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Pelino v. Gilmore

United States District Court, W.D. Pennsylvania

June 5, 2018

VITO PELINO, Petitioner,
ROBERT GILMORE, et al., Respondents.


          ROBERT C. MITCHELL United States Magistrate Judge

         Petitioner, Vito Pelino, has filed a motion for relief from judgment pursuant to Rule 60(b)(1) and 60(b)(2) (ECF No. 47). Respondents have submitted a response (ECF No. 58) and the motion is ripe for disposition. For the reasons that follow, it will be dismissed and, because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

         Petitioner had filed a counseled petition for writ of habeas corpus on June 14, 2016. On July 6, 2017, the Court entered a Memorandum Opinion and Order (ECF No. 35) which concluded that Petitioner's claims were procedurally defaulted and also meritless.

         On August 5, 2017, Petitioner filed a counseled notice of appeal and the Court of Appeals for the Third Circuit docketed it as C.A. No. 17-2717. On September 21, 2017, Petitioner filed a Motion to Expand the Record, which asked the court to consider an affidavit from his PCRA counsel, Paul Gettleman, in which Gettleman “conceded” his ineffectiveness. On February 5, 2018, the Court of Appeals entered an order denying Petitioner's request for a certificate of appealability. The court stated that:

For substantially the reasons given by the Magistrate Judge, [Petitioner] has not made a substantial showing of the denial of a constitutional right nor shown that reasonable jurists would find the correctness of the Magistrate Judge's procedural determinations debatable. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). [Petitioner's] motion to expand the record is denied without prejudice to [his] seeking any relief that may be available under Federal Rule of Civil Procedure 60.

(C.A. No. 17-2717, order dated Feb. 5, 2018).

         On February 9, 2018, Petitioner's counsel filed a motion to withdraw, which the Court of Appeals granted on February 26, 2018. Petitioner filed a pro se motion for rehearing, which the Court of Appeals denied on April 6, 2018.

         On March 5, 2018, Petitioner filed a pro se motion under Rule 60(b) in this Court. On May 31, 2018, Respondents filed reply in opposition (ECF No. 58).

         In the brief in support of his motion, Petitioner contends that this Court made numerous factual and legal errors in dismissing his habeas corpus petition. Specifically, he argues that: 1) the Court used post hoc rationalization to justify the Commonwealth's prejudicial statement in the closing argument; 2) the Court failed to address his claim of ineffectiveness for failure to impeach the Commonwealth's key witness; 3) the Court erroneously stated that he failed to present any evidence that trial counsel was aware of certain witnesses at the time of trial; 4) the Court erroneously stated that the affidavit of DeDominicis that he presented was not before the trial or appellate courts when it was in fact before them; 5) the Court held that his claims were procedurally defaulted when he presented evidence that his PCRA counsel was ineffective for failing to raise these claims; 6) the Court cited Greer v. Miller, 483 U.S. 756, 765 (1987), without noting that in that case defense counsel did object to the prosecutor's prejudicial remarks and the judge gave a curative instruction, unlike in his case; and 7) he presents newly discovered evidence in the form of an affidavit from his PCRA counsel, who admits his ineffectiveness and thereby would allow his previously defaulted claims to be reviewed de novo.

         Petitioner claims that he relies upon Rule 60(b)(1) and 60(b)(2). However, Rule 60(b)(1) refers to relief based on: “mistake, inadvertence, surprise, or excusable neglect” and Rule 60(b)(2) refers to relief based on “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Neither provision is applicable to this case. With respect to Rule 60(b)(1), some courts have held that legal error without more cannot be corrected under Rule 60(b) and others have held that legal error may be characterized as a “mistake, ” but only where the motion is made within the time allowed for appeal. Page v. Schweiker, 786 F.2d 150, 154-55 (3d Cir. 1986). Petitioner did not file his motion within the thirty-day period allowed for appeal. Therefore, he cannot raise legal error in a Rule 60(b)(1) motion now.

         With respect to “newly discovered evidence, ” it consists of an affidavit of his PCRA counsel in which counsel admits his ineffectiveness. However, this evidence would not have changed the outcome of the proceeding because the Court reached the merits of Petitioner's claims and thus his PCRA counsel's ineffectiveness need not serve as a method to excuse procedural default.[1]

         Rule 60(b) also allows a court to relieve a party from a final judgment, order or proceeding based on, inter alia, “any other reason that justifies relief.” Fed. R.Civ.P. 60(b)(6). In Gonzalez v. Crosby, 545 U.S. 524 (2005), the question presented was whether, in a habeas case, Rule 60(b) motions are subject to the additional restrictions that apply to “second or successive habeas corpus petitioner under [AEDPA]...” and concluded, “a subsequent change in substantive law is a reason justifying relief from the previous denial of a claim ... such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly.” 545 U.S. at 531. The Court stated that:

In most cases, determining whether a Rule 60(b) motion advances one or more “claims” will be relatively simple. A motion that seeks to add a new ground for relief, as in Harris [v. United States, 367 F.3d 74 (2d Cir. 2004)], will of course qualify. A motion can also be said to bring a “claim” if it attacks the federal court's previous resolution of a claim on the merits, 4 since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.5
4 The term “on the merits” has multiple usages. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501-503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). We refer here to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. ยงยง 2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits ...

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