FRAZIER v. DIGUGLIELMO

Filing 56

ORDER dismissing 55 Motion Relief from Judgment for lack of subject matter jurisdiction, and DENYING a certificate of appealability, as more fully stated in the Order. Signed by Judge Cathy Bissoon on 4/17/2013. A copy of this Order was mailed to Petitioner at his address of record. (dad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON MICHAEL FRAZIER,
Petitioner,
v.
DAVID DIGUGLIELMO, et al.,
Respondents.

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Civil Action No. 08-1585
Judge Cathy Bissoon

ORDER
Before this Court is Petitioner Jason Michael Frazier’s (“Petitioner”) Motion for Relief
from Judgment, which he purportedly brings pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. (Doc. 55). Because this motion attacks a determination of Petitioner’s habeas
petition made on the merits, it properly is interpreted as a second or successive habeas petition,
over which this Court lacks subject matter jurisdiction.
Petitioner Jason Michael Frazier (“Petitioner”) filed his initial petition for writ of habeas
corpus on November 17, 2008. (Doc. 1). This Court ultimately denied relief on
December 27, 2011. (Docs. 45-47). Petitioner appealed, and a certificate of appealability was
denied by the Court of Appeals for the Third Circuit on August 8, 2012. See Frazier v.
Diguglielmo, No. 12-1107, slip op. (3d Cir. Aug. 31, 2012). En banc review was denied by the
Court of Appeals on September 9, 2012. Finally, certiorari was denied on April 1, 2013.
Frazier v. Wenerowicz, --- U.S. ----, --- S.Ct. ----, No. 12-8759, 2013 WL 1285375, at *1 (U.S.
Apr. 1, 2013).
In his latest filing, Plaintiff moves this Court to reopen his case pursuant to Rule 60(b) of
the Federal Rules of Civil Procedure. Specifically, he argues that this Court denied him due
process and equal protection of law when it:

misconstrued and misstated the factual record regarding
Petitioner’s Probable Cause claim, ruled on his Petition while it
lacked jurisdiction due to Petitioner’s pending state appeal which
made said judgment void, and refused to address and adjudicate
Petitioner’s due process claim regarding the state courts’ failure to
afford him and [sic] evidentiary hearing for his newly discovered
witnesses on direct appeal.
(Doc. 55 at 2). He also argues that, because he raises the instant arguments pursuant to Rule
60(b), he is not subject to AEDPA’s rules regarding second or successive habeas petitions. Id.
As an initial matter, it is noteworthy that Petitioner’s substantive arguments largely track
some of those that he raised at the Court of Appeals in his motion for certificate appealability
and petition for en banc rehearing. See generally Diguglielmo, No 12-1107 (Docs. 3110977258
and 3111004940). These arguments were rejected by that court, and this Court has no authority
to second guess the Court of Appeals.1
Second, the order of this Court denying habeas relief explicitly was made on the merits.
See (Doc. 45 at 7-8). While Petitioner talismanically invokes the “integrity of [his] federal
habeas proceeding” in his motion (Doc. 55 at 6), the substance of his underlying arguments
clearly is directed at the ultimate determination of the merits of the claims in his petition. See
generally id. As such, Petitioner’s attempt to attack that determination – even in the guise of a

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Because his arguments were presented to, and rejected by, the Court of Appeals, it strains
credulity to believe that Petitioner was unaware of the lack of merit of his instant motion.
Accordingly, Petitioner is cautioned that, by presenting this Court with motions that he knows to
be frivolous, he exposes himself to the possibility of sanctions pursuant to Rule 11 of the Federal
Rules of Civil Procedure, which apply to pro se litigants as well as to attorneys. Rader v. ING
Bank, Nos. 09-340, 09-544, 09-781, 2010 WL 1403962, at *6 (D. Del. Apr. 07, 2010) (citing
Thomas v. Connecticut Gen. Life Ins. Co., No. 02-MC-136, 2003 WL 22953189, at *3 (D. Del.
Dec. 12, 2003)).
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Rule 60(b) motion – is effectively a second or successive habeas petition, and must be filed with
the Court of Appeals. See Gonzalez v. Crosby, 545 U.S. 524, 532 and 532 n.4 (2005) (holding
that a Rule 60(b) motion attacking a habeas determination that was made on the merits
effectively raises a new “claim,” and thus qualifies as a second or successive petition); see also
28 U.S.C. § 2253(c).
Finally, a certificate of appealability will be denied, as jurists of reason could not debate
that that the instant motion is a second or successive petition. See, e.g., Slack v. McDaniel, 529
U.S. 473, 484 (2000).

AND NOW, this 17th day of April, 2013,
IT IS HEREBY ORDERED that Petitioner’s Motion for Relief from Judgment (Doc. 55)
is DISMISSED for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

Dated: April 17, 2013

BY THE COURT:
s/Cathy Bissoon
CATHY BISSOON
UNITED STATES DISTRICT JUDGE

cc:
JASON MICHAEL FRAZIER
EM7522
165 SCI Lane
Greensburg, PA 15601
Counsel of record
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