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Brooks v. Zimmerman

United States District Court, W.D. Pennsylvania

April 18, 2018

GEORGE RAHSAAN BROOKS, Petitioner,
v.
CHARLES H. ZIMMERMAN Respondents.

          Arthur J. Schwab Judge.

          REPORT AND RECOMMENDATION RE: ECF NO. 22

          Maureen P. Kelly Chief Magistrate Judge.

         I. RECOMMENDATION

         It is 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 denied.

         II. REPORT

         George 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.

         On 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").[1] 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).

         On May 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.

         A. Discussion

         1. True Rule 60(b) Motion versus Second Section 2254 Petition.

         The 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).

         For 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.

         Accordingly, 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.

         A 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.[2] 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 corpus petition.").

         2. Even if Treated as a True Rule 60(b) Motion, It is Untimely Filed.

         To the 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.

         Federal Rule of Civil Procedure 60(b) expressly provides that:

         (b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

         On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, ...


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