FERGUSON v. DIGUGLIELMO et al

Filing 55

MEMORANDUM ORDER dismissing 49 Motion to Vacate; adopting Report and Recommendations re 52 Report and Recommendations. The Clerk of Court shall mark this case closed. Signed by Judge David S. Cercone on 10/21/2019. (kly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTONIO D. FERGUSON,
Petitioner,
v.
SUPERINTENDENT DAVID
DIGUGLIELMO, ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA and DISTRICT
ATTORNEY OF THE COUNTY OF
ERIE, BRADLEY H. FOULK,
Respondents.

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Civil Action No. 09 – 72E
District Judge David S. Cercone
Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER
Pending before the Court is a Motion for Relief from Judgment filed by Petitioner on July
30, 2019. (ECF No. 49.) Petitioner seeks relief pursuant to Federal Rule of Civil Procedure
60(b)(6) and requests that this Court vacate its Order dated August 5, 2010, which denied his
Petition for Writ of Habeas Corpus, and either grant him habeas relief or afford him an
evidentiary hearing. The Motion was referred to United States Magistrate Judge Lisa Pupo
Lenihan pursuant to the Magistrate Judge’s Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D
of the Local Rules of Court.
On September 23, 2019, Judge Lenihan issued a Report and Recommendation (“R&R”),
which recommended that Petitioner’s Motion be dismissed for lack of jurisdiction. (ECF No.
52.) Specifically, she concluded that Petitioner’s Motion was really an impermissible second or
successive habeas petition that he had not received permission to file. The R&R was served on
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the parties and Petitioner filed timely objections that were docketed October 8, 2019. (ECF No.
54.) However, after careful review, the Court finds that Petitioner’s objections do not undermine
the R&R’s recommended disposition. Accordingly, the Court enters the following Order:
AND NOW, this 21st day of October, 2019;
IT IS HEREBY ORDERED that the Motion for Relief from Judgment (ECF No. 49) is
dismissed for lack of jurisdiction.
IT IS FURTHER ORDERED that the R&R (ECF No. 52) is adopted as the Opinion of
the Court.
IT IS FURTHER ORDERED that the Clerk of Court mark this case closed.
AND IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
By the Court:
s/ David S. Cercone______
David S. Cercone
United States District Judge
Cc:

Antonio D. Ferguson
GB-8731
SCI Phoenix
1200 Mokychic Drive
Collegeville, PA 19426
Counsel for Respondents
(Via CM/ECF electronic mail)

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