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Keith Brewington v. Michael D. Klopotoski

August 29, 2012

KEITH BREWINGTON
v.
MICHAEL D. KLOPOTOSKI,
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, AND
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



The opinion of the court was delivered by: Norma L. Shapiro, J.

MEMORANDUM

Petitioner Keith Brewington ("Brewington"), an inmate at the Dallas State Correctional Institution in Dallas, Pennsylvania, has filed a pro se motion for reconsideration of the March 29, 2012 Memorandum and Order dismissing his third habeas corpus petition and his Federal Rule of Civil Procedure 60(b) motion. The motion for reconsideration will be denied because Brewington has failed to show an intervening change in the controlling law, the availability of new evidence, or that the court made a clear error of law.

I. BACKGROUND

A state court jury convicted Brewington of first degree murder and conspiracy to commit first degree murder. The Superior Court of Pennsylvania affirmed the conviction on direct appeal, Commonwealth v. Brewington, 740 A.2d 247, 258 (Pa. Super. Ct. 1999), and the Supreme Court of Pennsylvania denied his request for discretionary review. Commonwealth v. Brewington, 758 A.2d 660 (Pa. 2000).

Brewington filed a timely pro se petitionfor collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541, et seq. While the PCRA petition was pending, Brewington filed a pro sefederal petition for writ of habeas corpus. Pet., Brewington v. Varner, No. 01-1172 (E.D. Pa. Feb. 20, 2001). This court, adopting the Report and Recommendations ("R&R") issued by Magistrate Judge Charles B. Smith, dismissed the habeas petition without prejudice for failure to exhaust state court remedies because of the pending PCRA petition. Order, Brewington v. Varner, No. 01-1172 (E.D. Pa. April 16, 2002).

The PCRA court appointed counsel for Brewington; counsel filed an amended PCRA petition. The PCRA court dismissed the amended petition on the merits; the Superior Court of Pennsylvania affirmed the dismissal on April 13, 2004. Commonwealth v. Brewington, 852 A.2d 1244 (Pa. Super. Ct. 2004). Brewington had until May 13, 2004 to seek review with the Supreme Court of Pennsylvania, but did not do so. On May 13, 2004, the one-year statute of limitations for Brewington to file a federal petition for writ of habeas corpus accrued. See 28 U.S.C. § 2244(d)(1).

On May 11, 2004, Brewington filed a second pro se PCRA petition. The PCRA court dismissed the second PCRA petition as untimely, Order, Commonwealth v. Brewington, No. 1989-0302 (Ct. Com. Pl. Phila. April 15, 2005), and the Superior Court of Pennsylvania affirmed. Commonwealth v. Brewington, No. 955 EDA 2005 (Pa. Super. Ct. June 23, 2006). The second PCRA petition did not toll the statute of limitations for federal habeas relief because the petition was untimely. See 28 U.S.C. § 2244(d)(2). The limitations period for federal habeas relief expired on May 13, 2005.

Brewington filed a second pro se federal petition for writ of habeas corpus on July 15, 2009--over four years after the limitations period had expired. This court, adopting the R&R issued by Chief Magistrate Judge Thomas J. Rueter, dismissed the petition as untimely. Brewington v. Klopotoski et al., 2010 WL 2697477, at *6 (E.D. Pa. July 6, 2010). The Court of Appeals denied Brewington's application for a certificate of appealability. Order, Brewington v. Klopotoski, et al., No. 10-3209 (3d Cir. Oct. 21, 2010).

Brewington, filing a motion for equitable relief under Federal Rule of Civil Procedure 60(b)(3) & (6), asked the court to vacate its dismissal of his second habeas petition and reopen his proceedings. By Memorandum and Order of March 29, 2012, the court deemed the Rule 60(b)(3) motion, alleging fraud on the court, a third habeas corpus petition, and dismissed it as untimely and successive. Brewington v. Klopotoski, 2012 WL 1071145, at *3 (E.D. Pa. Mar. 29, 2012). The court denied the Rule 60(b)(6) motion contending the court erred when it dismissed the second habeas petition as untimely, because movant failed to show extraordinary circumstances that warranted reopening his proceedings. Id. at *5-6. Brewington now moves for reconsideration; defendants have not opposed the motion.

II. DISCUSSION

Brewington titled his pro se motion a "Traverse/Response/Objections" to the court's March 29, 2012 Memorandum and Order. "[T]he function of the motion, and not the caption, dictates which Rule is applicable." United States v. Fiorelli, 337 F.3d 282, 287-88 (3d Cir. 2003). Federal Rule of Civil Procedure 59(e) provides a movant with the ability to request that the court alter or amend a judgment. Brewington requests that the court reconsider its March 29, 2012 Memorandum and Order and grant him: (1) relief from judgment; (2) an evidentiary hearing; and (3) leave to file an action alleging fraud on the court. Accordingly, the court construes the pro se motion as a motion for reconsideration under Rule 59(e).

A court may alter or amend a judgment if a party shows: (1) an intervening change in the controlling law; (2) the availability of new evidence; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). A motion for reconsideration is subject to the sound discretion of the court. Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 272 (3d Cir. 2001). Motions for reconsideration are rarely granted because "courts have a strong interest in the finality of judgments." Cont'l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995).

In his motion for reconsideration, Brewington contends: (1) the court erred when it dismissed his Rule 60(b)(3) motion alleging fraud on the court, as an untimely, successive habeas petition; (2) he is actually innocent; and (3) he received ineffective ...


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