The opinion of the court was delivered by: Norma L. Shapiro, J.
Petitioner Luis Enrique Alamo ("Alamo") filed a motion for equitable relief under Federal Rule of Civil Procedure 60(b), 28 U.S.C. § 2243, and Article III of the United States Constitution. Alamo seeks to vacate the January 15, 1999 Memorandum and Order dismissing his petition for federal habeas corpus relief and denying his application for a certificate of appealability ("COA"). The issues are whether the court has jurisdiction to consider his claims and whether the court erred in finding no probable cause to issue a COA. For the reasons set forth below, the equitable relief motion will be denied.
A state court jury convicted Alamo for first degree murder, criminal conspiracy, corrupt organizations, and possession of an instrument of crime. He was sentenced to life imprisonment on the murder conviction. The Pennsylvania Superior Court affirmed the conviction on direct appeal. Commonwealth v. Alamo, 596 A.2d 248 (Pa. Super. Ct. 1991). The Pennsylvania Supreme Court denied Alamo's request for allocatur. Commonwealth v. Alamo, 600 A.2d 532 (Pa. 1991). He did not petition the United States Supreme Court for a writ of certiorari.
Alamo sought relief pursuant to the Post-Conviction Relief Act, 42 Pa. C.S. §§ 9541, et seq.; his petition was denied. Appealing the denial, he alleged ineffective assistance of counsel for failure to: 1) object to the accomplice liability charge for the murder and possession of an instrument of crime charges; 2) challenge Alamo's waiver of the right to testify; 3) challenge the weight and sufficiency of the evidence; 4) object to a co-conspirator's remarks; and 5) object to the admission of evidence of drug transactions. The Superior Court rejected these grounds. Alamo sought review in the Pennsylvania Supreme Court of: 1) the accomplice liability charge regarding the murder conviction; 2) the weight and sufficiency of the evidence; and 3) the co-conspirator remarks. His petition for allocatur was denied. Alamo v. Frank, 1999 WL 79659, at *1 (E.D. Pa. Jan. 15, 1999).
On April 28, 1997, Alamo filed a pro se petition for writ of habeas corpus in federal court under 28 U.S.C. § 2254. He challenged the weight and sufficiency of the evidence and asserted ineffective assistance of counsel for failure to object to the jury charge on accomplice liability for murder.*fn1 The court referred his petition to Magistrate Judge Thomas J. Rueter for a Report and Recommendation ("R&R"). Judge Rueter recommended the petition be dismissed because the evidence was sufficient to convict Alamo of first degree murder and counsel was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Alamo filed objections to the R&R.
On January 15, 1999, the court approved and adopted the R&R after considering Alamo's objections de novo. The court agreed with Judge Rueter that the evidence was sufficient to uphold the murder conviction and that counsel was not ineffective.*fn2 Alamo's petition for federal habeas corpus relief was denied and dismissed without an evidentiary hearing. The court also found there was no probable cause to issue a COA on either of Alamo's claims. Alamo, 1999 WL 79659, at *3. The Third Circuit Court of Appeals denied Alamo's request for an appeal.
Alamo now seeks equitable relief under Federal Rule of Civil Procedure 60(b), 28 U.S.C. § 2243, and Article III of the United States Constitution.
A. Federal Rule of Civil Procedure 60(b)
Alamo asserts that the court should have issued a COA for his claim that counsel was ineffective for failing to object to the accomplice liability charge for murder. Alamo claims the court should now grant him a COA under Rule 60(b) in light of several recent decisions of the Court of Appeals.
Rule 60(b) allows a party to seek relief from a final judgment and reopen his or her action. There are six bases for relief. Alamo does not specify which supports his motion, but two could plausibly apply:
(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). To determine whether Alamo is entitled to relief, the court must determine whether his motion is properly characterized as a Rule 60(b) motion or a habeas petition subject to the restrictions of the ...