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Frails v. Fisher

United States District Court, M.D. Pennsylvania

October 13, 2017

CETEWAYO FRAILS, Petitioner
v.
JON FISHER, Respondent

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         Pending before the court is petitioner Cetewayo Frails's pro se motion for relief of judgment pursuant Fed.R.Civ.P. 60(b) seeking to re-open his 2010 habeas corpus petition filed under 28 U.S.C. §2254. Frails, a state inmate incarcerated at the State Correctional Institution at Smithfield, is currently serving a life sentence, imposed in 1999 in the Court of Common Pleas of Carbon County, for robbery with the intent to inflict serious bodily injury, criminal conspiracy, aggravated assault, and second degree murder.[1] Upon the court's review of the record in this case, as well as Frails's motion, (Doc. 42), and the briefs of the parties, the motion is DENIED.[2]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Over seven years ago, on September 21, 2010, Frails filed, pro se, a petition for a writ of habeas corpus pursuant to §2254 to challenge his Carbon County Court of Common Pleas conviction. (Doc. 1, Doc. 31, at 1). Frails filed his habeas petition during the pendency of his fourth PCRA petition in state court. This court stayed Frails's habeas petition while his PCRA petition was pending. (Doc. 31, at 8-9).

         Frails filed a motion to re-open his habeas corpus proceedings on February 28, 2012, (Doc. 10), and the motion was granted on May 14, 2012, (Doc. 16). Frails then was permitted to file, through counsel, his amended habeas petition dated July 23, 2012. (Doc. 19). In his amended petition, Frails alleged that the Commonwealth engaged in prosecutorial misconduct and that his Sixth and Fourteenth Amendment rights were violated under Brady v. Maryland, 373 U.S. 83 (1963) because the Commonwealth failed to disclose exculpatory evidence, namely, a deal for a recommendation for leniency it had with a witness (Verna Russman) depending on how the witness testified in his trial. Furthermore, Frails alleged that his Sixth and Fourteenth Amendment rights were violated because the jury was not a fair cross-section of the community, and the trial court erred by excluding relevant and material audiotape evidence. (Doc. 31, at 9).

         Finding no basis to grant habeas relief, the district court issued a thorough and well-reasoned Memorandum and an Order denying Frails's habeas petition on June 30, 2014. (Doc. 31, Doc. 32). In its Order, the district court also found that there was no basis for the issuance of a certificate of appealability (“COA”). Frails then filed a motion for reconsideration of the Order, (Doc. 33), which was denied on February 12, 2015. (Doc. 38).

         On March 11, 2015, Frails filed a notice of appeal with Third Circuit seeking permission to file an appeal regarding the district court's February 12, 2015 Order. (Doc. 39). The Third Circuit issued an Order on September 3, 2015, denying Frails's request for issuance of a COA under 28 U.S.C. §2253(c)(1) to appeal the denial of his §2254 habeas petition. (Doc. 41).

         On May 17, 2017 Frails filed, pro se, a motion for relief of judgment pursuant Fed.R.Civ.P. 60(b) seeking to re-open the judgment denying his §2254 petition. (Doc. 42).

         On May 31, 2017, the Respondent filed a brief in opposition to Frails's Rule 60(b) motion. (Doc. 43). Respondent asserts the one year time limit of appeal under Fed.R.Civ.P.60(b)(1-3) bars the reopening of this case, and states that “Rule 60(b)(6) is not intended as a means by which the time limitations of 60(b)(1-3) may be circumvented.” ((Doc. 43, at 3) (quoting Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975)). Respondent also asserts that Frails engages in pure speculation in raising Judge Kosik's alleged mental condition. Finally, Respondent also points out that the state court determinations regarding the claims Frails raised in his habeas petition are to be taken as correct unless shown otherwise by clear and convincing evidence to the contrary, and that Frails failed to offer any such evidence.

         On June 13, 2017, Frails filed a reply brief in support of his motion. (Doc. 44). Frails again contends that his case should be reopened due to extraordinary circumstances. Frails states that Judge Kosik overlooked the state court record that supported the idea that there was a possible pre-trial deal depending on how Russman testified during his trial. Further, Frails claims that the Commonwealth allowed perjured testimony and withheld information that it offered a deal to Russman depending on her testimony.

         On October 5, 2017, Frails filed a letter to the court in support of his motion. (Doc. 45). Frails repeats that he seeks reopening of his first habeas corpus petition “based on circumstances beyond all parties control- former Judge Kosik's deteriorating mental condition interfering with a comprehensive review of his first habeas corpus petition.” (Id. at 1). Frails also contends that his Rule 60(b) motion should be granted based on a recent Third Circuit decision, namely, Haskell v. Superintendent Greene SCI, 866 F.3d 139 (3d Cir. 2017).

         II. DISCUSSION

         Rule 60(b) of the Federal Rules of Civil Procedure provides a limited avenue of relief where a final judgment or order has been entered in a case based on one or more of the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or discharged; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

         Moving pursuant to Fed.R.Civ.P. 60(b), Frails requests this court to reopen his original §2254 habeas petition claiming that Judge Kosik was biased against him, that the judge incorrectly decided the merits of his claims, and that the judge may have somehow been impaired when he ruled on his petition. Frails contends that these are grounds entitling him to Rule 60(b) relief. In considering Frails's motion, “any time a district court enters a judgment, ..., it retains, by virtue of Rule 60(b), jurisdiction to entertain a later motion to vacate the judgment on the grounds specified in the rule.” Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993) (alterations and internal quotation marks omitted). A motion brought under Fed.R.Civ.P. 60(b) “is ...


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