HILL v. PATRICK et al

Filing 37

ORDER-MEMORANDUM, THE "MOTION FOR HEARING UNDER 28 U.S.C. RULE 60(b)" FILED BY PETITIONER WENDELL HILL IS DENIED, ETC.. SIGNED BY HONORABLE EDMUND V. LUDWIG ON 2/5/09. 2/5/09 ENTERED AND COPIES MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA W E N D E L L HILL v. W IL L IA M PATRICK, et al. : : : : : C IV IL ACTION

N o . 05-5261

O R D E R -M E M O R A N D U M A N D NOW, this 5 th day of February, 2009, the "Motion for Hearing Under 28 U.S.C. R u le 60(b)" (docket no. 34) filed by petitioner Wendell Hill is denied. F o llo w in g two jury trials in Pennsylvania state court (the first resulted in a mistrial), p e t i t i o n e r Wendell Hill, on April 3, 1984, was convicted of conspiracy and robbery. On N o v e m b e r 21, 1984, he was sentenced to 10 to 20 years incarceration, to be served c o n se c u tiv e ly to a life sentence for an unrelated murder. Commonwealth v. Hill, No. 3107 E D A 2003, at 1-4 (Pa. Super., May 3, 2004). On October 6, 2005, after an unsuccessful d i re c t appeal and protracted proceedings before the PCRA court, petitioner filed a pro se p etitio n for writ of habeas corpus in this court, raising 15 claims. Over petitioner's

o b jectio n s, the Report and Recommendations of Magistrate Judge Peter B. Scuderi were a p p ro v e d and adopted, and the claims denied in two separate orders, dated June 8, 2006 and D e c em b e r 21, 2007.1
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The first order ruled on petitioner's claims numbered 1 through 4, which were listed in the appropriate section of the "Form for Use in Applications for Habeas Corpus Under 28 U.S.C. § 2254." Claims numbered 5 through 15 were listed on the backs of pages 9-12 of the form, and inadvertently were not considered in the initial Report and Recommendation adopted by the June 8, 2006 order. Petitioner appealed the June 8, 2006 order, and the Court of Appeals remanded for consideration of claims 5 through 15. The December 21, 2007 order adopts the Report and Recommendation regarding those claims.

Following entry of the latter order, petitioner appealed. On July 7, 2008, the Court o f Appeals denied petitioner's appeal as follows: T h e request for a certificate of appealability is denied. See Slack v. McDaniel, 5 1 9 U.S. 472, 484 (2000). Appellant has failed to demonstrate that trial or appellate counsel's performance was constitutionally deficient. See Strickland v . Washington, 466 U.S. 668, 687-88 (1984). Furthermore, appellant's c o n v ic tio n is supported by sufficient evidence. See Sullivan v. Cuyler, 723 F .2 d 1077, 1083-84 (3d Cir. 1983). Appellant has also failed to show that the tria l court's jury instructions "so infected the trial that the resulting conviction v io la te d due process." Jacobs v. Horn, 395 F.3d 92, 111 (3d Cir. 2005) (qu o tatio n and citation omitted). Finally, Hill has failed to show that the jurors in his trial were not impartial. See Irvin v. Dowd, 366 U.S. 717, 723 (1961). H ill v. Patrick, July 7, 2008 Order, CA No. 08-1057. On August 26, 2008, petitioner filed this motion, purportedly under Fed. R. Civ. P. 6 0 (b ), requesting a hearing "to redress the issues set forth in his Habeas Corpus Petition that w e re still not adjudicated as was required by the United States Court of Appeals and which v io la te d petitioner's due process right to meaningful appellate review." Petitioner's motion, at 1 (docket no. 34). T h e gravamen of petitioner's motion is that this court incorrectly found some of his c laim s to be procedurally defaulted, and, therefore, did not adjudicate them, and incorrectly ru le d on his other claims. The motion challenges the denial of the habeas petition on the m e rits. However, the Court of Appeals reviewed the decision of this court

a n d found the denial of petitioner's claims to be supported by the record. Further review of o f the decision is not warranted, and petitioner's request for a hearing is denied.2

B Y THE COURT:

/s/ Edmund V. Ludwig_______________________ E d m u n d V. Ludwig, J.

It also appears that, despite the Rule 60(b) label, the motion is actually one to alter or amend the judgment under Rule 59: "After a non-jury trial, the court may, on motion for new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment." Fed. R. Civ. P. 59(a)(2). However, motions under Rule 59 are subject to strict filing deadlines: "A motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment." Fed. R. Civ. P. 59(e). To the extent that the hearing requested by petitioner is actually a new trial, the request, filed more than seven months after the order denying the habeas petition, is out of time and must be denied.

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