Neely v. Garmen et al

Filing 35

ORDER denying ptnr's motion 33 to vacate judgment. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 12/17/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN JAMES NEELY,
Petitioner
v.
MARK GARMEN and PA STATE
ATTORNEY GENERAL,
Respondents

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CIVIL ACTION NO. 3:16-CV-1565
(Chief Judge Conner)

ORDER
AND NOW, this 17th day of December, 2019, upon consideration of the
motion (Doc. 33) to vacate judgment in part pursuant to Federal Rule of Civil
Procedure 60(b)(1) filed by petitioner Kevin James Neely, asking the court to
partially vacate the judgment entered on June 14, 2019, (see Doc. 26), in which the
court denied Neely’s application for a writ of habeas corpus under 28 U.S.C. § 2254
and a certificate of appealability, and the court observing that a movant seeking to
vacate judgment under Rule 60(b)(1) must show “mistake, inadvertence, surprise,
or excusable neglect,” FED. R. CIV. P. 60(b)(1), and that Neely’s instant Rule 60(b)(1)
motion claims that this court made a “mistake” in our decision on his habeas
petition, arguing that the court overlooked the fact that before Neely decided to go
to trial he should have been explicitly “put on notice that he was facing a maximum
penalty of 40 years” rather than simply being informed that he was facing
prosecution for attempted murder causing serious bodily injury (which offense
statutorily carries a maximum penalty of 40 years, see 18 PA. CONS. STAT. § 1102(c)),

(see Doc. 33 ¶¶ 15, 17, 18, 20), and the court noting that Neely has not cited, 1 nor has
this court found, authority that requires a criminal defendant to be informed of the
maximum sentence—in terms of months or years—for each specific count of a
charging document prior to proceeding to trial thereon, and the court concluding
that there was no “mistake” in our prior judgment, it is hereby ORDERED that
Neely’s motion (Doc. 33) to vacate judgment pursuant to Rule 60(b)(1) is DENIED.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania

1

The single case Neely cites, Commonwealth v. Barnes, 167 A.3d 110 (Pa.
Super. Ct. 2017), does not support his argument. That case simply holds that a
defendant who is sentenced above the 20-year statutory maximum for attempted
murder must have been put on notice that he was being prosecuted for attempted
murder causing serious bodily injury. See Barnes, 167 A.3d at 116-19. The latter
offense carries a 40-year, rather than 20-year, maximum sentence, and whether
“serious bodily injury” was caused must be admitted or found by a jury. See id.
Barnes does not hold that, prior to proceeding to trial, a criminal defendant must be
informed of the maximum potential sentence length for each charged offense.