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Perrego v. Gilmore

United States District Court, M.D. Pennsylvania

March 8, 2017

WILLIAM RICHARD PERREGO, Petitioner
v.
ROBERT GILMORE and ATTORNEY GENERAL JOSH SHAPIRO, Defendants

          MEMORANDUM

          JAMES M. MUNLEY United States District Court

         Before the court for disposition is Petitioner William Richard Perrego's (hereinafter “petitioner”) motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). (Doc. 38). After a careful review, the court will deny petitioner's motion.

         Background[1]

         On March 14, 2007, petitioner beat Lewis Jones to death following a dispute over a bottle of whiskey. Charged with criminal homicide, petitioner proceeded to a bench trial in the Luzerne County Court of Common Pleas. On March 5, 2008, the trial court found petitioner guilty of third degree murder.

         At the time of his conviction, petitioner had a prior voluntary manslaughter conviction. Accordingly, the trial court sentenced petitioner to a term of life imprisonment for this, his second killing.

         Upon direct appeal, the Superior Court of Pennsylvania affirmed petitioner's conviction and sentence on November 19, 2009. Petitioner filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which the Pennsylvania Supreme Court denied on May 28, 2010. Petitioner next filed a timely petition for certiorari in the United States Supreme Court. The Court denied the petition on October 12, 2010.

         Subsequently, petitioner filed a pro se motion, pursuant to the Pennsylvania Post Conviction Relief Act (hereinafter “PCRA”), in the Luzerne County Court of Common Pleas. The Common Pleas Court denied the petition on January 18, 2013. Petitioner appealed to the Pennsylvania Superior Court. The Superior Court affirmed the Common Pleas Court's decision on January 20, 2014. Petitioner next filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which the court denied on July 23, 2014.

         On September 16, 2014, petitioner filed in this court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (hereinafter “section 2254 ”). (Doc. 1). The Clerk of Court assigned the case to Magistrate Judge Martin C. Carlson for the issuance of a report and recommendation (hereinafter “R&R”). Subsequent to the completion of briefing, Magistrate Judge Carlson issued an R&R, which proposed dismissing the section 2254 petition without prejudice. (Doc. 19). The court adopted the R&R on June 26, 2015, and dismissed the petition without prejudice. (Doc. 23). Petitioner appealed this decision to the Third Circuit Court of Appeals, which the Third Circuit denied on February 1, 2016. (Doc. 27).

         Petitioner next filed a section 2254 petition and a supporting memorandum of law on February 24, 2016. (Doc. 29, 30). On March 1, 2016, the court dismissed this petition with prejudice and declined to issue a certificate of appealability. (Doc. 33). Petitioner appealed the court's dismissal of his section 2254 petition to the Third Circuit Court of Appeals, which the Third Circuit denied on June 22, 2016.

         On February 23, 2017, petitioner filed a motion and supporting brief under Federal Rule of Civil Procedure 60(b)(6) (hereinafter “Rule 60(b)(6)”), contending the court must reopen his case and address the merits of his section 2254 petition.

         Discussion

         In the instant motion, petitioner seeks relief under Rule 60(b)(6), which is “intended to be a means for accomplishing justice in extraordinary situations.” Ackermann v. United States, 340 U.S. 193, 199 (1950); Kock v. Gov't of the V. I., 811 F.2d 240, 246 (3d Cir.1987). It is well-settled that relief under Rule 60(b)(6) is “extraordinary and may be granted only upon a showing of exceptional circumstances.” In re Fine Paper Antitrust Litig., 840 F.2d 188, 194 (3d Cir. 1988); U.S. Steel Corp. v. Fraternal Ass'n of Steel Haulers, 601 F.2d 1269, 1274 (3d Cir.1979).

         In evaluating a Rule 60(b) motion, the district court must determine whether the Antiterrorism and Effective Death Penalty Act's limits on successive petitions apply. Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). 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. 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. Burton v. Stewart, 549 U.S. 147, 153 (2007). In Gonzalez, the Supreme Court provided several examples of Rule 60(b) motions that were actually habeas claims, including a motion seeking leave to present newly discovered evidence, a motion attacking the effectiveness of trial counsel, and a motion seeking relief for “any other reason” under Rule 60(b)(6). Id.; 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”); United States v. Edwards, 309 F.3d 110, 113 (3d Cir. 2002) (determining that a motion under Rule 60(b) to reconsider a section 2255 petition should be treated as an unauthorized successive section 2255 petition).

         Where the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. Pridgen, 380 F.3d at 727. As the Third Court has held, this principle is consistent ...


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