HARRISON v. OLIVER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

JI'HAAD AMORE HARRISON, )

)

) 2:22-cv-01453-CBB

Petitioner, )

) Christopher B. Brown

vs. ) United States Magistrate Judge

)

SUPERINTENDENT LONNIE J. )

)

OLIVER, and DISTRICT ATTORNEY

)

OF MERCER COUNTY, )

)

)

Respondents.

MEMORANDUM OPINION DENYING “MOTION FOR RELIEF FROM

JUDGMENT PURSUANT TO FED.R.CIV. RULE 60(b)” (ECF No. 55)

Pending before the Court is Petitioner Ji’Haad Amore Harrison’s Motion for

Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b). ECF No.

55. For the reasons that follow, the motion will be transferred to the United States

Court of Appeals for the Third Circuit for consideration as an application to file a

successive petition as required under 28 U.S.C. § 2244(b)(3)(A).

I. Background and Procedural History

On December 16, 2019, Harrison entered a negotiated plea of guilty to one

count each of rape, aggravated assault, strangulation, kidnapping, and robbery and

three counts of involuntary deviate sexual intercourse at Criminal Case No. CP-43-

CR-0000107-2019 in the Court of Common Pleas of Mercer County, Pennsylvania.

ECF No. 47-1. Immediately thereafter Harrison was sentenced to an aggregate

sentence of no less than twenty nor more than fifty years. Id. No post-sentencing

motions or a direct appeal were filed.

Harrison filed a timely petition under the Pennsylvania Post-Conviction

Relief Act (“PCRA”). Counsel was appointed and, after an evidentiary hearing at

which Harrison’s trial counsel and Harrison both testified, the PCRA court made

credibility determinations and denied the PCRA Petition. ECF No. 47-2. The

Superior Court affirmed the denial of the PCRA Petition, Commonwealth v.

Harrison, No. 728 WDA 2021 (Super. Ct. Feb. 28, 2022), and the Supreme Court of

Pennsylvania denied Harrison’s petition for an allowance of an appeal. ECF Nos. 7-

33 & 7-35.

After filing a second and third PCRA Petition, both of which were denied as

untimely and without merit, Harrison brought a collateral attack before this Court

pursuant to 28 U.S.C. § 2254. ECF No. 4. Harrison requested federal relief on four

grounds: (1) ineffective assistance of counsel by inducing an involuntary plea; (2)

wrongful acceptance of the trial court of his plea with no factual basis of a crime; (3)

new evidence which would entitle Harrison to a new trial; and (4) due process

violation because transcripts / discovery had been allegedly withheld from Harrison

during the appeal process. Id. As relevant here, Harrison’s third claim was vague

and without any supportive evidence. Specifically, Harrison argued that the police

Complaint and Affidavit of Probable Cause were false documents: “Police Complaint

and Affidavit of Probable Cause is falsified documents and had ‘no probable cause’

to establish warrant; when the police never seen or investigated the crime scene.

‘false police report.’” ECF No. 4, p. 15.

On March 20, 2024, United States Magistrate Judge Cynthia Reed Eddy

denied Harrison’s petition for writ of habeas corpus and entered judgment in favor

of Respondents and against Harrison. ECF Nos. 49-51.1 Applying the rules set

forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254, Judge Eddy denied Claim 1, the ineffective assistance of counsel

claim, finding that (1) the state court’s determination was neither contrary to, nor

an unreasonable application of, clearly established federal law as determined by the

Supreme Court, and (2) nor did that determination result in an unreasonable

determination of the facts in light of the testimony elicited during the plea colloquy

hearing and the PCRA evidentiary hearing. ECF No. 49. As to the remaining three

claims (Claims 2, 3, and 4), Judge Eddy found those claims to be procedurally

defaulted as Harrison had never raised the claims with the state courts. Id. On

June 27, 2024, the United States Court of Appeals for the Third Circuit denied

Harrison a certificate of appealability as the “claims lack merit or are inexcusably

procedurally defaulted.” ECF No. 54.

After unsuccessfully returning to state court,2 Harrison now returns to

federal court. On July 26, 2024, Harrison filed the instant Rule 60(b) motion. ECF

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties

voluntarily consented to have a U.S. Magistrate Judge conduct proceedings in the

case, including entry of a final judgment. See ECF Nos. 42 and 43. This case was

originally assigned to Magistrate Judge Cynthia Reed Eddy. Upon Judge Eddy’s

retirement, the case has been reassigned to this member of the Court.

