Petition for Writ of Certiorari — George R. Durham, Petitioner v. Josh Shapiro, Attorney General of Pennsylvania

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September 19, 2019

CLD-281

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 19-1832

GEORGE M. DURHAM, Appellant

v.

ATTORNEY GENERAL PENNSYLVANIA

(W.D. Pa. Civ. No. 2-17-CV-00662)

Present:

CHAGARES, RESTREPO and SCIRICA. Circuit Judges

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Submitted are:

(1)

Appellant’s request for a certificate of appealability under 28 U.S.C.

§ 2253(c)(1); and

(2)

By the Clerk for possible dismissal due to a jurisdictional defect

in the above-captioned case.

Respectfully,

Clerk

__________________________ __ ___ ORDER_______ ____________________ _____

The foregoing request for a certificate of appealability is denied because Appellant

has failed to demonstrate that jurists of reason would debate that he was not entitled to

relief under Federal Rule of Civil Procedure 60(b). See Slack v. McDaniel, 529 U.S.

473, 484 (2000); Morris v. Horn. 187 F.3d 333, 340-41 (3d Cir. 1999). To the extent that

Appellant challenged the manner in which his habeas judgment was procured, he failed to

make a substantial showing of error by the District Court. See Gonzalez v. Crosby. 545

U.S. 524, 531-32 (2005); Pridgen v. Shannon. 380 F.3d 721, 727 (3d Cir. 2004): To the

extent that Appellant sought to attack his underlying conviction and sentence, his Rule

60(b) motion is properly viewed as an unauthorized second or successive 28 U.S.C.

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"Appendix A."

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§ 2254 petition over which the District Court lacked jurisdiction absent prior

authorization from this Court. See Gonzalez. 545 U.S. at 531-32; Pridgen, 380 F.3d at

727.

By the Court,

s/Anthony J. Scirica

Circuit Judge

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Dated: October 8, 2019

Sb/cc: George M. Durham

All Counsel of Record

A True Copy^0

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Patricia S. Dodszuweit, Clerk

Certified Order Issued in Lieu of Mandate

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GEORGE R, DURHAM, HN-4394,

Petitioner,

v.

)

)

)

)

2:17-cv-662

)

ATTORNEY GENERAL OF PENNSYLVANIA, )

)

Et al.,

Respondents.

)

REPORT and RECOMMENDATION

I. Recommendation:

It is respectfully recommended that the Rule 60(b) motion filed in the above captioned

case (ECF No. 17) be dismissed as being without a jurisdictional basis and that a certificate of

appealability be denied.

II. Report:

George R. Durham, an inmate at the State Correctional Institution-Fayette has presented a

second Rule 60(b) motion seeking "relief from Judgment of Magistrate Judge Robert C. Mitchell

of this Court denying petitioner’s habeas corpus petition” as a result of the Supreme Court’s

decision in McQuiggin v. Perkins. 569 U.S. 383 (2013).

Historically, Durham filed a habeas petition at 2:1 l-cv-719 challenging his conviction

and life sentence imposed at No. 1860 of 2007 in the Court of Common Pleas of Beaver County,

Pennsylvania. That petition was dismissed on the merits on August 24, 2015 (ECF No. 73). On

May 5, 2016 a certificate of appealability was denied by the Court of Appeals (ECF No. 82). On

June 27, 2016, Durham filed a Rule 60(b) motion (ECF No. 83) and on July 5, 2016 relief was

denied (ECF No. 88). On December 5, 2016, a certificate of appealability was denied by the

Court of Appeals based on a lack of showing of "extraordinary circumstances where, without

[Rule 60(b)] relief, an extreme and unexpected hardship would occur. Ml

United States Court of Appeal for the Third Circuit Docket No. 16-3453.

"Appendix B."

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Durham next filed for leave of the Court of Appeals to file a successive habeas corpus at

that Court's Docket No. 17-1466. Leave was denied on March 28, 2017.

