the AEDPA statute of limitations. See Akiens v. Wynder, 06-cv-5239, 2007 WL 1810687, at *3 (E.D. Pa. June 20, 2007). Judge Wells noted that, even using the alternative starting date allowed by § 2244(d)(1)(D), Petitioner's habeas corpus petition was untimely.*fn3 Id. Judge Wells further noted that Petitioner did not qualify for statutory tolling or equitable tolling pursuant to Third Circuit law. Id. at *3-4. On June 20, 2007, the Court (Giles, J.) approved and adopted Judge Wells' Report and Recommendation and dismissed Petitioner's habeas corpus petition. Akiens v. Wynder, 2007 WL 1810687. Petitioner filed a notice of appeal to the Third Circuit, but that Court denied his request for a certificate of appealability. See Akiens v. Wynder, No. 07-3080 (3d Cir. Oct. 5, 2007).
A. The Writ of Habeas Corpus Generally
The Antiterrorism and Effective Death Penalty Act of 1996 (commonly known as "AEDPA," and codified as 28 U.S.C. §§ 2241-2266) deals with the right of all persons in state custody, or in federal custody, to file a petition in a federal court seeking the issuance of a writ of habeas corpus. In the context of a prisoner in state custody, if a writ of habeas corpus is issued by a federal court, the prisoner will be released from state custody. Habeas corpus motions pursuant to AEDPA are the only possible means of obtaining this type of relief from state custody. Benchoff v. Colleran, 404 F.3d 812 (3rd Cir. 2005); Coady v. Vaughn, 251 F.3d 480 (3rd Cir. 2001).
To limit the scope of this extraordinary relief and to promote finality in state and criminal prosecutions, Congress enacted a series of intentionally restrictive gate-keeping conditions which must be satisfied for a prisoner to prevail in his petition. One restrictive gate-keeping condition is AEDPA's one-year statute of limitations, created by 28 U.S.C. § 2244(d). Another restrictive gate-keeping condition is AEDPA's "second or successive rule," set forth in 28 U.S.C. § 2244(b), which forbids a litigant from filing a § 2254 habeas petition if that litigant had at least one ...