WHITAKER v. GILLIS, et al

Filing 28

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 6/28/18. 6/29/18 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TRACY WHITAKER
v.
FRANK D. GILLIS, THE DISTRICT
ATTORNEY OF THE COUNTY
OF DELAWARE and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA

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CIVIL ACTION

NO. 99-4578

MEMORANDUM OPINION
Savage, J.

June 28, 2018

Petitioner Tracy Whitaker, a state prisoner convicted of murdering a nine-month-old
child, has previously filed nine petitions under the Post Conviction Relief Act, appeals from
the denial of them in the state court, three federal habeas petitions1, and four unsuccessful
requests of the Third Circuit for authorization to file second and successive petitions.
Now, twenty-three years after he was convicted, he has filed a motion under Rule 60(b).
For the first time, he contends that his conviction was void because the state court was
without jurisdiction.

He specifically argues that the charging document, the criminal

Information, charged crimes as defined in the former Pennsylvania Penal Code rather than
the Crimes Code. To overcome the habeas time bar, he argues that a motion under Rule
60(b)(4) has no time limit because the judgment of sentence was void.
Petitioner’s claim is without merit. The state court had subject matter jurisdiction.
The mere reference to the Penal Code rather than the Crimes Code does not alter the
result. Petitioner cannot claim that he was not on notice of what the charges were. The
charging document identified the date of the offenses, the victim, and the elements of the
1

Whitaker v. Delaware Co. District Attorney, et al., C.A. No. 12-4924; Whitaker v. Varano, et al., C.A. No.
10-157; and Whitaker v. Gillis, et al., et al., C.A. No. 99-4578.

charged crimes. It gave sufficient notice of the charges so petitioner could defend them.
Because petitioner has already filed a habeas petition which was denied, he must
overcome the bar against filing a “second or successive petition.” Thus, we must
determine whether his present motion, despite its Rule 60(b) label, is a second or
successive petition.
Under AEDPA’s “second or successive petition” rule, a prisoner is not permitted to
file a petition seeking habeas corpus relief attacking a judgment of conviction and/or
sentence after his previously filed habeas petition based on the same conviction was
decided on the merits. 28 U.S.C. § 2244(b)(1).2
When a motion is filed in a habeas case under a Rule 60(b) label, the district court
must initially determine whether the motion is actually a “second or successive” habeas
petition within the meaning of § 2244(b).

Gonzalez, 545 U.S. at 530; Benchoff v.

Colleran, 404 F.3d 812, 817 (3d Cir. 2005). If it is not a “second or successive” petition,
no authorization from the court of appeals is required. Thus, we must first determine
whether petitioner’s motion is a true Rule 60(b) motion.
What is a “second or successive” habeas petition is not defined by AEDPA. The
Supreme Court has interpreted it as a filing, whether labeled a habeas petition or a Rule
60(b) motion, that presents a claim on the merits attacking the same conviction and/or
sentence that was challenged in a previous petition. Gonzalez, 545 U.S. at 532, 538. A
motion for relief from judgment that neither asserts new claims nor reasserts claims of
error in the state court, but challenges only the federal court’s failure to reach the merits of

2

Section 2244(b)(1) states that a “claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.”

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a prior habeas petition, is not a second or successive habeas petition. Id. at 538; Pridgen
v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004).
Petitioner’s motion does not attack the procedural integrity of the federal court’s
habeas proceedings. Instead, it raises a new claim. Thus, it is a second or successive
habeas petition.
If the petitioner makes a new claim in a second or successive petition, he must first
receive permission to file the petition from the court of appeals. Absent such authorization,
the district court lacks jurisdiction over the matter and is not permitted to consider the
merits of the subsequent petition. Id. § 2244(b)(3)(A); Gonzalez, 545 U.S. at 530;
Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002). Petitioner has not done so.
Even if the petitioner’s motion were a proper Rule 60 motion, it is untimely. The
charging document, which the petitioner contends was insufficient, was known to him
when he was charged and tried. Before his trial, during trial, and in every one of his
multiple post-conviction filings, petitioner did not raise the issue he now presents.
Petitioner’s motion is untimely because it was not brought within a reasonable time.
There is no specific time limit for filing a motion pursuant to Rule 60(b)(4). But, it must be
filed within a “reasonable time.” Fed. R. Civ. P. 60(c)(1); Moolenaar v. Gov’t of Virgin
Islands, 822 F.2d 1342, 1346 (3d Cir. 1987) (citing Fed. R. Civ. P. 60(b)).
Petitioner provides no reason, much less a compelling one, for raising his new
claim twenty-three years after his conviction and years after his petition was denied. Such
a lengthy period of time is not reasonable for purposes of a Rule 60(b) motion. See
Moolenaar, 822 F.2d at 1348 (finding Rule 60(b) motion brought almost two years after
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order at issue was untimely); United States v. Real Property Located at 1323 South 10th
Street, Philadelphia, PA, No. 91-5848, 1998 WL 470161, at *2 (E.D. Pa. Aug. 11, 1998)
(concluding that four-year delay between order and Rule 60(b) motion was
unreasonable.).
Petitioner’s motion is completely silent on the reason for this delay. Nor are we are
able to discern any facts to support an inference that the delay was justified. Hence, we
conclude that his Rule 60(b) motion is untimely.

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