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Foster v. Mahally

United States District Court, E.D. Pennsylvania

August 1, 2018

EARL FOSTER Petitioner,
LAWRENCE MAHALLY, et al. Respondents.


          C. DARNELL JONES, II J.

         I. Introduction

         Petitioner Earl Foster seeks relief from judgment under Federal Rule of Civil Procedure 60, claiming he is entitled to same on the basis of ineffective assistance of counsel. The Commonwealth has responded to Petitioner's Motion, arguing untimeliness, lack of merit, and improper mechanism. For the reasons set forth below, Petitioner's Motion shall be denied.

         II. Background

         On September 14, 2009, Petitioner pled guilty in the Court of Common Pleas to third-degree murder and carrying a firearm without a license, and was sentenced to 17½ to 30 years in prison. (Docket No. CP-51-CR-0014680-2007 (Phila. Cty. Ct. Com. Pl.)) On April 1, 2010, Petitioner filed a pro se Petition for Post-Conviction Relief pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. (“PCRA”), alleging that his trial counsel was ineffective for failing to inform him of his right to file a motion to withdraw his guilty plea within ten days of sentencing, and that the aforementioned plea was coerced by counsel. New counsel was appointed and filed an Amended PCRA Petition on behalf of Petitioner. On July 14, 2011, said Petition was dismissed for lack of merit. Petitioner appealed to the Pennsylvania Superior Court and judgment was affirmed on September 27, 2013. Petitioner then sought allocator, which the Pennsylvania Supreme Court denied on April 29, 2014.

         On September 25, 2014, Petitioner filed a timely Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Said Petition alleged ineffective assistance of both trial and PCRA counsel, as well as error by the Pennsylvania Superior Court for failing to remand the matter back to the PCRA court for an evidentiary hearing. (Mem. Supp. Pet. Habeas Corpus 8, 11, 13, 15.) Pursuant to Local Civil Rule 72.1.IV(c), the matter was referred to United States Magistrate Judge Marilyn Heffley for a Report and Recommendation (“R&R”). Judge Heffley ultimately determined Petitioner's claims were procedurally defaulted and/or without merit, and recommended dismissal of his Petition. (R&R, ECF No. 16.) On November 4, 2015, this Court adopted and approved the R&R. (Order Den. Pet'r's Habeas Corpus Pet'n, ECF No. 24.) On April 27, 2018, Petitioner filed the instant Motion requesting relief from judgment under Fed.R.Civ.P. 60(a)-(b)(6), to which the Commonwealth responded. (Pet'r's R. 60 Mot., ECF No. 26; Resp. to Pet'r's R. 60 Mot., ECF No. 28.)

         III. Discussion

         A. Request for Relief Under Rule 60(a)

         Rule 60(a) pertains to the correction of clerical mistakes, oversights and omissions. Fed.R.Civ.P. 60(a). To that end, it is imperative that “Rule 60(a) [] not [be construed as] a perpetual right to apply different legal rules or different factual analyses to a case. It is only mindless and mechanistic mistakes, minor shifting of facts, and no new additional legal perambulations which are reachable through Rule 60(a).” Bernard v. East Stroudsburg Univ., No. 3:09-CV-00525, 2017 U.S. Dist. LEXIS 2660, at *7 (M.D. Pa. Jan. 9, 2017) (internal citations omitted). Further, a motion brought pursuant to Rule 60(a) may “not alter the factual record or require any new legal reasoning or the renewed resolution of any factual or legal issues.” Id. at *8. To that end,

[A] motion to correct a clerical mistake does not affect the finality of the original judgment, and a Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what originally was pronounced[.] Thus, Rule 60(a) does not authorize the District Court to correct any and all wrongly decided substantive issues after the fact.

Id. at *6 (internal quotation marks and citations omitted).

         Although Petitioner correctly asserts that “Rule 60(a) permits the correction of not only clerical mistakes, but also inadvertent errors when correction is necessary not to reflect a new and subsequent intent of the court, but to conform the order to the contemporaneous intent of the court, ” Petitioner misapplies the law to his case. (Pet'r's R. 60 Mot. 7) (quoting Robert Lewis Assocs., Ltd. v. Webb, 473 F.3d 498, 505, n.11 (2d Cir. 2007) (internal quotation marks and citations omitted)).

         Petitioner alleges that Judge Heffley expressed a “clear intention at the time [her recommendation was rendered that] Petitioner Foster was entitled to a meaningful post-conviction review on the merits.” (Pet'r's R. 60 Mot. 8.) Petitioner interprets Judge Heffley's R&R as a decision that does not reflect her intent and therefore constitutes a violation of federal law. (Pet'r's R. 60 Mot. 9.) Upon review of the record, Judge Heffley determined that two of Petitioner's claims (ineffective assistance of both trial and PCRA counsel) were procedurally defaulted and Petitioner failed to establish facts or evidence to excuse said default. (R&R 7-8, 11.) Judge Heffley also reviewed the merits of all claims presented by Petitioner-including those that were procedurally defaulted-and determined that no facts of record supported said claims. (R&R 7-12.) Because Petitioner disagrees with this finding, he is attempting to assert that Judge Heffley's R&R did not conform to her intent. However, this Court's review of the matter reveals Judge Heffley's decision to be in complete conformity with the facts, circumstances, and evidence of record. Thus, Petitioner's claim is inappropriate for Rule 60(a) relief.

         B. Request for Relief ...

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