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Rainey v. District Attorney's Office of Philadelphia

December 10, 2009


The opinion of the court was delivered by: Yohn, J.


Kyle Rainey moves, pursuant to Federal Rule of Civil Procedure 60(b) and Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), to set aside the December 13, 2000 dismissal of his motion for habeas relief pursuant to 28 U.S.C. § 2254. Rainey asserts that he is entitled to relief from that dismissal because the underlying judgment is "void" and tainted by fraudulent conduct by state officials. In addition to a reopening of his federal habeas proceedings, Rainey seeks discovery, an evidentiary hearing, appointment of counsel, and appointment of an expert on the issue of eyewitness identification. (Pet'r's Additional Am. Pet.-Mot. 3, Oct. 21, 2009.) For the reasons set forth below, I conclude that Rainey has failed to allege any fraud or misconduct that would justify setting aside the judgment in the original § 2254 proceedings. I will therefore deny Rainey's motion to set aside that judgment. To the extent that Rainey's motion seeks to re-argue the merits of his original habeas motion or sets forth new grounds for habeas relief, I will dismiss the motion as an unauthorized successive petition under 28 U.S.C. § 2244(b).

I. Factual and Procedural History*fn1

On March 26, 1994, three men robbed Bright Jewelers, a Korean-owned store in Philadelphia. During the ensuing police investigation, Sam Lee, the owner of the store who had been present at the time of the robbery, identified Rainey from a photograph array as the "lookout" man. According to Rainey, police investigators later conducted a "line-up" identification, at which Lee chose a "fill-in" instead of Rainey as the lookout man. ("Petition-Motion Under Fed.Rules.Civil Procedures Rule 60(b)(3)(4)(6) and/or Hazel-Atlas Motion Seeking Relief [sic]" ("Pet'r's Mot.") 5, June 4, 2009.) Rainey's trial counsel filed a pre-trial motion seeking to suppress Lee's identification, arguing that the photo array was unduly suggestive.*fn2 The trial court denied the suppression motion. Rainey was ultimately convicted of involvement in the robbery.*fn3

Rainey directly appealed his conviction. On appeal, Rainey claimed, inter alia, that the trial court erred in failing to suppress the photo array and Lee's identification testimony at trial. The Superior Court concluded that Rainey had waived this claim of error by failing to include the photo array in the record on appeal. Rainey then sought state post-conviction relief pursuant to the Post-Conviction Relief Act (PCRA), alleging that his counsel on direct appeal was ineffective in failing to appeal from the Superior Court's dismissal of his appeal. See Rainey, No. 1871 Phila. 1998, slip op. at 4. The PCRA court denied relief and the Superior Court affirmed on August 5, 1999. Id. at 1.

On April 21, 2000, Rainey filed a petition pursuant to 28 U.S.C. § 2254 for relief from his conviction and sentence. Rainey, No. 00-2086. Rainey argued that the state trial court denied him due process of law by failing to suppress Lee's identification in contravention of Neil v. Biggers, 409 U.S. 188, 196-97 (1972) (holding that an identification procedure may be so likely to lead to a mistaken identification that its use violates the due process guarantee in the Fourteenth Amendment). After referring the matter to the late magistrate judge Peter B. Scuderi, I adopted Judge Scuderi's conclusion that Rainey's identification claim was procedurally defaulted because Rainey had failed to preserve that claim on direct appeal.*fn4 I further adopted Judge Scuderi's conclusion that, even if Rainey's claim were not procedurally defaulted, it lacked merit. The state trial court had considered Rainey's objection to the photo array and determined that the array was not unduly suggestive, and Rainey had not presented adequate evidence that this determination on the part of the state court was unreasonable. Rainey's other constitutional claims also lacked merit, and I therefore denied and dismissed Rainey's habeas petition. Rainey, No. 00-2086 (Dec. 13, 2000). The Third Circuit denied Rainey's request for a certificate of appealability. Rainey v. Varner, No. 00-4426 (3d Cir. Sept. 13, 2001).

Rainey then filed a second PCRA petition on October 23, 2002. In this petition, Rainey argued, inter alia, that counsel on direct appeal had been ineffective in failing to preserve his identification claim on direct appeal. Rainey also argued that he was "denied due process of law when the Commonwealth failed to provide him with a photographic array," presumably the same array to which he refers in his current motion. See Commonwealth v. Rainey, No. 338 EDA 2004, slip op. at 1 (Pa. Super. Ct. Dec. 30, 2004). The PCRA court dismissed this petition and the Superior Court affirmed the dismissal on December 30 2004, finding that the petition was untimely. Id. at 1-2.

In 2005, Rainey filed two Rule 60(b) motions for relief from the denial of his first habeas petition. The first of these, filed on January 14, 2005, and assigned to the Honorable Timothy J. Savage, purported to present "new evidence" of innocence, challenged the state court's dismissal of his second PCRA petition, and challenged the sentencing process under Blakely v. Washington, 542 U.S. 296, 313-14 (2004) (holding that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," including any factual grounds for imposition of sentence beyond statutory maximum). It also alleged that state officials had interfered with the Superior Court's review of the identification issue on direct appeal and that Rainey's trial counsel had been ineffective in failing to preserve that issue on appeal. Judge Savage found that the motion was actually a successive petition for habeas relief and transferred the matter to the Third Circuit for authorization, which the Third Circuit denied. Rainey v. Wydner, No. 05-182 (E.D. Pa. Apr. 19, 2005); In re Rainey, No. 05-2271 (3d Cir. June 2, 2005).

On August 11, 2005, Rainey filed his second Rule 60(b) motion, again raising the identification issue. I dismissed Rainey's motion on October 12, 2006, finding that the motion was essentially an attempt to relitigate the identification claim he had raised in his first habeas petition. Rainey v. Wydner, No. 05-4272, 2006 U.S. Dist. LEXIS 74314, at *8-9 (E.D. Pa. Oct. 12, 2006); see 28 U.S.C. § 2244(b)(1) ("A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.").*fn5

On October 25, 2006, Rainey filed yet another Rule 60(b) motion in this court, which Rainey characterized as a "re-filing" of the motion that I had dismissed earlier that month. Motion, Rainey v. Wynder, No. 06-4789, 2007 U.S. Dist. LEXIS 55212 (E.D. Pa. July 30, 2007). Rainey argued that the previous Rule 60(b) motion had been improperly dismissed. On January 19, 2007, Rainey submitted an "amended petition" seeking relief directly from Article III of the United States Constitution. I denied and dismissed the amended motion on July 30, 2007.*fn6 Rainey sought a certificate of appealability from the Third Circuit, which the Third Circuit denied. Rainey v. Wynder, No. 07-3448 (3d Cir. Nov. 7, 2007). On November 7, 2008, Rainey submitted a third application for leave to file a successive habeas petition, which Third Circuit also denied. In re Rainey, No. 08-4408 (3d Cir. Feb. 20, 2009).

On June 2, 2009, Rainey filed yet another motion in this court seeking relief under Rule 60(b) and under Hazel-Atlas. He later submitted numerous amendments to that motion and a reply to the Philadelphia District Attorney's response. Because neither the initial motion nor the subsequent amendments state a valid claim for relief, I will deny this motion.

II. Legal Standards

A. Rule 60(b)

Rule 60(b) enables a party to move for relief from a judgment based on ...

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