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Mickens v. Harlow

United States District Court, W.D. Pennsylvania

April 28, 2017

ROBERT MICKENS, Petitioner,
v.
MICHAEL W. HARLOW; SUPERINTENDENT; and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents.

          OPINION

          Mark R. Hornak, United States District Judge

         Pending before the Court is the "Fed.R.Civ.P. 6O(b)(6)(2)(3)(d) Motion From a Judgement (sic) or Order, " filed by Petitioner, Robert Mickens, ECF No. 16. For the reasons that follow, the motion will be denied.

         I. Relevant Background

         Petitioner, Robert Mickens (Mickens), is well known to this Court. For over a decade, Mickens has filed petitions for a writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254 in which he challenges the judgment of sentence imposed upon him by the Court of Common Pleas of Allegheny County on May 15, 1995 at Criminal Docket Nos. CC 9415959 and 9502554.[1] A jury found Mickens guilty of First Degree Murder, Criminal Conspiracy, and Violation of the Uniform Firearms Act: Firearms Not to be Carried Without A License. At CC 199415959, First Degree Murder, he was sentenced to the mandatory life sentence without parole. At CC 199502554, Mickens received no further penalties.

         Mickens commenced his first federal habeas corpus action in this Court on June 13, 2002, which was docketed at Civil Action No. 02-01064 (W.D. Pa) (the "2002 Petition"), wherein he attacked his 1995 homicide conviction. On December 1, 2003, United States District Judge Arthur J. Schwab denied the petition on the merits because Mickens had failed to show that the State Courts' adjudication of his claims was contrary to or an unreasonable application of then-extant United States Supreme Court precedent and denied a certificate of appealability. See Order of 12/3/2003, ECF No. 17, adopting Report and Recommendation, 10/6/2003, ECF No. 5. On July 13, 2004, the United States Court of Appeals for the Third Circuit denied Mickens's request for a certificate of appealability, ECF No. 19.

         Four years later, on July 8, 2008, Mickens filed a second federal habeas corpus action in this Court, which was docketed at Civil Action No. 08-00950 (W.D. Pa) (the "2008 Petition"), in which he sought to raise new issues that were not raised in his 2002 petition, specifically, claiming that the Commonwealth had committed Brady[2] violations. On September 17, 2008, United States District Judge Arthur J. Schwab dismissed the petition for lack of subject matter jurisdiction as the Court of Appeals had not authorized Mickens to file a second or successive habeas petition under 28 U.S.C. § 2244(b). See Order of 09/17/08, ECF No. 7, adopting Report and Recommendation, 08/21/2008, ECF No. 5. On October 22, 2008, the United States Court of Appeals for the Third Circuit denied Mickens's application to file a second or successive petition, ECF No. 8. Mickens's petition for rehearing en banc also was denied.[3]

         Undeterred, four years later, on July 25, 2012, Mickens filed his third federal habeas corpus petition in this Court, which was docketed at Civil Action No. 12-01039 (W.D. Pa) (the "2012 Petition"). Yet again he sought to raise new issues that were not raised in his 2002 petition and for which he had not obtained precertification from the Court of Appeals. Specifically, relying upon Martinez v. Ryan, 566 U.S. 1 (2012), and McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), Mickens attempted to raise ineffective assistance of counsel claims and he reasserted his Brady violation claims. On August 20, 2012, 1 dismissed the petition as a second or successive § 2254 petition because Mickens had not demonstrated the necessary certification from the Court of Appeals. See Order of 8/20/2012, ECF No. 6, adopting Report and Recommendation, 07/31/2012, ECF No. 4. Mickens filed a Notice of Appeal with the Court of Appeals and contemporaneously filed with this Court a Motion to Resubmit Objections wherein he informed the Court that the Supplement, ECF No. 5, he filed on August 6, 2012, was an amendment to his Petition, not objections, which the Court had construed as objections. The Court of Appeals issued an Order staying the Appeal pending disposition of the post-decision motion before the District Court. Micken's Motion to Resubmit Objections was granted, Text Order of 9/24/2012, and I found, after de novo review of Micken's objections, that there was no basis upon which to reopen the case as the Court did not have subject matter jurisdiction because the Court of Appeals had not authorized Mickens to file a successive habeas petition under 28 U.S.C. § 2244(b), ECF No. 12. Mickens filed a Notice of Appeal with the United States Court of Appeals for the Third Circuit, ECF No. 13. On February 12, 2013, the United States Court of Appeals for the Third Circuit denied Mickens' request for a certificate of appealability, finding that "jurists of reason could not debate the correctness of the District Court's dismissal of Appellant's § 2254 petition as second or successive." ECF No. 15.

         And now, continuing the quadrennial pattern, on February 21, 2017, Mickens filed the instant motion, which he purports to advance under Rule 60(b) of the Federal Rules of Civil Procedure, ECF No. 16.

         II. Federal Rule of Civil Procedure 60(b)

         Federal Rule of Civil Procedure 60(b) "allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).

         In the habeas context, a motion labeled as a Rule 60(b) motion should be treated as a second or successive petition if it "seeks to add a new ground for relief from the underlying conviction or "attacks the federal court's previous resolution of a claim on the merits." Gonzalez, 545 U.S. at 532. Conversely, said motion properly is treated as a Rule 60(b) motion when it "attacks, not the substance of a claim on the merits, but some defect in the integrity of the federal habeas proceedings." Id.; see Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004) ("[I]n those instances in which 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.").

         Thus, the Court's first determination must be whether Mickens's motion constitutes a second or successive habeas petition or is a true Rule 60(b) motion. If I conclude that the motion is actually an unauthorized second or successive habeas petition, it must be dismissed for lack of subject matter jurisdiction or be transferred to the court of appeals for consideration as an application to file a second or successive petition. Gonzalez, 545 U.S. at 538. However, if I conclude that the motion is a true Rule 60(b) motion, the motion will be ruled upon without precertification by the Court of Appeals. Id. at 531-32.

         III. Discussion

         In this motion, Mickens appears to be rehashing the same Brady claims that he raised in his 2008 and 2012 Petitions. Because those were new claims and because Mickens had not received prior authorization from the Court of Appeals to bring a second or successive petition, the Court did not review those claims on ...


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