United States District Court, W.D. Pennsylvania
C. MITCHELL United States Magistrate Judge
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.
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
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).
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.
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).
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.
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.
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.
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. §§ 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 ...