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Allen O'neil Fitzgerald, A/K/A Allen O'neil Baltimore v. Superintendent Michael Klopotoski

November 8, 2012

ALLEN O'NEIL FITZGERALD, A/K/A ALLEN O'NEIL BALTIMORE, PETITIONER,
v.
SUPERINTENDENT MICHAEL KLOPOTOSKI, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

ECF No. 40

MEMORANDUM OPINION AND ORDER

This case is before the Court on Petitioner's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b) filed on November 6, 2012. (ECF No. 40.) For the reasons explained herein, Petitioner's motion will be denied.

I.BACKGROUND

On October 10, 2002, Petitioner was found guilty of robbery, receiving stolen property and conspiracy, and he was later sentenced to an aggregate term of incarceration from twenty-five (25) to fifty (50) years for his convictions. The Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence on June 21, 2005, and the Supreme Court of Pennsylvania denied his petition for allowance of appeal on June 6. 2006. Petitioner's petition for certiorari with the United States Supreme Court was denied on January 8, 2007.

On March 29, 2007, Petitioner filed a petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), which was later dismissed by the trial court on February 21, 2008. The Superior Court of Pennsylvania affirmed on December 30, 2008, and the Supreme Court of Pennsylvania denied his petition for allowance of appeal on August 20, 2009.

Petitioner filed a petition for writ of habeas corpus in this Court on October 14, 2009, and later filed an amended petition on March 5, 2010. This Court entered an order on September 9, 2010, denying Petitioner's habeas petition and denying a certificate of appealability. Petitioner appealed, and the Third Circuit Court of Appeals denied his request for a certificate of appealability on January 4, 2011.

Now pending before the Court is a Rule 60(b) motion. In the motion, Petitioner appears to assert that the state court improperly denied his 2012 successive PCRA or state habeas petition on the basis that his claims were procedurally defaulted. Apparently he appealed the state court's ruling but voluntarily withdrew his appeal in order to file the instant Rule 60(b) motion in this Court. Although unclear, he seems to argue that the United States Supreme Court's recent decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), provides a proper ground for this Court to reopen his federal habeas proceeding and consider his claims, which the state court found to be procedurally defaulted.

II.DISCUSSION

Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds, including the catch-all category "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6). A motion under subsection (b)(6) must be brought "within a reasonable time," Fed. R. Civ. P. 60(c)(1), and requires a showing of "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).

A.Second or Successive Petition

For habeas petitioners, Rule 60(b) may not be used to avoid the prohibition set forth in 28 U.S.C. § 2244(b) against second or successive petitions. In Gonzalez, the Court explained that a Rule 60(b) motion constitutes a second or successive habeas petition when it advances a new ground for relief or "attacks the federal court's previous resolution of a claim on the merits." Id. at 532. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at n.4. The Court further explained that a Rule 60(b) motion does not constitute a second or successive petition when the petitioner "merely asserts that a previous ruling which precluded a merits determination was in error -- for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar." Id. When "no 'claim' is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application." Id. at 533.

Upon review, it appears that Petitioner is seeking permission to bring new claims before this Court -- specifically, the claims that were rejected by the state court in either his state habeas or successive PCRA petition. To the extent Petitioner seeks to do so his motion will be denied as an unauthorized second or successive petition for habeas relief. Petitioner must first file an application to the Third Circuit Court of Appeals and be granted permission to file a second or successive petition pursuant to 28 U.S.C. ยง 2244(b). ...


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