United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
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. 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
FACTUAL AND PROCEDURAL BACKGROUND
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).
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).
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.
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).
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.
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.
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.
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).
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.
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 ...