WHITAKER v. GILLIS, et al

Filing 37

MEMORANDUM; ETC.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 7/13/21. 7/14/21 ENTERED AND NOT MAILED TO PRO SE, E-MAILED.(JL )

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
Savage, J.

July 13, 2021

Petitioner Tracy Whitaker, a state prisoner serving a life sentence for murder, has
filed a motion under Fed. R. Civ. P. 60(b)(3) and (4).

He claims that the original

Pennsylvania Constitution was never properly ratified.

He asserts that his current

“request for relief is from a patent usurpation of power, fraud and a judgment that is void
from its inception.”
Whitaker has previously filed nine petitions under the Post-Conviction Relief Act
and appeals from each of them, four federal habeas corpus petitions 1 , and four
unsuccessful requests for authorization from the Third Circuit to file second and
successive petitions, and two Rule 60(b) motions.
His present motion and contention is not new. On June 28, 2018, finding that his
Rule 60(b) motion was a successive petition for a writ of habeas corpus, we transferred
it to the Third Circuit Court of Appeals. Deeming the motion as an application to file a

1

Whitaker v. McGinley, C.A. No. 18-5640; Whitaker v. Delaware Co. District Attorney, et al., C.A. No. 124924; Whitaker v. Varano, et al., C.A. No. 10-157; and Whitaker v. Gillis, et al., et al., C.A. No. 99-4578.

second or successive habeas petition under 28 U.S.C. § 2254, the Third Circuit denied it.
What Whitaker alleges in his present motion is no different. As he did in his
previous Rule 60(b) motion, he contends the judgment of conviction is void. He adds
that the original Pennsylvania Constitution was not properly ratified, rendering his
conviction void. This is actually no different than his earlier argument that his conviction
was void. Just as that contention was frivolous, so is his current iteration.
Even if petitioner’s claim had merit and was new, we cannot consider it. When a
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. 28 U.S.C. § 2244(b)(3)(A); Gonzalez v. Crosby, 545 U.S.
524 (2005).
Rule 60 may not be used to relitigate the movant’s underlying conviction after his
habeas petition attacking the same conviction has been denied. He cannot circumvent
the “second or successive” petition bar by presenting new claims for relief couched in the
language of a Rule 60(b) motion. Such a maneuver is an impermissible effort to bypass
AEDPA’s requirement that new claims be dismissed unless they are based on “newly
discovered facts” or “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” Gonzales v.
Crosby, 545 U.S. 524, 531-32 (2005) (citing 28 U.S.C. § 2244(b)(2)). Whitaker’s motion
does not fall within any exception to the second or successive bar. Therefore, we shall
deny it.