2 On April 24, 2024, Harrison filed a fourth PCRA Petition and for the first

time attached an alleged statement by Carson Thompson-Smith claiming that he

saw Harrison on the exact day and time of the incident. ECF No. 57-1. The

No. 55. Harrison moves to set aside the judgment dismissing his federal habeas

petition asserting (1) that newly discovered facts show his “actual innocence” and

(2) a “new United States Supreme Court decided case: Jean Francis Pugin,

Petitioner v. Merrick B. Garland,” decided June 22, 2023. Harrison asks this Court

to “reverse plea of guilt and exonerate petitioner.” Id. at p. 3.

Harrison’s motion is far from a model of clarity. The basis for Harrison’s

claim of actual innocence appears to rest on the unverified April 6, 2024, statement

of Carlson Thompson-Smith, which was attached to Harrison’s April 24, 2024 PCRA

petition, but was not attached to this motion. ECF No. 57-1.3 As for the basis of the

“new law” claim, Harrison cites to Pugin v. Garland, but does not argue that this

case is a new rule of constitutional law, made retroactive to cases on collateral

review.4 See 28 U.S.C. § 2244(b)(1)(A).

Petition was dismissed by the PCRA court on May 21, 2024. ECF No. 57-2. On June

3, 2024, Harrison filed a fifth PCRA petition ECF No. 57-3. The PCRA Court

dismissed this petition finding it lacked supporting arguments. Id. On July 5,

2024, Harrison filed a “Petition for Allowance of Appeal,” (ECF No. 57-5), which the

PCRA Court construed as a sixth PCRA petition and denied that petition on July

16, 2024. ECF No. 57-6. In dismissing the petition, the PCRA court found that

“Defendant plead guilty to the charges and does not proffer that an averred

eyewitness, not available prior to the entering of a guilty plea, would be supplying

any exculpatory evidence.” Id. A review of Harrison’s state court criminal docket

reflects that Harrison has appealed that dismissal, and as of today, his appeal is

pending in the Pennsylvania Superior Court.

3 Harrison did not attach this witness statement to the Rule 60(b) motion;

however, Harrison references the statement in the motion. ECF No. 55 at p.2. The

Court takes judicial notice of this statement as it is an Exhibit attached to

Respondents’ response to the motion. ECF No. 57-1 at p.12.

4 In Pugin, the Supreme Court held that an offense may “relate to” obstruction

of justice under the Immigration and Nationality Act’s definition of an “aggravated

Respondents oppose the motion. ECF No. 57. They argue the actual

innocence claim fails because Harrison does not address any of the four

requirements under Pennsylvania law for newly discovered evidence. Respondents

do not address Harrison’s change of law argument. The matter is ripe for

disposition.

II. The Pending Motion

Because this is a federal habeas action, the Court must initially determine

whether Harrison’s petition is actually an unauthorized second or successive

petition or whether it is a true Rule 60(b) motion. In the habeas context, a motion

labeled as a Rule 60(b) motion should be treated as a second or successive petition if

it “seeks to add a new ground for relief” from the underlying conviction or “attacks

the federal court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby,

545 U.S. 524, 532 (2005).

Conversely, the motion should be properly treated as a Rule 60(b) motion

when it “attacks, not the substance of a claim on the merits, but some defect in the

integrity of the federal habeas proceedings.” Id.; see Pridgen v. Shannon, 380 F.3d

721, 727 (3d Cir. 2004) (“[I]n those instances in which the factual predicate of a

petitioner’s Rule 60(b) motion attacks the manner in which the earlier habeas

judgment was procured and not the underlying conviction, the Rule 60(b) motion

may be adjudicated on the merits.”). Harrison may not circumvent AEDPA’s rules

felony,” 8 U.S.C. § 1101(a)(43)(S), even if the offense does not require that an

investigation or proceeding be pending.

by couching an unauthorized second or successive habeas petition as a motion under

Rule 60(b).