Undeterred, on May 22, 2017, Durham submitted a habeas corpus petition m this Court

which was docketed at the instant case number in which he Once again seeks to challenge this

same state conviction (ECF Nos. 1 and 4). That petition was dismissed on September 6, 2017 as

a successive petition for which leave to proceed had not been granted by the Court of Appeals

(ECF Nos 5 and 7). Durham then filed a Rule 60(b) motion for relief from judgment (ECF . No.

9) which was denied on November 16, 2017 (ECF No. 12) and a certificate of appealability was

denied by the Court of Appeal on February 14, 2018 (ECF. No.16), In the guise of a Rule 60(b)

motion (ECF No.9), Durham seeks to challenge the latest ruling of the Court of Appeal denying

him a certificate of appealability. Durham relies on McQuiggin which he contends was a change

in relevanfdecisional law and permits the review of the “extraordinary circumstance” which

justify relief Under F.R.Civ.P. 60(b)(6).2 In McQuiggjn at p. 399 the Court held,

To invoke the miscarriage of justice exception to AEDPA’s statute of

limitations, we repeat, a petitioner “must show that it is more likely

than not that no reasonable juror would have convicted him in the

light of the new evidence.” Unexplained delay in presenting new

evidence bears on the determination whether the petitioner has made

the requisite showing... As we stated in Schlup, “[a] court may

consider how the timing of the submission and the likely credibility of

[a petitioner’s] affiants bear on the probable reliability of... evidence

[of actual innocence].” (internal citations omitted).

Petitioner now contends that “the District Court should have adjudicated petitioner’s

claim of actual innocence

and ineffective assistance of counsel in petitioner’s 2254 writ of

habeas corpus [filed in this case]. »3

raised in the original petition filed here on June 14, 2017, dismissed

These issues were

denied by the Court of Appeals on February 14, 2018 at which

twice and leave to appeal was

time the Court wrote:

The foregoing request for a certificate of appealability is denied. See

28 U.S.C. § 2253. Reasonable jurists would not debate the District

Court’s denial of appellant’s motion pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure on the ground that it lacked

2 See: Motion at H 19.

3 Id. at H 25.

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jurisdiction to consider appellant’s challenge to this Court’s March

28, 2017 order denying his application pursuant to 28 U.S.C. § 2244

to file a second or successive § 2254 petition. Reasonable jurists

would not debate that appellant failed to make a substantial showing,

see 28 U.S.C. § 2253(c), of “extraordinary circumstances where,

without [Rule 60(b)] relief, an extreme and unexpected hardship

would occur.” Cox v. Horn. 757 F.3d 113, 120 (3d Cir. 2014)

(emphasis added). 4

,

As observed by the Court of Appeals5, the record in this case fails to demonstrate any

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basis upon which to conclude that an innocent person has been convicted other than the selfserving declarations of the petitioner. At best, in this case as well as the prior case filed at 2: 11cv-719, the record demonstrates that the trial contained disputed issues which were resolved by

the jury adversely to the petitioner.

Accordingly, there is no basis upon Rule 60(b) relief can be granted, and it is

recommended that the motion be dismissed, and that certificate of appealability be denied.

Litigants who seek to challenge this Report and Recommendation must seek review by

the district judge by filing objections within fourteen (14) days of this date and mailing them to

United States District Court, 700 Grant Street, Pittsburgh PA 15219-1957. Failure to file timely

objections will waive the right to appeal.

Respectfully submitted,

s/ Robert C. Mitchell

United States Magistrate Judge

Filed: August 16, 2018

4 Interestingly, the petitioner places reliance of Satterfield v. District Attorney, 872 F.3d 152, 155 (3d Cir. 2017)

wherein the Court wrote “McOuiggin. implicates the fundamental principle of avoiding the conviction of an

innocent man and attempts to prevent such a mistake through the fundamental miscarriage of justice exception. If

Satterfield can make the required credible showing of actual innocence to avail himself of the fundamental

miscarriage of justice exception had McOuiggin been decided when his petition was dismissed, equitable analysis

would weigh heavily in favor of deeming McOuiggin’s change in law, as applied to Satterfield’s case an exception

circumstance justifying Rule 60(b)(6) relief.” We observe that the Court of Appeal’s decision of this case on April

14, 2018 was written after Satterfield was decided.

