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Larry Hickman v. Kenneth Cameron

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


October 31, 2011

LARRY HICKMAN PETITIONER,
v.
KENNETH CAMERON RESPONDENT.

The opinion of the court was delivered by: Judge Schwab

MEMORANDUM ORDER

Larry Hickman ("Petitioner") is a state prisoner who currently is incarcerated at the State Correctional Institution at Cresson, Pennsylvania ("SCI-Cresson"). Before this Court is Petitioner's petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, in which Petitioner attacks his 1988 criminal convictions in the Court of Common Pleas of Allegheny County, Pennsylvania. Pet. for Writ of Habeas Corpus (Doc. 1 at 1). A search of this Court's filing system reveals that this is at least Petitioner's seventh such petition filed with this Court. See, e.g., Hickman v. Coleman, No. 10-148, 2010 WL 2634104 (W.D. Pa. Apr. 22, 2010) (recounting a partial history of Petitioner's filings attacking his state convictions in federal court).*fn1

This matter was referred to a United States Magistrate Judge for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D of the Local Rules for Magistrate Judges. The magistrate judge issued a report and recommendation on October 17, 2011, recommending that this case be dismissed as a second or successive petition, for which Petitioner had not received the permission from the court of appeals to proceed. (Doc. 5 at 3). To the extent that Petitioner characterized his petition as a motion under Rule 60(b) of the Federal Rules of Civil procedure for relief from his 1988 state court convictions, see (Doc. 1 at 1), it was recommended that the motion be denied. (Doc. 5 at 3). Finally, the magistrate judge recommended that a certificate of appealability be denied. Id.

On October 25, 2011, Petitioner responded with objections, and for the first time characterized his petition as a motion pursuant to Rule 60(b)(4) attacking the denial of habeas relief by this Court in 1996. See (Doc. 7 at 2); see also Hickman v. Brennan, No. 96-562, (W.D. Pa. Nov. 14, 1996) (Doc. 12). The docket in that case indicates that the court of appeals denied Petitioner a certificate of appealability in 1997. Brennan, No. 96-562 (Doc. 14). To the extent that any new claim for relief which is raised for the first time in objections is properly before this Court, Petitioner's new, if not novel, collateral attack of his prior habeas proceeding pursuant to Rule 60(b) -- almost 15 years after the entry of judgment against him -- will be denied as grossly untimely. See Burgos v. Superior Court of PA, 355 F. App'x 585, 586-87 (holding that a motion brought pursuant to Rule 60(b)(4) attacking the seven-year-old judgment of a district court denying habeas relief was not brought within a reasonable period of time).

After de novo review of the pleadings and documents in the case, together with the report and recommendation (Doc. 5), and Petitioner's objections thereto (Doc. 7), the following ORDER is entered:

AND NOW, this 31st day of October, 2011,

IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus (Doc. 1) is DISMISSED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that the magistrate judge's report and recommendation (Doc. 5) is adopted as the opinion of this Court.

IT IS FURTHER ORDERED that Petitioner's motion for bail (Doc. 6) is DENIED as MOOT.

BY THE COURT: ARTHUR J. SCHWAB UNITED STATES DISTRICT JUDGE

cc: LARRY HICKMAN AJ2188 PO Box A Cresson, PA 16699


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