Opinion
3:02-cv-00168-KRG-KAP
03-30-2023
MICHAEL J. PENDLETON, Petitioner, v. ERIC TICE as successor to Raymond Sobina, SUPERINTENDENT S.C.I. SOMERSET, Respondent
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
Petitioner's fourth Rule 60(b) motion, ECF no. 59, seeks to reopen his first habeas corpus petition and overturn his state court conviction. The motion should be denied without a certificate of appealability.
Report
Under the Antiterrorism and Effective Death Penalty Act, as codified at 28 U.S.C.§ 2244(b)(3)(A), a district court lacks jurisdiction to consider claims presented in a “second or successive habeas corpus application” unless a court of appeals has authorized the petition in accordance with the criteria in 28 U.S.C.§ 2244(b)(2).
In Banister v. Davis, 140 S.Ct. 1698, 1705-06 (2020), in the course of holding that a Rule 59 motion promptly filed to alter a judgment in a habeas matter was not a second or successive petition, the Supreme Court explained that defining “second or successive” is based, first, on historical habeas doctrine and practice: if in pre-AEDPA cases a filing would have constituted an abuse of the writ, “it is successive; if not, likely not.” Second, “second or successive” is defined in light of AEDPA's purposes of conserving judicial resources, reducing piecemeal litigation, and lending finality to state court judgments within a reasonable time. See also Gonzalez v. Crosby, 545 U.S. 524, 532-33 (2005)(a Rule 60(b) motion seeking to vacate the judgment in a habeas matter is a second or successive habeas petition if it attacks the federal court's previous resolution of a claim on the merits, but not if it raises some defect in the integrity of the previous federal habeas proceedings.)
As mentioned above, this is petitioner's fourth motion to vacate. Since the denial of this petition in 2003, petitioner has filed motions to vacate every few years, ECF no. 15 (2010), ECF no. 32 (2015), ECF no. 38 (2018), as well as civil complaints essentially seeking injunctive relief equivalent to a writ of habeas corpus and motions in the Court of Appeals for authorization to proceed with a successive petition in this court.
There is no question that this motion would be a successive petition because it constitutes an abuse of the writ. Like the previous motions to vacate, the present motion is not an attack on the process used to reach the decision in the original habeas matter, it is an attack on Pendleton's underlying conviction. Petitioner claims that there was a defect in the integrity of the previous federal habeas proceedings because his original effort to litigate was hampered by his youth, the inadequacy of the legal resources available to him at the time, and by what has only recently been diagnosed as a developmental disability. New evidence about the adequacy of the efforts by a litigant (even if it would have been supportive of a tolling argument in 2003) does not call the integrity of the Court's proceedings into question. If it did, no judgment could ever be final.
As the motion would be a second or successive petition for a writ of habeas corpus, 28 U.S.C.§ 2244(b)(3)(A) would require petitioner to obtain authorization from the Court of Appeals before this court could consider it.
But the judgment that petitioner challenged by this petition and his previous motions to vacate does not exist any longer. Petitioner was resentenced in 2018. In Magwood v. Patterson, 561 U.S. 320, 331 (2010), the Supreme Court held that a resentencing constitutes a new judgment, and the first challenge to that new judgment cannot be “second or successive” for purposes of § 2244(b).
Accordingly, petitioner currently has an authorized petition pending, with counsel representing him, at Pendleton v. Tice, Case No. 3:18-cv-78-KRG-KAP (W.D.Pa.). In Lesko v. Secretary Pennsylvania Department of Corrections, 34 F.4th 211, 222-24 (3d Cir. 2022), the Court of Appeals has recently held that a petitioner who has received relief as to a sentence is not barred from raising, in a second-in-time habeas petition, a challenge to an undisturbed conviction.
Petitioner points to evidence, including a 2017 affidavit by his uncle and an allegedly impeaching piece of testimony that a witness in his trial gave in a subsequent trial in 2019, that he argues constitute evidence of his actual innocence. If that evidence should be considered, the place to present it is in the counseled habeas petition that is pending. The Court of Appeals suggested as much to petitioner in 2019. In re: Michael J. Pendleton, No. 19-2823 (3d Cir. October 11, 2019)(“[I]f no permission [under § 2244(b)] is necessary, Pendleton could file a motion to amend the petition in that proceeding”).
Petitioner's motion invites violation of the rule against hybrid representation. As the Supreme Court explained the doctrine in McKaskle v. Wiggins, 465 U.S. 168, 183 (1984), a litigant cannot “choreograph special appearances by counsel.” Petitioner is represented in the habeas proceeding by counsel, and once a pro se litigant seeks or agrees to any substantial participation by counsel, the litigation should be run by counsel unless the pro se litigant “expressly and unambiguously,” id., discharges counsel and returns to pro se status.
Petitioner's motion should be denied under Fed.R.Civ.P. 42(a)(2) because it is redundant of proceedings at Pendleton v. Tice, Case No. 3:i8-cv-78-KRG-KAP (W.D.Pa.), and because it violates the rule against hybrid representation.
To the extent a certificate of appealability should be considered separately, a certificate of appealability should not be issued unless the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.§ 2253(c)(2). The Supreme Court held in Slack v. McDaniel, 529 U.S. 473, 484 (2000), that:
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
It is not debatable that this Court could not proceed without authorization from the Court of Appeals, and that if the Court of Appeals authorized petitioner to proceed, this motion would be dismissed under Rule 42 and the rule against hybrid representation. No certificate of appealability should issue.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties have fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error)