United States District Court, W.D. Pennsylvania
J. Schwab Judge.
REPORT AND RECOMMENDATION RE: ECF NO. 22
Maureen P. Kelly Chief Magistrate Judge.
respectfully recommended that the "Rule 60(b)(6) and
Rule 60(d) Motion for Extraordinary Relief and Change in the
Law, " ECF No. 22, be denied and, to the extent that one
is needed, that a certificate of appealability likewise be
Rahsaan Brooks, also known as George Rahsaan Brooks-Bey
("Petitioner"), initiated this Section 2254 habeas
case in 1988. The habeas petition was denied in 1989. ECF No.
1. Thereafter, a certificate of probable cause was denied by
the United States Court of Appeals for the Third Circuit in
1990 and a petition for writ of certiorari was denied by the
United States Supreme Court in 1991. Id.
February 27, 2018, Petitioner filed what he captioned as a
"Rule 60(b)(6) and Rule 60(d) Motion for Extraordinary
Relief and Change in the Law" (the "Purported Rule
60(b) Motion"). ECF No. 22. The instant motion is simply
the latest in Petitioner's repeated attacks here in
federal court on his state court convictions for, inter
alia, second degree murder. See ' ECF No. 22 at
¶¶ 21 - 26 (Petitioner's summarization of his
federal court attacks).
18, 1976, Petitioner was convicted of robbery and murder in
the second degree by a jury in the Court of Common Pleas of
Allegheny County in connection with the death of Michael
Miller. Brooks v. Zimmerman. 712 F.Supp. 496 (W.D.
Pa. 1989) (which is the reported case that denied
Petitioner's habeas petition herein which is the object
of the Purported Rule 60(b) Motion). More than 40 years after
the conviction, and almost 30 years since this Court entered
its final order denying his Section 2254 Petition in this
case, Petitioner now brings this Purported Rule 60(b) Motion.
Because we find the Purported Rule 60(b) Motion to constitute
a second or successive Section 2254 petition, over which this
Court lacks subject matter jurisdiction, the Court recommends
denial of the Motion. In the alternative, even if treated as
a true Rule 60(b) Motion, it should be denied because of the
length of time that has passed between the time that the
judgment in this case was entered and the time this Purported
Rule 60(b) Motion was filed.
True Rule 60(b) Motion versus Second Section 2254
Anti-Terrorism and Effective Death Penalty Act
("AEDPA") bars state prisoners from bringing second
or successive Section 2254 habeas petitions in the United
States District Courts without first obtaining permission
from the relevant United States Court of Appeals. 28 U.S.C.
§ 2244(b). Since AEDPA's enactment, federal courts
had been facing the difficult task of determining whether a
motion ostensibly filed pursuant to Fed.R.Civ.P. 60(b) was
truly, in law and in fact, a Rule 60(b) motion or whether it
was a second or successive Section 2254 habeas petition. The
United States Supreme Court addressed this issue in the case
of Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
habeas petitioners, Rule 60(b) may not be used to avoid the
prohibition set forth in 28 U.S.C. § 2244(b) against
second or successive petitions. In Gonzalez, the
Supreme Court explained that a Rule 60(b) motion constitutes
a second or successive habeas petition when it advances a new
ground for relief or "attacks the federal court's
previous resolution of a claim on the merits."
Id. at 532. "On the merits" refers
"to a determination that there exist or do not exist
grounds entitling a petitioner to habeas corpus relief under
28 U.S.C. §§ 2254(a) and (d)." Id. at
n.4. The Supreme Court further explained that a Rule 60(b)
motion does not constitute a second or successive petition
when the petitioner "merely asserts that a previous
ruling which precluded a merits determination was in error -
for example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar."
Id. When "no 'claim' is presented,
there is no basis for contending that the Rule 60(b) motion
should be treated like a habeas corpus application."
Id. at 533. However, when a "claim"
attacks the validity of the state court conviction, as
opposed to attacking the judgment of the federal habeas
court's procedural ruling, then the Rule 60(b) motion
constitutes a second or successive habeas petition over which
the District Court lacks subject matter jurisdiction.
a threshold determination must be made as to whether the
instant Purported Rule 60(b) Motion constitutes a true Rule
60(b) motion or a second or successive Section 2254 petition.
See United States v. Powell, 438 Fed.Appx. 706, 708
(10th Cir. 2011) ("We must first decide
whether Dowell's motion is properly characterized as a
Rule 60(b) motion or whether it is actually a second or
successive habeas petition under 28 U.S.C. §
2255(h)."). We find that the Purported Rule 60(b) Motion
is a second or successive Section 2254 petition.
review of the issues Petitioner raises in the Purported Rule
60(b) Motion clearly demonstrates that, with the exception of
the Ground denominated as Issue I, Petitioner is raising new
grounds for relief which attack the validity of his state
court conviction within the contemplation of Gonzalez v.
Crosby. As such, his claims are not properly
before this Court because it lacks subject matter
jurisdiction over such claims, which, in effect, seek to
directly attack his state court conviction and not the
judgment of this Court which denied his 1988 habeas petition.
See, e.g,, In re Carrascosa. 616 Fed.Appx. 475, 476
(3d Cir. 2015) ("The District Court denied this motion
with prejudice for lack of subject matter jurisdiction, see
Carrascosa v. United States, 2010 WL 4116990 (D.N.J.
Oct. 19, 2010), and we denied Carrascosa's application
for a certificate of appealability, see C.A. No. 10-4698,
agreeing with the District Court that the Rule 60(b) motion
was in reality an unauthorized second or successive habeas
Even if Treated as a True Rule 60(b) Motion, It is Untimely
extent that the Purported Rule 60(b) Motion could be
construed as a true Rule 60(b) motion, Petitioner fails to
carry his required burden to show that the equities weigh in
favor of granting relief under Federal Rule of Civil
Procedure 60(b) given his delay in bringing this Motion and
so the Motion should be denied.
Rule of Civil Procedure 60(b) expressly provides that:
Grounds for Relief from a Final Judgment, Order, or
motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, ...