United States District Court, W.D. Pennsylvania
ANTONIO D. FERGUSON, Petitioner,
SUPERINTEDENT DAVID DIGUGLIELMO, et al., Respondents.
S. Cercone, District Judge
REPORT AND RECOMMENDATION
PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
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.
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.
Abbreviated Factual and Procedural History
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
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 ...