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Ferguson v. Diguglielmo

United States District Court, W.D. Pennsylvania

September 23, 2019

ANTONIO D. FERGUSON, Petitioner,
v.
SUPERINTEDENT DAVID DIGUGLIELMO, et al., Respondents.

          David S. Cercone, District Judge

          REPORT AND RECOMMENDATION

          LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         For the following reasons, it is respectfully recommended that Petitioner's “Motion to Vacate, Rule 60(B)(6) of the Federal Rules of Civil Procedure, ” which is construed as a Motion for Relief from Judgment or Order filed pursuant to Federal Rule of Civil Procedure 60(b)(6), be dismissed as an impermissible second or successive habeas petition over which this Court lacks jurisdiction. Also, to the extent that a Certificate of Appealability is required, it should be denied.

         II. REPORT

         Petitioner Antonio D. Ferguson (“Petitioner”) has filed a “Motion to Vacate, Rule 60(B)(6) of the Federal Rules of Civil Procedure, ” which the undersigned will construe as a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). (ECF No. 49.) Petitioner requests that the Court vacate its Order dated August 5, 2010, which denied his Petition for Writ of Habeas Corpus, and either grant him habeas relief or afford him an evidentiary hearing on his claim of what appears to be actual innocence. This is the third such motion that Petitioner has filed since the Court denied his habeas petition and the Third Circuit Court of Appeals denied his request for a Certificate of Appealability. See ECF Nos. 29, 40, 49. His two previous motions were denied on August 6, 2014 and September 12, 2017, respectively. See ECF Nos. 32, 48. Petitioner also filed an Application for Leave to File a Second or Successive Habeas Petition that was denied by the Third Circuit on December 16, 2013. See In Re: Antonio D. Ferguson, No. 13-4615 (3d Cir. Dec. 16, 2013). For the following reasons, it is recommended that the current Rule 60(b) Motion be denied as well.

         A. Abbreviated Factual and Procedural History

         The following facts are taken from the undersigned's Report and Recommendation dated June 16, 2010.

Petitioner was convicted of six residential burglaries and two attempted burglaries committed in November and December, 2003. Some of the burglaries occurred in the early morning hours after fresh snow had fallen and one set of distinctive footprints was left in the snow. The footprints were made by a type of lug boot bearing a distinctive flaw in the pattern on the left sole. The imprint of “Timberland” was distinctively visible on the footprint. Photographs were taken of footprints in undisturbed snow at various reported crime scenes. The police believed that the suspect in the above burglaries was wearing this type of boot.
The police noticed a pattern that one area of the city would be burglarized and the perpetrator would then move to another area opposite of the city. The police also determined the burglaries had the same modus operandi. The victims' back door would be smashed open and purses, wallets and other personal possessions in plain view would be quickly snatched.
On the evening of December 22, 2003, a burglary in progress at 2955 Poplar Street, Erie, Pennsylvania was reported. The police were informed the suspect was seen fleeing toward the east side of the city. As a result, police on the east side of the city were on the lookout for a suspect wearing lug boots. At about 1:00 p.m., Petitioner was seen walking on the street in the proximity to the reported burglary.
Petitioner was approached by a patrol officer who shined a flashlight on Petitioner and noticed his boots fit the description of Timberland boots. Another officer on the scene noticed the distinctive footprint left by Petitioner's boots in the snow. Petitioner was asked to show the bottom sole of his left foot. Petitioner complied and offered to remove his boots for the police inspection. The police determined the defect on the left sole appeared to match those seen in crime scene photographs.
Petitioner was transported to the Erie City Police Station where he gave oral statements implicating himself in the burglary at 2955 Poplar Street. Petitioner was shown a list of unsolved burglaries that were occurring throughout the city with the same modus operandi. Petitioner admitted to several of the burglaries on the list, but was unable to identify additional burglaries from the list of addresses. After these admissions, he was asked if a ride around the city and a view of the various properties would refresh his memory.
Petitioner agreed and rode with the police in their vehicle and pointed out additional homes he had burglarized. During this drive around the city, Petitioner implicated an alleged accomplice. Petitioner was ...

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