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Alvarez v. District Attorney Lehigh County

United States District Court, M.D. Pennsylvania

March 19, 2018

FELIX ALVAREZ, Petitioner
v.
DISTRICT ATTORNEY LEHIGH COUNTY, et al., Respondents

          MEMORANDUM

          SYLVIA H. RAMBO, United States District Judge

         I. BACKGROUND

         This case, which is styled as a Rule 60 motion pursuant to the Federal Rules of Civil Procedure, is filed by a previously unsuccessful federal habeas corpus petitioner, and appears to be an attempt at a second and successive federal postconviction petition. (Doc. No. 1.) Indeed, a review of Pacer[1] reveals that Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 6, 2014 with the United States District Court for the Eastern District of Pennsylvania. See Alvarez v. Kerestes, Civ. No. 14-4750 (E.D. Pa. 2014). The District Court for the Eastern District of Pennsylvania provides an informative background surrounding Petitioner's petition:

Alvarez is serving a sentence of imprisonment of 28 to 60 years following his convictions in the Lehigh County Court of Common Pleas of third-degree murder, attempted murder, aggravated assault, criminal conspiracy, and three counts of recklessly endangering another person. He seeks habeas relief on the grounds that his Sixth Amendment rights to a fair trial and the assistance of counsel were violated in various respects, including in trial counsel's failure to call eyewitnesses and character witnesses and to preserve a challenge to the sufficiency of the evidence . . .
Alvarez was arrested on September 6, 2007 following a grand jury presentment recommending charges against . . . him . . . The jury sitting in the Lehigh County Court of Common Pleas returned its verdict on November 9, 2009, finding Alvarez guilty of third-degree murder . . . attempted murder . . . aggravated assault . . . recklessly endangering another person . . . and criminal conspiracy . . . The court sentenced him on December 23, 2009 to an aggregate term of imprisonment of 28 to 60 years. Alvarez's trial counsel . . . continued to represent him on appeal. The Superior Court affirmed his conviction and sentence, however, on April 1, 2011. Alvarez did not seek allocator in the Pennsylvania Supreme Court.
On or about February 6, 2012, Alvarez filed a pro se petition seeking relief under the Post Conviction Relief Act, 42 Pa. Cons. Stat. §9541 et seq. (“PCRA”). After counsel was appointed and filed an amended petition, the court convened a hearing on June 5, 2012, at which Attorney McLain, Alvarez, and a putative defense witness testified. The PCRA Court denied relief on October 2, 2012. The Superior Court affirmed the dismissal of the petition . . . and the Pennsylvania Supreme Court declined review.

Alvarez, Civ. No. 14-4750, Doc. No. 12 (E.D. Pa. Jan. 1, 2016).

         Petitioner's federal habeas corpus petition was dismissed by the district court, finding that Alvarez's claims in his petition were reasonably adjudicated by the state court, were not cognizable as asserted, were procedurally defaulted, and lacked merit. (Id.) Alvarez then filed a motion for relief from judgment or order pursuant to Federal Rule of Civil Procedure 60(b) which the district court denied on September 6, 2016. Id.

         Currently incarcerated at the State Correctional Institution at Mahanoy, Frackville, Pennsylvania, Petitioner has filed this latest action as a motion under Rule 60(b) of the Federal Rules of Civil Procedure, which is actually in the nature of a second and successive federal petition for writ of habeas corpus. (Doc. No. 1.) Petitioner's motion requests that this Court review the state court's rulings because similar to his first habeas petition, he argues that his Sixth and Fourteenth Amendments rights were violated, his counsel was ineffective, and he is innocent. (Id.)

         II. DISCUSSION

         This petition is subject to summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 28 U.S.C. § 2254. Rule 4 provides: “If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Summary dismissal pursuant to Rule 4 is appropriate here because Petitioner effectively seeks to pursue what is undeniably a second and successive federal habeas corpus petition challenging his November 9, 2009 convictions. (Doc. No. 1.)

         Prisoners seeking habeas relief must satisfy specific procedural prerequisites. These prerequisites include the requirement that: “[a] claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). As the United States Court of Appeals for the Third Circuit has stated:

Pursuant to this gate-keeping function, AEDPA instructs the courts of appeals to dismiss any claim presented in a second or successive petition that the petitioner presented in a previous application. See 28 U.S.C. § 2244(b)(1). If a petitioner presents a new claim in a second or successive habeas corpus application, we must also dismiss that claim unless one of two narrow exceptions applies:
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, ...

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