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Rethage v. Attorney General of State of PA

United States District Court, Western District of Pennsylvania

March 10, 2014

KEITH RETHAGE, Petitioner,
v.
ATTORNEY GENERAL OF THE STATE OF PA and J. BARRY JOHNSON, Respondents. ECF 41

TERRENCE F. MCVERRY DISTRICT JUDGE

REPORT AND RECOMMENDATION

LISA PUPO LENIHAN CHIEF UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

For the reasons stated herein, Petitioner’s Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b) (ECF No. 41) should be denied.

II. REPORT

A. Background

Keith Rethage (“Petitioner”) is a prisoner currently incarcerated at SCI-Pittsburgh. He petitioned this Court for habeas corpus relief on March 4, 2005, raising claims of ineffective assistance of counsel with regard to his convictions for Murder in the Third Degree, Aggravated Assault and Recklessly Endangering Another Person. In a Report and Recommendation dated May 18, 2007, it was recommended that his petition be denied. On June 4, 2007, District Judge Gary Lancaster denied the petition and adopted the Report and Recommendation as the opinion of the Court. An appeal was filed but the Third Circuit Court of Appeals denied Petitioner’s application for a certificate of appealability on August 23, 2007.

Petitioner filed a pro se Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b) on June 23, 2009. In that motion, Petitioner alleged that he discovered that the attorney who was appointed to represent him in these habeas proceedings, Mr. Adam Cogan, also represented the Commonwealth’s “jailhouse informant” during pretrial stages.[1]Because of that, he argued that Attorney Cogan was not ethically able to represent him in this case. After reviewing Attorney Cogan’s response to Petitioner’s motion, the Court concluded that his representation of Petitioner in this matter was not in any way a conflict of interest. Thus, his motion was denied on October 16, 2009. Petitioner appealed, but the Third Circuit denied his application for a certificate of appealability.

Almost three years later, Petitioner filed a Motion for Appointment of Counsel. He claimed that he had newly discovered evidence that warranted federal habeas review in a second or successive habeas action. He also claimed that Attorney Daniel Silverman had agreed to represent him in the action and would accept representation if appointed by the Court. However, because he had not yet received authorization from the Third Circuit to file a second or successive habeas petition, his motion was denied without prejudice to refile if he obtained permission from the Circuit.

On October 26, 2012, Petitioner filed a Motion for Leave to File a Rule 60 Motion claiming that a prisoner could use a Rule 60 motion to bring new facts before a district court and excuse the need for filing an application for leave to file a second or successive habeas petition. Petitioner cited to Parham v. Klem, 496 F. App’x 181 (3d Cir. 2012) in support of his position, but after explaining why Parham did not stand for the proposition for which it was being cited, and why it was dissimilar to Petitioner’s case, the Court denied the motion on October 29, 2012.

Currently pending before the Court is a second Motion for Relief from Judgment filed pursuant to Rule 60(b) on January 9, 2014. Petitioner seeks relief based on the United States Supreme Court’s recent ruling in McQuiggen v. Perkins, 133 S.Ct. 1924 (2013), which held that actual innocence, if proven, can serve as a gateway through which a habeas petitioner may pass whether the impediment is a procedural bar or expiration of the statute of limitations. Petitioner claims that he has two notarized affidavits from eyewitnesses that corroborate his original defense of actual innocence.[2] He argues that this Court is not barred from considering his actual innocence claim and that we cannot treat his motion as a successive habeas petition, which requires Circuit approval.

B. Relevant Facts of the Crime

The relevant facts, as set forth by the Superior Court of Pennsylvania on direct appeal from Petitioner’s judgment of sentence are as follows:

Appellant, Kalief M. Rethage, appeals from the November 22, 2000 judgment of sentence entered in the Court of Common Pleas of Westmoreland County. Appellant received a term of 17½ to 35 years imprisonment upon his convictions, at a jury trial, for third degree murder, ...

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