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Harris v. Wenerowicz

United States District Court, E.D. Pennsylvania

August 14, 2014

KEITH HARRIS, Petitioner,
M. WENEROWICZ, et al., Respondents.


LAWRENCE F. STENGEL, District Judge.

Keith Harris has filed a "motion for relief from judgment or Order dismissing petition for writ of habeas corpus as time-barred" pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. He argues that the court should reopen the judgment because: (1) extraordinary circumstances occurred which prevented him from filing a reply to the respondent's answer to his petition; and (2) the court "mistakenly forgot" to consider his "motion to amend and/or stay and abeyance [based on] newly discovered evidence of actual innocence." For the following reasons, I will deny the motion in its entirety.


On November 12, 1993, along with two co-defendants, Mr. Harris participated in the murder of Wendy Glover who was shot in the lung and stabbed approximately twenty-one times in vital parts of her body in retaliation for the shooting of a friend of Mr. Harris. On March 3, 1995, a jury found Mr. Harris guilty of first-degree murder, criminal conspiracy, and possessing an instrument of crime. Mr. Harris was sentenced on November 30, 1995 to a mandatory term of life imprisonment on the murder conviction, five to ten years on the criminal conspiracy conviction, and one-half to five years on the conviction for the possession of an instrument of crime, all of which was affirmed by the Superior Court of Pennsylvania. Commonwealth v. Harris, 711 A.2d 1039 (Pa.Super. 1998). The Supreme Court of Pennsylvania denied his request for review on June 4, 1998. Commonwealth v. Harris, 725 A.2d 179 (Pa. 1998).

On June 2, 1999, Mr. Harris filed a pro se petition under the Post-Conviction Relief Act, 42 Pa. Cons. Stat. ยง 9541, et seq. Appointed counsel filed an amended petition which the PCRA court dismissed on June 4, 2001. On appeal, the Superior Court of Pennsylvania affirmed the dismissal. Commonwealth v. Harris, 799 A.2d 169 (Pa.Super. 2002). On August 15, 2002, the Supreme Court of Pennsylvania denied Mr. Harris's request for relief.[2] Commonwealth v. Harris, 806 A.2d 858 (Pa. 2002).

On March 2, 2006, Mr. Harris filed a second pro se PCRA petition. Appointed counsel filed an amended petition. On September 24, 2008, the PCRA court dismissed the second petition as untimely. That dismissal was affirmed by the Superior Court of Pennsylvania, see Commonwealth v. Harris , 4 A.3d 678 (Pa.Super. 2010), and the Supreme Court of Pennsylvania denied discretionary review. Commonwealth v. Harris, 13A.3d 476 (Pa. 2010).

On December 20, 2011, Mr. Harris filed a petition for writ of habeas corpus in this court, raising eighteen claims. See Document #1. The respondents filed an answer to the petition, arguing that it should be dismissed as untimely. See Document #14. Judge Rueter agreed, and recommended that the petition be dismissed. After a de novo review of Mr. Harris's sizeable objections, I approved and adopted Judge Rueter's Report and Recommendation, and dismissed the petition as untimely.


Rule 60(b) of the Federal Rules of Civil Procedure permits a district court to grant relief from a final judgment after a showing of extraordinary circumstances, including fraud, misrepresentation, or misconduct by an opposing party; newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); or "any other reason that justifies relief." FED.R.CIV.P. 60(b)(2), (3) and (6). As such, relief under this rule is possible only in narrow circumstances. See Gonzalez v. Crosby , 545 U.S. 524, 528 (2005). In evaluating a Rule 60(b) motion, the district court must determine whether the AEDPA's limits on successive petitions apply. Id. at 529. A Rule 60(b) motion shall be treated as a successive habeas petition if it is "in substance a habeas corpus application." Id. at 531; see also Pridgen v. Shannon , 380 F.3d 721, 727 (3d Cir. 2004) ("[W]hen the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition.") If the motion is construed as a second or successive habeas petition, the district court does not have jurisdiction to entertain the motion unless the petitioner is authorized by the court of appeals to file a successive petition. See Burton v. Stewart , 549 U.S. 147, 153 (2007).


