United States District Court, E.D. Pennsylvania
years after his habeas petition and five years after
his first Rule 60(b) motion were denied, petitioner, Frank
Fluellen, has filed a second motion under
Fed.R.Civ.P. 60(b)(6). His recent motion, characterized by
petitioner as raising “procedural defects that led to
the district court's failure to consider a solid claim of
actual, factual innocence, ” requests a reconsideration
of the claims raised in his habeas petition. He
asserts that “the Rule 60 motion presents extraordinary
circumstances. It demonstrates an extreme malfunction of the
State Court system. In addition, it demonstrates procedural
irregularities in the way the 2254 habeas petition
was handled.” Pet.'s Mot. at 11.
this characterization, the motion does not rely on any
procedural defects in the habeas proceedings. On the
contrary, it is an attempt to relitigate his habeas
claims without asserting any factual evidence of his actual
innocence. Therefore, we shall deny his motion.
effort to overcome the Rule 60 time limit, petitioner
contends that there was a change in the law, entitling him to
relief. He relies upon Satterfield v. District Att'y
of Phila., 872 F.3d 152 (3d Cir. 2017). Specifically, he
argues that “newly discovered evidence supports
Petitioner's actual innocence by arresting officer's
conviction for filing false reports.” The evidence he
refers to is not new and does not support his claim of
innocence. According to petitioner, he learned of the
officer's conviction from his family members on September
has already made a claim that his conviction was tainted by
Police Officer Charline Solomon's testimony. As
petitioner acknowledges in his fifth PCRA petition filed on
September 23, 2009, he claimed that “newly discovered
evidence of Officer Charline Solomon's arrest and
conviction for filing false reports, falsifying documents and
lying to authorities” entitled him to relief. Pet. Mot.
at 6. That PCRA petition was dismissed on March 30, 2012.
Petitioner then filed a Rule 60(b) motion in this court on
March 13, 2013 which was dismissed by the late Judge Thomas
O'Neill on April 12, 2013. Petitioner's application
for a certificate of appealability was denied by the Third
Circuit on August 11, 2013.
continued raising Solomon's arrest when he sought
authorization from the Third Circuit to file a second
habeas petition. His request was denied. Thus, a
claim based on Solomon's arrest cannot be reasserted
under the label of a Rule 60(b) motion absent extraordinary
present motion is an attempt to circumvent the Third
Circuit's denial of his request to file a second
habeas petition raising the same issue. Casting his
pleading as a Rule 60(b) motion does not work.
did in his application to the Third Circuit, petitioner
premises his claim on Solomon's conviction for filing
false reports. The only difference between the
petitioner's application for authorization to file a
second habeas petition in the Third Circuit and this
Rule 60 motion is his reliance on Satterfield.
affords him no relief. Satterfield did not establish
new law. Instead, it amplified existing law that a claim of
innocence can equitably toll the habeas statute of
limitations. The Satterfield court emphasized that
the exception applies only upon a “credible showing of
actual innocence.” Id. at 154. It did not
alter the actual innocence standard requiring that a
petitioner present evidence so convincing that “no
juror acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Id. at 163.
has made no showing of actual innocence. He proffers nothing
more than the conviction of Solomon for falsifying reports in
other cases to support his claim. He proffers no evidence or
even suggests that Solomon falsified a report in his case.
Indeed, the evidence of his guilt was overwhelming. He and
his co-defendants were caught while robbing the victims in
their home. Petitioner escaped through a rear door and was
chased by the police who caught and arrested him.
claim based on Solomon's arrest is neither new nor
permissible. He knew of the arrest in 2009 and presented it
to both the district court and the Third Circuit to no avail
in 2013. Because the Third Circuit has denied his request to
raise the claim in a second habeas petition and
there has been no change in the law affecting his case,
petitioner's Rule 60(b) motion must be denied.
 Petitioner has used several names
throughout his criminal history. He has gone by Frank
Fluellen, Frank Cummings, James Frank, and James Cunningham.
In the state case which he challenges here, he used James
Cunningham. Commonwealth v. Cunningham, CP
51-CR-0301251-2000 (C.P. Ct., Phila. Co.). In his unrelated
homicide case, he was convicted as Frank ...