PARKS v. GLUNT et al

Filing 70

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE KELLEY BRISBON HODGE ON 11/15/23. 11/15/23 ENTERED AND COPIES NOT MAILED TO PRO SE AND E-MAILED.(mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PAUL PARKS,

CIVIL ACTION

Petitioner,

v.
STEVEN GLUNT,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADEPHIA, and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

NO. 15-526

MEMORANDUM
HODGE, J.
I.

November 15, 2023

INTRODUCTION
Pro se petitioner Paul Parks (“Petitioner”), a prisoner in state custody serving a life term

for first-degree murder, has filed a second Motion for Relief from Judgment under Fed. R. Civ. P.
60(b)(1). (ECF No. 67.) Petitioner requests this Court vacate the July 27, 2020 judgment (ECF
Nos. 44–45.) in light of the Supreme Court’s decision in Kemp v. United States and review his
prior Rule 60(b)(1) motion (ECF No. 42.) anew and vacate the April 18, 2018 decision. (ECF No.
35.) For the reasons outlined below, this Court denies Petitioner’s motion for relief under Rule
60(b)(1) as untimely and an unauthorized second or successive habeas petition.
II.

BACKGROUND 1
The procedural history and factual background of Petitioner’s conviction is fully set forth

in the Report and Recommendation of Magistrate Judge Elizabeth T. Hey dated March 9, 2018.
(ECF No. 29.) The procedural history of this matter is further detailed in the Opinion of Judge Jan
E. DuBois dated July 27, 2020. (ECF No. 44.)
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The Court adopts the pagination supplied by the CM/ECF docketing system.

This Court denied the Petition for Writ of Habeas Corpus filed by pro se petitioner, Paul
Parks, on April 18, 2018. (ECF No. 35.) Petitioner appealed the denial on April 25, 2018, (ECF
No. 36.), which the Third Circuit denied on December 12, 2018. (ECF No. 41.) Petitioner first
moved for relief under Rule 60(b)(1) on May 9, 2019. (ECF No. 42.) This Court found that
Petitioner’s prior Rule 60(b)(1) motion sought to relitigate a substantive claim challenging his
conviction that was previously denied on the merits; as such, this Court dismissed Petitioner’s
prior motion without prejudice on July 27, 2020 because Petitioner did not seek authorization from
the Third Circuit to file a second and successive habeas petition. (ECF Nos. 44–45.) After
numerous extensions of time for COVID-related reasons, Petitioner appealed this dismissal of his
Rule 60(b) motion, (ECF No. 61.), which the Third Circuit denied on April 16, 2021. (ECF No.
65.)
III.

DISCUSSION
Petitioner now moves for relief under Rule 60(b)(1) for a second time to vacate the July

27, 2020 judgment, (ECF Nos. 44–45), in light of the Supreme Court’s decision in Kemp v. United
States; to review his prior Rule 60(b)(1) motion (ECF No. 42) anew; and to vacate the April 18,
2018 decision. (ECF No. 35.) For the reasons outlined below, this Court denies Petitioner’s
Motion.
A.

Petitioner’s Motion is untimely.

Federal Rule of Civil Procedure 60(b)(1) allows courts to relieve a party from a final
judgment, order, or proceeding for “mistake, inadvertence, surprise, or excusable neglect[.]” Fed.
R. Civ. P. 60(b)(1). Motions filed under Rule 60(b)(1) must be filed “no more than a year after the
entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Rule 60(c)
does not discuss the effect of filling an appeal on this time requirement, but the Third Circuit has
held that “[m]otions under Rule 60(b)(1)–(3) must be brought within one year of the entry of a
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final judgment. An appeal does not toll this time period.” Moolenaar v. Gov’t of Virgin Islands,
822 F.2d 1342, 1346 n.5 (3d Cir. 1987).
This Court dismissed Petitioner’s prior Rule 60(b)(1) motion without prejudice on July 27,
2020 because Petitioner did not seek prior authorization from the Third Circuit to file a second and
successive habeas petition. (ECF Nos. 44–45.) After numerous extensions of time for COVIDrelated reasons, Petitioner appealed this dismissal of his Rule 60(b) motion, (ECF No. 61.), which
the Third Circuit denied on April 16, 2021. (ECF No. 65.) Petitioner’s appeal did not toll the time
period he had to move for relief under Rule 60(b)(1). See Moolenaar, 822 F.2d at 1346 n.5.
Petitioner had one year from this Court’s July 27, 2020 dismissal of his Rule 60(b)(1) motion—
until July 27, 2021—to move for relief under Rule 60(b)(1). Yet, Petitioner did not move for relief
under Rule 60(b)(1) until July 27, 2022. (ECF No. 67.) Thus, even if Petitioner identified a legal
error warranting this Court’s consideration under Rule 60(b)(1), he failed to bring it within the
one-year timeframe. See Fed. R. Civ. P. 60(c)(1). Therefore, Petitioner’s requested relief is time
barred.
B.

