SHEARER v. MOORE SMEAL et al

Filing 51

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NORMA L. SHAPIRO ON 7/21/15. 7/22/15 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TIMOTHY SHEARER
v.
SHIRLEY R. MOORE SMEAL; THE DISTRICT
ATTORNEY OF THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
NORMA L. SHAPIRO, J.

:
:
:
:
:
:
:
:

CIVIL ACTION

NO. 11-5315

JULY 21, 2015
MEMORANDUM

Before the court are petitioner’s “Independent Action Rule 60(d)(1)-(3)” motion, respondent's
“Response to Motion for Extraordinary Relief,” and petitioner's “Reply to Respondent’s Reply to
Independent Action.” Petitioner’s “Independent Action Rule 60(d)(1)-(3)” motion (paper no. 43)
will be dismissed because it is a successive habeas petition and the Court of Appeals has not issued
an order authorizing the district court to consider the petition.

I.

BACKGROUND

Terrance Adams (“Adams”) was fatally shot on the 5100 block of Arch Street in Philadelphia.
Yvette Gray (“Gray”) was shot in her right side but survived. Petitioner was arrested for shooting
Adams and Gray.
A state court jury convicted petitioner of third-degree murder, a firearms violation, possession
of an instrument of a crime, and aggravated assault. Petitioner was sentenced to 17.5 to 35 years in
prison.
Petitioner, in his direct appeal, alleged ineffective assistance of counsel for failing to (i)
object to a witness’s pretrial identification of petitioner and (ii) call an alibi witness. The Superior
Court deferred the ineffectiveness claims for collateral review and affirmed the conviction. The
Pennsylvania Supreme Court denied petitioner’s petition for allowance of an appeal.
Petitioner filed a Post Conviction Relief Act (“PCRA”) petition alleging ineffective
assistance of counsel for (i) advising petitioner not to testify and failing to (ii) object to a witness’s
pretrial identification of petitioner and (iii) call an alibi witness. The PCRA court dismissed the
PCRA petition as meritless. The Superior Court affirmed the PCRA court’s dismissal and rejected
petitioner’s allegations of ineffective assistance of PCRA counsel. The Pennsylvania Supreme Court

denied petitioner’s petition for allowance of an appeal.
Petitioner timely filed a habeas corpus petition in the district court alleging ineffective
assistance of trial counsel for failing to: (i) object to a witness’s pretrial identification of petitioner in
a photographic array; (ii) object to jury instructions that inadequately distinguished first-degree
murder from third-degree murder; (iii) call an alibi witness; and (iv) object to the sufficiency of the
evidence on the aggravated assault charge. Petitioner requested an evidentiary hearing.
On February 27, 2013, the court approved and adopted the magistrate judge’s report and
recommendation denying petitioner’s habeas petition and request for an evidentiary hearing. The
court denied petitioner’s motion for reconsideration of the February 27, 2013, order. On July 3,
2013, the court denied petitioner's motion under Federal Rule of Civil Procedure 60(b)(3) for relief
from the February 27, 2013, order. The court denied petitioner's motion for reconsideration of the
July 3, 2013, order.
The Court of Appeals denied petitioner’s applications for certificates of appealability to
appeal the court’s February 27, 2013, and July 3, 2013, orders, and denied petitioner’s petition for
rehearing en banc. Shearer v. Smeal-Moore, No. 13-2183 (3d Cir. Oct. 31, 2013); Shearer v.
Smeal-Moore, No. 13-3343 (3d Cir. Dec. 3, 2013). The U.S. Supreme Court denied petitioner’s
petition for writ of certiorari.
Petitioner’s second PCRA petition alleging that his conviction was unlawfully obtained
through the use of perjured testimony is pending before the Court of Common Pleas, Philadelphia
County.
Petitioner moves under Federal Rule of Civil Procedure 60(d)(1)-(3) for relief from the
court’s February 27, 2013, order denying his habeas petition. Petitioner alleges: (i) the prosecution
presented testimony from a witness who committed perjury; (ii) petitioner is “actually innocent” in
light of the perjury committed by the witness; and (iii) ineffective assistance of trial counsel because
trial counsel advised petitioner not to testify. The Philadelphia County District Attorney’s Office
argues the court lacks jurisdiction over petitioner’s motion because it is a successive habeas petition
and petitioner has not obtained Court of Appeals permission to file a successive habeas petition.

II.
A.

DISCUSSION

Successive Habeas Corpus Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) restricts the ability of

federal courts to award relief to a state prisoner who files a successive habeas corpus petition. Tyler

v. Cain, 533 U.S. 656, 661 (2001). Under AEDPA, a claim presented in a second or successive
habeas petition under 28 U.S.C. § 2254 must be dismissed if it was adjudicated in a previous petition.
28 U.S.C. § 2244(3)(A). Any claim that has not already been adjudicated must be dismissed unless it
relies on a new and retroactive rule of constitutional law or new facts showing a high probability of
actual innocence. 28 U.S.C. § 2244(b)(2); Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). Before the
district court may consider a successive habeas petition, the Court of Appeals must issue an order
authorizing the district court to consider the petition. 28 U.S.C. § 2244(3)(A).
A motion to reopen judgment of a habeas corpus petition is a successive habeas petition
under AEDPA when the motion asserts a claim for relief from a state court's judgment of conviction.
Gonzalez, 545 U.S. at 531-32. A motion asserts such a claim when it (i) adds a new ground for relief
from the state court judgment of conviction or (ii) challenges the district court's previous resolution
of a claim on the merits. Id. at 532. A Rule 60 motion correctly asserting a defect in the integrity of
the federal habeas proceedings is actionable and is not a successive habeas petition. Id.
Petitioner’s allegation of fraud in the state court calls for the district court to reconsider
witness credibility determinations. Petitioner does not assert a defect in the integrity of the denial of
his habeas petition. Petitioner adds grounds for relief from the state court judgment not raised in his
previous habeas petition. Petitioner asserts claims for relief from the state court's judgment of
conviction; petitioner’s “Independent Action Rule 60(d)(1)-(3)” motion is a successive habeas
petition.
The Court of Appeals has not ordered that the court may consider petitioner’s successive
habeas petition. Petitioner’s “Independent Action Rule 60(d)(1)-(3)” motion will be dismissed.
B.

Certificate of Appealability
The court may grant a certificate of appealability where a petitioner has made a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner filed a successive
habeas petition. A certificate of appealability will not be granted by this court.

III.

CONCLUSION

Petitioner’s “Independent Action Rule 60(d)(1)-(3)” motion is dismissed as a successive
habeas petition.