United States District Court, W.D. Pennsylvania
MEMORANDUM and ORDER
C. Mitchell United States Magistrate Judge
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. 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.
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
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
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.)
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.
(ECF No. 109.)
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).
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).