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Richard v. Warden SCI Graterford

United States District Court, W.D. Pennsylvania

January 20, 2017

THOMAS PAUL RICHARD, SR., Petitioner,
v.
WARDEN SCI GRATERFORD, et al., Respondents.

          MEMORANDUM and ORDER

          Robert C. Mitchell United States Magistrate Judge

         Thomas Paul Richard, Sr., filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania which was transferred to this Court on January 5, 2007.[1] He is serving a 25½ to 51 year sentence imposed following his conviction by a jury of rape, involuntary deviate sexual intercourse, aggravated indecent assault, simple assault, endangering the welfare of children and corruption of the morals of a minor at No. 3607 of 1999 in the Court of Common Pleas of Westmoreland County, Pennsylvania. This sentence was imposed on October 25, 2000.

         On January 8, 2008, a Memorandum and Order was filed, dismissing the petition on the merits and denying a certificate of appealability (ECF No. 83). Petitioner filed a notice of appeal, and on March 19, 2008, the Court of Appeals for the Third Circuit denied him a certificate of appealability (ECF No. 91).

         On April 18, 2013, he filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure (ECF No. 95). On April 22, 2013, that motion was dismissed. He filed a notice of appeal, and on April 15, 2014, the Court of Appeals entered an order stating that:

The application for a certificate of appealability is denied. Jurists of reason would not debate the correctness of the District Court's ruling on Richard's motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(c)(4). See 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 474, 484 (2000); Morris v. Horn, 187 F.3d 333, 339 (3d Cir. 1999). The District Court properly denied the motion. Richard did not present a basis for relief from the District Court's procedural ruling, and his claims that the judgment in his case is void (including those claims that challenge the Magistrate Judge's jurisdiction) are without merit. See Gomez v. United States, 490 U.S. 858, 869 & n.14 (1989). Also, to the extent Richard presented a new claim or claims for habeas relief, his motion was an unauthorized second or successive federal habeas petition that the District Court could not consider. See Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005).

(ECF No. 103.)

         On March 13, 2015, Richard filed a second Rule 60(b) motion (ECF No. 104) which was denied on March 16, 2015. He filed a notice of appeal and on November 3, 2015, the Court of Appeals entered an order stating that:

The request for a certificate of appealability is denied because jurists of reason would not debate whether the District Court correctly denied Appellant's motion pursuant to Rule 60 of the Federal Rules of Civil Procedure. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). As the District Court concluded, Appellant's motion did not meet the requirements for relief under Rule 60(a) or Rule 60(b). Rule 60(a) relief was not appropriate because Appellant sought substantive relief beyond correction of a clerical mistake or oversight. Cf. Dudley v. Penn-Am. Ins. Co., 313 F.3d 662, 665 (2d Cir. 2002). Among other reasons, Appellant failed to meet the requirements for Rule 60(b) relief because the motion was not filed within a reasonable time of the United States Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). See Fed. R. Civ. P. 60(c)(1); see also Cox v. Horn, 757 F.3d 113, 115-16 (3d Cir. 2014), cert. denied, 135 S.Ct. 1548 (2015); Moolenaar v. Gov't of the V.I., 822 F.2d 1342, 1348 (3d Cir. 1987).

(ECF No. 109.)

         On December 22, 2015, he filed his third Rule 60(b) motion. The latter was dismissed on February 25, 2016, and on appeal, the Court of Appeals wrote:

The foregoing request for a certificate of appealability is denied because jurists of reason would all agree that the District Court did not err in dismissing Richard's Rule 60(b) motion. Slack v. McDaniel, 529 U.S. 475 (2000). The motion presents a direct challenge to the validity of his sentence, a substantive claim rather than a challenge to a procedural ruling in the disposition of his §2254 petition. This is not a "true" 60(b) motion but a successive §2254 petition, which the District Court lacked jurisdiction to consider because Richard had not obtained our authorization to file it. See Gonzalez v. Crosby, 545 U.S. 524 (2005); Burton v. Stewart, 549 U.S. 147 (2007); 28 U.S.C. §2244(b)(3). We decline to construe Richard's request as a §2244 application because state court decisions are not a basis for authorizing the filing of successive §2254 petitions, §2244(b)(2), and because Alleyne does not apply retroactively to cases on collateral review, United States v. Winkelman, 746 F.3d 134 (3d Cir. 2014).[2]

         Undeterred, Richard has now submitted a fourth Rule 60(b) motion the basis of which he contends is the ruling in Dennis v. Secretary, Pennsylvania Department of Corrections, 834 F.3d 263 (3d Cir. 2016)(en banc). Specifically, he writes:

Should the new Circuit Court ruling of Dennis v. Sect'y of Dept. of Corr. No. 13-9003 allow this Court to re-open its Judgment where two (2) SUBSTANTIVE ERRORS, had occurred in this Court's review, [and] which has caused an INNOCENT PERSON to stand incarcerated; where such holding "directly effects" this Court's Opinion/Judgment with respect to the erroneous standard of review applied, in conjunction to a single claim not ruled on the merits where an impermissible due diligence requirement was erroneously imposed? (ECF No.125 p.1).

         In Dennis, ...


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