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Robert W. Smith v. Warden

January 23, 2013

ROBERT W. SMITH,
PETITIONER
v.
WARDEN, JOHN KERESTES, ET AL., RESPONDENTS



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

MEMORANDUM

Robert W. Smith filed a petition entitled "Motion under Rule 60(b)(6)" requesting this court to vacate his state court conviction of 1994. He claims that he is actually innocent of the convicted violation of the Pennsylvania Corrupt Organization Act, 18 Pa.C.S. 911(b)(2) through (4). For the reasons that follow, I will deny this petition as untimely, or in the alternative, because it fails to set forth any extraordinary or special circumstances that would entitle him to relief.

I. BACKGROUND

On February 7, 1994, after a jury trial in the Court of Common Pleas for Bucks County, Mr. Smith was convicted of various counts of corrupt organizations, criminal conspiracy, credit card fraud, criminal attempt, receiving stolen property, theft by unlawful taking, theft of services, and theft by deception. Commonwealth v. Smith,No. 3552 EDA 1999. These convictions arose from an extensive credit card fraud scheme executed with the aid of several co-conspirators while he was incarcerated. Id. On February 18, 1994, Mr. Smith was sentenced to not less than seven nor more than twenty years in prison with ten years' probation to run consecutively. He was also ordered to pay restitution of $31,392.74.

Mr. Smith filed a direct appeal to the Pennsylvania Superior Court which affirmed his sentence on September 18, 1995. Commonwealth v. Smith, 669 A.2d 413 (Pa.Super. 1995) (table). His petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on April 24, 1996. Commonwealth v. Smith, 675 A.2d 1247 (Pa. 1996). Accordingly, his judgment of sentence became final on July 23, 1996. See 42 Pa.C.S. § 9545(b)(3).

Mr. Smith then filed a habeas corpus petition in this court which was denied on April 23, 1997. On January 14, 1998, the Court of Appeals for the Third Circuit denied his application for a certificate of appealability. On March 30, 1998, the United States Supreme Court denied his petition for writ of certiorari. Since then, Mr. Smith has filed approximately ten petitions under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. 9541, et seq. All of these PCRA petitions were either withdrawn by Mr. Smith, or denied by the state court.

On July 7, 2011, Mr. Smith filed in the Court of Appeals for the Third Circuit an application pursuant to 28 U.S.C. § 2244 requesting permission to file a second or successive habeas corpus petition, based on his claim of actual innocence and the holding in Commonwealth v. Besch, 674 A.2d 655 (Pa. 1994). By Order dated August 25, 2011, the Court of Appeals denied Mr. Smith's request, finding that his claim challenging his 1994 conviction was not based on a new rule of constitutional law or on facts that could not have been discovered through due diligence. Moreover, the court found that the underlying claim raised was available to him when he filed his original habeas corpus petition in 1996.

In another attempt to challenge his conviction, Mr. Smith has filed this motion pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, setting forth a similar claim as in his July 2011 application to the Court of Appeals.

II. STANDARD OF REVIEW

Rule 60(b) of the Federal Rules of Civil Procedure provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

See also Gonzalez v. Crosby, 545 U.S. 524 (2005) (Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence). Legal error, however, does not by itself warrant the rule's application. Pridgen v. Shannon, 380 F.3d 721 (3d Cir. 2004). Since legal error can usually be corrected on appeal, that factor, without more, does not justify the granting of relief. Id. Only extraordinary and special circumstances justify relief under Rule 60(b), and such "extraordinary circumstances" rarely occur in a habeas context. Id.

However, when a Rule 60(b) motion seeks to collaterally attack a petitioner's underlying conviction or to revisit the federal court's denial on the merits of the claim, the motion should be treated as a ...


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