United States District Court, W.D. Pennsylvania
R. Hornak, United States District Judge
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.
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. 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.
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.
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 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
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.
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.
Federal Rule of Civil Procedure 60(b)
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).
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.").
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
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 ...