A review of the arguments advanced in support of Mr. Harris's Rule 60(b) motion reveals that it could be construed as a second habeas petition. Notwithstanding his attempts to disguise them, both of Mr. Harris's arguments could be read to attack collaterally his underlying conviction. Stripped of accusations of this court's failure, one argument is based on the state court's rejection of his second PCRA motion. The other argument alleges that police officers tampered with evidence and perjured themselves at trial and a suppression hearing. Out of an abundance of caution, however, because Mr. Harris accuses this court of failing to file his reply brief and failing to consider a motion, I will address the merits of the Rule 60(b) motion. Pridgen v. Shannon , 380 F.3d 721, 727 (3d Cir. 2004). First, Mr. Harris argues his "reply brief [to the respondents' answer to the petition] that was given to prison officials for mailing, that addressed the asserted procedural defenses of the respondents, that was never filed with the Clerk of Court, and never considered by the District Court during its review of his first federal habeas petition, constitutes extraordinary circumstance' warranting relief under Rule 60(b)(6)." This "circumstance, " Mr. Harris insists, is sufficient to prove that there was some defect in the integrity of the federal habeas proceeding. This claim is meritless.

Initially, I note that a petitioner's reply is not a required element of the habeas corpus process in federal courts. Rule 5(e) of the Rules Governing Section 2254 Cases in the United States District Courts provides that the "petitioner may submit a reply to the respondent's answer or other pleading within a time fixed by the judge." (Emphasis added). Here, no such date was fixed, and a reply from Mr. Harris was not anticipated. Whether Mr. Harris successfully filed a reply, however, does not cast doubt on the integrity of the federal habeas proceeding. This is particularly true because Mr. Harris filed extensive objections to the Report and Recommendation before its approval and adoption. Further, when he composed those objections, he took the opportunity to re-present the issues he had intended to be included in his reply to the respondent's answer. I considered and overruled those objections when I approved and adopted the Report and Recommendation. The issues in question were an attempt to dispute the untimeliness of his habeas petition by arguing that the state court had incorrectly rejected his second PCRA petition. The second PCRA petition, however, has nothing to do with the timeliness of the habeas petition. If his reply had been received and filed, it would have had no impact on the ultimate disposition of his habeas petition here. Mr. Harris had until November 15, 2002 to file a timely habeas petition. By the time he filed his second PCRA petition on March 2, 2006, the AEDPA statute of limitations had already expired which rendered his habeas untimely. Accordingly, Mr. Harris's first argument does not present extraordinary circumstances which warrant Rule 60(b) relief.

Second, Mr. Harris argues that his "motion[3] to amend and/or stay and abeyance [based on] newly discovered evidence of actual innocence" was never considered by the district court. In that document, Mr. Harris informed the court that he had received "newly discovered evidence" pertaining to "prosecution misconduct, " which "would trigger the running of the one-year limitations period as of the moment of the diligent discovery on June 18, 2012." The evidence in question is purported to be a report dated June 12, 2012, and authored by Dianne Peterson, a forensic document examiner. Apparently upon Mr. Harris's request, Ms. Peterson performed a handwriting analysis of the search warrants in this case, and determined that a portion of each warrant was completed by the same individual, yet signed by two different detectives. The challenged portion is the block on the forms set aside for an inventory of the property seized upon execution of the search warrants. Here, the seized property included various pieces of clothing belonging to the three co-defendants which were stained with the victim's blood type and marked with her genetic material as discovered by DNA testing. Mr. Harris insists that this report is significant because both detectives involved allegedly testified under oath to be the author of the entire document, and the uncovering of this handwriting analysis supports his contention that the "police and prosecutors tampered with and fabricated physical and documentary evidence, and committed perjury at petitioner's trial and suppression hearing, that was used as a basis for the conviction." First, Mr. Harris provides no evidence of the testimony of the two detectives. Second, the signatures on the inventory section of the warrants merely certify that the written inventory is a true and correct listing of all items seized. There is no indication that by signing the inventory, the detectives were certifying that they had actually handwritten the clothing items into the inventory themselves. Finally, there is no reason why, with reasonable diligence, this report could not have been prepared in time for trial. Even if I were to believe that this report somehow uncovered perjury on part of the ...

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