5 In this case as well as in 2:1 l-cv-719.

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Case 2:17-cv-00662-CB-RCM Document 2U Hied uz/u4/iy rage x ui o

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

)

)

)

)

)

)

GEORGE R. DURHAM,

Petitioner,

v.

Civil Action No. 17-662

Judge Cathy Bissoon

Magistrate Judge Robert C. Mitchell

THE ATTORNEY GENERAL OF

THE STATE OF PENNSYLVANIA, et al, )

Respondents.

)

)

MEMORANDUM ORDER

This case has been referred to United States Magistrate Judge Robert C, Mitchell for

pretrial proceedings

in accordance with the Magistrates Act, 28 U.S.C. §§ 636 and Local Rule of

Civil Procedure 72.

On August 16,2018, the Magistrate Judge issued a Report and Recommendation

(“Report,” Doc.

18) recommending that Petitioner George R. Durham’s Second Motion for

Relief from Judgment under Federal Rule of Civil Procedure 60(b)(6) (Doc. 17) be dismissed as

being without a

jurisdictional basis. The Report was served on the parties, and Petitioner filed

timely Objections (Doc. 19).

Petitioner objects on two grounds. First, he objects that the Report incorrectly

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characterizes the evidence he has put forward to demonstrate his innocence as “self-serving

declarations of the Petitioner

” when Petitioner rather claims that the evidence of his innocence is

the testimony of several witnesses at his trial who testified to facts that would demonstrate a

'Appendix C."

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Case 2:17-cv-00662-CB-RCM

Document 20 Hiea u^ayc c. Ul w

, Petitioner objects that his Rule 60(b)(6) Motion

3-5.) Second

ive habeas petition because, under Satterfield u. District

should not have been treated as a successive

, 872 F.3d 152 (3d Cir. 2017), he is claiming actual innocence and there

of Philadelphia

in decisional law by virtue of the Supreme Court’s decision in

has been a relevant change m

complete alibi. (Objections

Mr.Ouiggin V.

Perkins, 569 U.S. 383 (2013). (Objections

6-7.)

review of the pleadings and documents in the case,

The Court has conducted a de novo

•s related actions, the Report, and the Objections. The Court

the procedural history of Petitioner

in, attempting to relitigate

conclusion that Petitioner is, once again

fully agrees with the Report s

the merits of claims that have been previously adjudicated; reaching die merits of these claims

would require reviewing the Court of Appeals

’ orders denying Petitioner’s applications for

iurists would not debate the District

certificates of appealability (see Doc. 16 ( Reasonable j

Court’s denial of [Durham’s] motion pursuant to Rule 60(b)... on die ground that it lacked

11-719, Doc. 82 (“[Rjeasonable jurists would not debate that (a)

jurisdiction”); Civil Action No.

[Durham]’s

trial counsel acted reasonably in not pursuing an

alibi defense, and (b) foregoing

in light of the weighty evidence against him .”)). As

such a defense did not prejudice [Durham] i

review the Court of Appeals ’ decisions, and as Petitioner has

this Court lacks jurisdiction to

ected hardship would occur without

substantial showing that extreme and unexp

again made no

, 120 (3d Cir. 2014), the Court-enters the following

Rule 60(b) relief, CpxvJHqrn, 757 F.3d 113 *

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Order:

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Case 2:17-cv-00662-CB-RCM

Petitioner’s Second Rule

Document 20 Filed uz/iwia ray* o V-M O

60(b) Motion (Doc. 17) is DISMISSED with prejudice as

, and a certificate of appealability is DENIED . The Magistrate

lacking a jurisdictional basis

18) is adopted as the Opinion of the District Court.

Judge’s Report (Doc.

IT IS SO ORDERED.

February 4, 2019

cc (via ECF email notification):

All counsel of record

cc (via First-Class, U.S. Mail):

GEORGE R. DURHAM

HN-4394

SCI Fayette

Post Office Box 9999

LaBelle, PA 15450-0999

c/r.athv Bissoon—.-------- Cathy Bissoon

United States District Judge