Petitioner’s Motion is a second or successive habeas petition.

Even if Petitioner timely filed his Rule 60(b)(1) motion, Petitioner’s present request for
relief until Rule 60(b)(1) is a second or successive habeas petition.
If a prisoner asserts a claim that he or she has already presented in a federal habeas petition
without prior authorization from the Third Circuit, then the claim must be dismissed as a second
or successive habeas petition for which the district court lacks jurisdiction to consider. See 28
U.S.C. § 2244(b)(1). See also Pridgen v. Shannon, 380 F.3d 721, 725 (3d Cir. 2004) (“A
determination that the Rule 60(b) motion was in essence a second or successive habeas petition
means that, under the AEDPA, the District Court [d]oes not have jurisdiction to entertain the

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motion [unless the petitioner is authorized by the court of appeals] to file a successive habeas
petition.”).
Presently before this Court is Petitioner’s request that this Court vacate the July 27, 2020
judgment in light of the Supreme Court’s decision in Kemp v. United States, review his prior Rule
60(b)(1) motion anew, and vacate the April 18, 2018 decision. In his current Motion, Petitioner
does not identify any error by this Court to warrant this requested relief from the July 27, 2020
decision. Instead, Petitioner’s only allegation regarding a difference between his previous Rule
60(b)(1) motion and this current Rule 60(b)(1) motion is the Supreme Court’s recent decision in
Kemp v. United States. (See ECF No. 67 at 4 ¶ 13 (“Petitioner filed under “mistake” of law preKemp and this Honorable Court ruled that it was a second and successive petition[.]”) (emphasis
in original).) In Kemp, the Supreme Court held that “mistake” under Rule 60(b)(1) includes a
judge’s errors of law. Kemp v. United States, 142 S. Ct. 1856, 1860 (2022).
However, this Court did not dismiss Petitioner’s prior Rule 60(b)(1) motion because his
arguments regarding “mistake” were inapplicable. Rather, this Court dismissed Petitioner’s prior
motion because district courts lack jurisdiction to decide second or successive habeas petitions
unless Petitioner obtains an order from the appropriate court of appeals authorizing the district
court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). See also Pridgen, 380 F.3d at 725.
This Court found that Petitioner’s prior motion “attack[ed] the federal court’s previous resolution
of [his] claim on the merits,” which is considered a second and successive habeas petition. (ECF
No. 44 at 3–4 (quoting Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)).)
Here, instead of identifying an error of law in the July 27, 2020 decision, Petitioner’s
Motion reiterates his arguments from his prior Rule 60(b)(1) motion that this Court did not
consider the reliability of the unredacted statement of a witness, Malik Mustafa, and did not
distinguish United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005) from the facts of his case when
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denying Petitioner’s habeas corpus petition, which was a “mistake.” (See ECF No. 67 at 3–4 ¶¶ 4–
11.) Petitioner’s Motion is again a direct challenge to the substance of the April 18, 2018 decision
denying Petitioner’s habeas petition. As such, the same issue remains that Petitioner’s Rule
60(b)(1) motion is an unauthorized second or successive petition because Petitioner did not seek
authorization from the Third Circuit pursuant to 28 U.S.C § 2244(b)(3)(a). This Court’s conclusion
that Petitioner’s current motion is a second or successive habeas petition is bolstered by
Petitioner’s requested relief mirroring the requested relief in his prior motion. (Compare ECF No.
67 at 4 (“[R]eview [prior motion] anew and vacate the April 18, 2018 judgment”), with ECF No.
42 at 5 ¶ 29 (“This matter should be reopened and the judgment entered on April 18, 2018, should
be vacated due to mistake.”).)
To the extent that Petitioner’s current Rule 60(b)(1) motion argues that this Court’s holding
that his prior Rule 60(b)(1) motion was a second or successive habeas petition was a mistake, this
Court does not agree. For the reasons articulated above, Petitioner’s prior Rule 60(b)(1) motion
was a clear and direct challenge to the substance of this Court’s April 18, 2018 decision for which
this Court lacked jurisdiction to review without authorization from the Third Circuit.
IV.

CONCLUSION
This Court denies Petitioner’s motion for relief under Rule 60(b)(1) as untimely and an

impermissible second or successive habeas petition. An appropriate order follows.

BY THE COURT:
/s/ Hon. Kelley B. Hodge
HODGE, KELLEY B., J.

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