Anthony Mina v. Thomas Hogan, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, SHWARTZ and GREENBERG, Circuit Judges. Total Pages: 2. DLD-338

Case: 15-1642

Document: 003112085566

Page: 1

DLD-338

Date Filed: 09/29/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1642
___________
ANTHONY STOCKER MINA,
Appellant
v.
DA THOMAS HOGAN; DAWSON R. MUTH;
GOLDBERG MEANIX MUTH & MCCALLIN LAW FIRM;
JUDGE THOMAS G. GAVIN
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. 2-14-mc-00221)
District Court Judge: Honorable Edward G. Smith
____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 17, 2015
Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges
(Opinion filed: September 29, 2015)
_________
OPINION*
_________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 15-1642

Document: 003112085566

Page: 2

Date Filed: 09/29/2015

Anthony Stocker Mina sought permission to file in forma pauperis a motion under
Federal Rule of Civil Procedure 60(b) to overturn a 2008 state-court conviction for
simple assault. The District Court granted Mina’s motion to proceed in forma pauperis
and then sua sponte denied the Rule 60 motion and dismissed his action.1 The District
Court advised Mina that, to challenge his state-court conviction, he must seek habeas
corpus relief via a properly filed petition pursuant to 28 U.S.C. § 2254. Mina appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s dismissal order. See Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000). We may summarily affirm if the appeal presents no substantial questions.
See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
The District Court properly dismissed Mina’s Rule 60(b) motion seeking to
overturn his state-court conviction. As the District Court advised Mina, he cannot
challenge his state-court conviction in federal court under Rule 60(b). Instead, any
attempt to overturn his state-court conviction must be brought, if at all, in a habeas corpus
petition. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that sole federal
remedy for a state prisoner contesting fact or duration of confinement is a writ of habeas
corpus pursuant to 28 U.S.C. § 2254).
Accordingly, we will summarily affirm the judgment of the District Court.

The District Court did so “without prejudice to him filing a habeas corpus petition.”
The District Court also directed the clerk to provide Mina with a current § 2254 form and
an application to proceed in forma pauperis.
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