The opinion of the court was delivered by: Norma L. Shapiro, S.J.
Petitioner Frederick Burton filed a Petition for Writ of Habeas Corpus (paper nos. 1 and 5) on May 28, 2009, seeking to challenge, under 28 U.S.C. § 2254, his 1972 conviction for murder, assault and battery with intent to kill, and conspiracy in the Court of Common Pleas of Philadelphia County, Pennsylvania. On August 6, 2009, the court dismissed the petition as a successive filing. (Paper no. 7). Burton filed requests for reconsideration. (Paper nos. 8-12). For the reasons stated below, the court will grant in part Burton's Second Amended Motion for Reconsideration: because the petition constitutes a "second or successive" petition under the meaning of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),28 U.S.C. § 2244(b), this court will transfer petitioner's case to the United States Court of Appeals for the Third Circuit under 28 U.S.C. § 1631, in order that the Court of Appeals may determine whether the petition may be addressed on the merits in the district court. See 28 U.S.C. § 2244(b)(3).
I. FACTUAL AND PROCEDURAL BACKGROUND
Burton, an inmate at State Correctional Institution at Somerset, seeks to challenge the sentence imposed following his conviction in the Court of Common Pleas of Philadelphia County, Pennsylvania. Burton was tried for his role in the conspiracy to kill Philadelphia Police Officer Frank R. Von Colln on August 29, 1970. Burton was convicted by a jury of murder in the first degree, assault and battery, and criminal conspiracy.*fn1 The jury recommended life imprisonment for the murder conviction. On December 12, 1973, petitioner was sentenced to life imprisonment for murder with a concurrent life term for conspiracy. An additional one to two year sentence was imposed for assault and battery to run concurrent with the murder sentence but consecutive to the conspiracy sentence.
Burton filed this petition on May 28, 2009, but this is not his first federal challenge to his conviction. Burton filed a habeas petition in this court in 1988 (No. 88-0102) to challenge the same conviction he seeks to challenge here. In a Report and Recommendation filed on October 19, 1988, and adopted by the court on November 4, 1988, that petition was dismissed on the merits. Burton filed a second habeaspetition (No. 99-0333) that was dismissed as a second or successive petition on March 5, 1999.
On August 6, 2009, this court dismissed the petition without prejudice for lack of subject matter jurisdiction as a successive filing. Burton filed a Motion for Reconsideration of the denial of leave to proceed in forma pauperis and dismissal of the petition. The court will grant Burton's motion in part, and transfer the case to the United States Court of Appeals for the Third Circuit for a determination whether the petition may be addressed on the merits in this court. See 28 U.S.C. § 2244(b)(3).
Reconsideration serves to correct manifest errors of law or fact. Harsco Corp. v. Zlotnicki, 779 F.2d 906 (3rd Cir. 1985). A court may grant a motion for reconsideration if there is: (1) newly available evidence; (2) an intervening change in controlling law; or (3) a need to correct a clear error of fact or to prevent manifest injustice. Haymond v. Lundy, 205 F. Supp. 2d 390, 395 (E.D. Pa. 2002). "Motions for reconsideration are not to be used to reargue or relitigate matters already decided." Id. Burton asserts that a manifest injustice will result if he is denied the opportunity for federal review of his claims, based on newly discovered evidence, that the Commonwealth of Pennsylvania perpetrated a fraud on the court during his 1970 trial and 1988 habeas proceedings.
Burton argues that he can show the Commonwealth purposefully withheld exculpatory evidence. Because of this alleged fraud on the court, he argues he should not be barred by Section 2244 from filing a successive petition.
28 U.S.C. § 2254 allows a person in custody due to the judgment of a State court to seek a writ of habeas corpus based "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a). With the passage of the AEDPA in 1996, Congress enacted gatekeeping provisions meant to limit the number of successive applications for the writ presented to the district courts. See Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996); see also Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). The AEDPA provides, in relevant part:
(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 ...