III. Federal Rule of Civil Procedure 60(b)

At issue here is the interplay between Rule 60(b) and AEDPA. Federal Rule

of Civil Procedure 60(b) “allows a party to seek relief from a final judgment, and

request reopening of his case, under a limited set of circumstances including fraud,

mistake, and newly discovered evidence.” Gonzalez, 545 U.S. at 528.

In the habeas context, a motion labeled as a Rule 60(b) motion should be

treated as a second or successive petition if it “seeks to add a new ground for relief”

from the underlying conviction or “attacks the federal court’s previous resolution of

a claim on the merits.” Gonzalez, 545 U.S. at 532. AEDPA mandates that before a

petitioner may file a second or successive habeas corpus petition under 28 U.S.C. §

2254 challenging the same judgment of sentence that the petitioner previously

challenged in federal habeas, the petitioner must obtain an order from the court of

appeals authorizing the district court to consider the petition. 28 U.S.C. §

2244(b)(3)(A); see also Rule 9 of the Rules Governing Section 2254 cases. Once a

petitioner moves for authorization to file a second or successive petition, a three-

judge panel of the court of appeals must decide within thirty days whether there is

a prima facie showing that the application satisfies § 2244(b)(2)'s substantive

requirements. See 28 U.S.C. § 2244(3)(B). AEDPA's allocation of "gatekeeping"

responsibilities to the courts of appeals has divested district courts of jurisdiction

over habeas petitions that are second or successive filings. See, e.g., Burton v.

Stewart, 549 U.S. 147 (2007).

As noted previously, however, the motion is properly treated as a “true” Rule

60(b) motion when it “attacks, not the substance of a claim on the merits, but some

defect in the integrity of the federal habeas proceedings.” Gonzalez, 545 U.S at 532;

see Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004).

Thus, the Court’s first determination must be whether Harrison’s motion

constitutes a second or successive habeas petition or is a true Rule 60(b) motion. If

the Court concludes that the motion is actually an unauthorized second or

successive habeas petition, it must be dismissed for lack of subject matter

jurisdiction or be transferred to the court of appeals for consideration as an

application to file a second or successive petition. Gonzalez, 545 U.S. at 538.

However, if the Court concludes that the motion is a true Rule 60(b) motion, the

motion will be ruled upon without precertification by the Court of Appeals. Id. at

531-32; see also Lesko v. Sec’y Pennsylvania Dep’t of Corr., 34 F.4th 211, 222 (3d Cir.

2022) (citing 28 U.S.C. § 2244(b)(2), (b)(3)(A)).

Notwithstanding the “dismissal” language in § 2244(b), federal appellate

courts have ruled that if the prisoner improperly files a second or successive petition

without having first obtained authorization by the court of appeals, the district

court has the option of transferring the petition to the court of appeals. The Court

of Appeals for the Third Circuit permits, but does not mandate, transfer. Robinson

v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003).

IV. Discussion

Harrison’s motion is exactly the sort of motion the Supreme Court has stated

is in actuality a second or successive petition - the factual predicate of his claim

attacks his underlying state court conviction by raising new grounds for relief.

Gonzalez, 545 U.S. at 530-31; Pridgen, 380 F.3d at 727. Accordingly, the Court

holds that Harrison’s motion should properly be treated as a second or successive

petition and not as a Rule 60(b) motion. As such, this Court lacks jurisdiction to

consider it in the absence of prior authorization by the Court of Appeals for the

Third Circuit.

The record is clear that Harrison has not obtained leave from the United

States Court of Appeals for the Third Circuit to file a second or successive petition.

Because Harrison has not obtained the required authorization, the instant motion

constitutes an unauthorized second or successive petition.

V. Conclusion

As such, this Court has two options: either dismiss Harrison’s motion for

want of jurisdiction or transfer the motion to the Court of Appeals for the Third

Circuit. See Robinson, 313 F.3d at 139. In the interest of justice, the Court chooses

the latter option. Harrison’s motion will be transferred to the Court of Appeals for

the Third Circuit for consideration as an application to file a successive petition as

required under 28 U.S.C. § 2244(b)(3)(A).5

An appropriate Order follows.

Dated: August 20, 2024 BY THE COURT:

s/Christopher B. Brown

Christopher B. Brown

United States Magistrate Judge

5 This Opinion should not be read as a comment upon the merits of any claim

that Harrison could raise in a second or successive habeas petition or whether such

a petition would be subject to dismissal on other grounds.