Foster v. Varano et al

Filing 40

ORDER denying ptnr's motion 38 pursuant to FRCP 60(b)(1)&(b)(3) as 2nd or successive habeas petition under 28 USC 2254, denying as moot ptnr's motion 39 for leave to proceed IFP & noting no certificate of appealability shall issue. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 3/24/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RODMAN FOSTER,
Petitioner
v.
DAVID A. VARANO, et al.
Respondents

:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:09-CV-1691
(Chief Judge Conner)

ORDER
AND NOW, this 24th day of March, 2015, upon consideration of the motion
(Doc. 38) for relief from judgment under Federal Rules of Civil Procedure 60(d)(1)
and 60(d)(3) filed by pro se petitioner Rodmen R. Foster (“petitioner”), wherein
petitioner moves the court to set aside its order (Doc. 31) of June 28, 2010, denying
his petition (Doc. 1) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and
specifically asserts that the denial of his habeas corpus petition was “procured by
means of fraudulent documentation” and that, as a result, his request “is not the
fundamental equivalent of a second or successive habeas petition” depriving the
court of jurisdiction over his claim, (see Doc. 38 at 1), but the court noting that
petitioner’s argument in support of his motion, which he maintains is not a second
or successive petition, is identical to the arguments raised before and rejected by
the Third Circuit Court of Appeals in its denial of petitioner’s application pursuant
to 28 U.S.C. § 2244 for leave to file a second or successive habeas corpus petition,
see In re Rodmen Foster, No. 14-4706 (3d Cir. Jan. 30, 2015), and that petitioner’s
motion challenges not the procedures surrounding the disposition of his initial

habeas petition but rather the circumstances underlying his state sentence, see
Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004) (“[W]hen the Rule 60(b) motion
seeks to collaterally attack the petitioner’s underlying conviction, the motion should
be treated as a successive habeas petition.”); see also Mabry v. United States, No.
4:04-CR-121, 2012 U.S. Dist. LEXIS 123509, at *3 (M.D. Pa. Aug. 30, 2012) (“[A] Rule
60(d) motion is subject to the same successive petition restrictions that apply to
Rule 60(b) motions.”) (citing Sharpe v. United States, No. 02-CR-771, 2010 WL
2572636, at *2 (E.D. Pa. June 22, 2010); United States v. Franklin, No. 99-CR-238,
2008 WL 4792168, at *3 (E.D. Pa. Oct. 31, 2008)), and the court concluding that
petitioner’s instant motion is an unauthorized second or successive motion for
habeas relief, see 28 U.S.C. § 2244(a), and that it must be dismissed for lack of
jurisdiction, see Robinson v. Johnson, 313 F.3d 128, 140 (3d Cir. 2002) (“When a
second or successive habeas petition is erroneously filed in a district court without
the permission of a court of appeals, the district court’s only option is to dismiss the
petition or transfer it to the court of appeals.”), it is hereby ORDERED that:
1.

Petitioner’s motion (Doc. 38) pursuant to Federal Rules of Civil
Procedure 60(b)(1) and (b)(3) is deemed to be a second or successive
habeas petition under 28 U.S.C. § 2254 and is DENIED.

2.

Petitioner’s motion (Doc. 39) for leave to proceed in forma pauperis is
DENIED as moot.

3.

No certificate of appealability shall issue. See R. GOVERNING SECTION
2254 CASES R. 11.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania