JERRY-EL v. LUTHER

Filing 20

MEMORANDUM OPINION and ORDER denying 7 Motion for Relief of Judgment; and adopting Report and Recommendations re 14 Report and Recommendations, as explained therein.. Signed by Chief Judge Joy Flowers Conti on 11/21/17. (mh)

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

BERNARD CARTER JERRY-EL,
Petitioner,
v.
JAMEY LUTHER and BEAVER
COUNTY DISTRICT ATTORNEY’S
OFFICE,

Misc. No. 16-404
Civil No. 82-2357

Respondents.

MEMORANDUM OPINION
Conti, Chief District Judge.
I.

Introduction
Pending before the court are objections (ECF Nos. 15, 18) filed pro se by Bernard Carter

Jerry-El (“Jerry-El”) to the Report and Recommendation (“R&R”) of the magistrate judge dated
March 31, 2017 (ECF No. 14). In the R&R, the magistrate judge recommended that Jerry-El’s
amended Rule 60(b)(6) motion (ECF No. 7) be treated as a successive § 2254 habeas corpus
petition and be dismissed for lack of jurisdiction. On August 11, 2017, the magistrate judge
granted Jerry-El’s motion to amend/correct his original objections to the R&R and to construe
that filing as additional objections. The Beaver County District Attorney’s Office
(“Respondents”) filed a response in opposition to Jerry-El’s original Rule 60 motion (ECF No.
12), but has not responded to Jerry-El’s objections to the R&R. The matter is now ripe for
disposition.1

1

The court considered the decision in Gribble v. Folino, No. 09-2091, 2017 WL 3727107 (E.D.
Pa. Aug. 30, 2017), submitted by Jerry-El in a letter dated October 26, 2017. Gribble is
nonbinding and distinguishable. The limited exception excusing procedural default of

II.

Factual and Procedural Background
The entire factual and procedural history is tortuous and will not be recounted in full. On

February 13, 1977, at approximately 3:00 p.m., Ed Bulat, the assistant manager of the Food City
Supermarket in Aliquippa, PA, was shot to death.

Janet Mencher (“Mencher”), a cashier,

testified that she saw two African-American males run through her checkout counter, and that
Jerry-El turned and shot Bulat as he went to confront them. Mencher also testified that she had
seen Jerry-El and a woman at the supermarket that morning; that Jerry-El was wearing a gun at
the time; and that she saw the same woman outside the store about twenty minutes after the
shooting. Mencher described Jerry-El as wearing a green leather waistcoat, and identified a coat
taken from Jerry-El’s locker in the jail as the coat worn by the shooter. Three other eyewitnesses
identified Gary Robinson (“Robinson”) as Jerry-El’s companion in the store. Shortly thereafter,
another witness was involved in a hit and run automobile accident. The witness stated that the
driver was wearing a green jacket and identified Robinson as a passenger in the car. About 3:45
p.m., an Aliquippa police officer stopped a car driven by LeRoy Hines (“Hines”), which met the
description of the car in the hit and run accident. In the car, he observed a person wearing a
green jacket. When Hines gave false names of the passengers and they had no identification,
they were taken into custody. Further investigation showed that the car involved in the hit and
run accident belonged to Jerry-El’s housemate and was taken without permission.
Jerry-El and Robinson were jointly tried. The defense strategy was to admit involvement
in the hit and run accident and argue that they were running away from the accident, not the
shooting. The jury found Jerry-El guilty of first degree murder and Robinson guilty of second

ineffective assistance of counsel claims does not apply to Jerry-El because he chose to represent
himself in the initial collateral proceeding and he exhaustively raised his claims of ineffective
assistance of counsel.
2

degree murder. Jerry-El was also convicted of robbery, reckless endangerment, aggravated and
simple assault and criminal conspiracy. He was acquitted of receiving stolen property and
unauthorized use of a car. Numerous courts have found that the evidence was sufficient to
support the convictions. Jerry-El was sentenced to life plus fifteen to thirty years.
There have been numerous post-conviction proceedings.

In his direct appeal, the

Pennsylvania Supreme Court held that all his contentions were “without merit.” Commonwealth
v. Jerry-El, 401 A.2d 310 (Pa. 1979). The Pennsylvania Supreme Court remanded for the sole
purpose of considering an allegation of ineffective assistance of trial counsel, which could not be
addressed because trial counsel also represented Jerry-El on direct appeal. Id.
The state trial court held hearings on the alleged ineffective assistance of trial counsel on
November 9, 1979 and January 8, 1980. The same trial judge who presided over the trial also
presided over the hearings. Jerry-El chose to represent himself, but the state trial court provided
stand-by counsel. Jerry-El asserted eighteen grounds of ineffective assistance of trial counsel. In
an opinion dated February 22, 1980, the court held that trial counsel had been effective; had a
reasonable basis for all his actions at trial; and preserved and presented to the Pennsylvania
Supreme Court all issues that should have been reviewed.

(ECF No. 1-4).

The court

commented: “Having observed this defendant in court and listened to his outrageous statements,
we have concluded that he would say anything to get a new trial. Moreover, it is clear that it is
his intention to raise as many issues as possible in the hope that some court will think that
because his complaints are so numerous some of them must be valid.”

Id. at 11.

The

Pennsylvania Supreme Court affirmed Jerry-El’s sentence. Commonweath v. Jerry, 441 A.2d
1210 (Pa. 1982) (per curiam).

3

In 1982, Jerry-El filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254 and
asserted thirty-four separate grounds for relief. Review was prolonged. On May 15, 1986, the
magistrate judge issued a 57-page report and recommendation which concluded that the petition
should be dismissed. (ECF No. 15-2). The magistrate judge commented that each issue Jerry-El
presented was carefully considered; the court carefully read the transcripts of the state court
proceedings; and there was only one constitutional violation and it was harmless.2
magistrate judge stated:

The

“he has received a thorough review of his conviction in these

proceedings and if he continues to file successive petitions, dismissal should be considered as an
abuse of the writ pursuant to Rule 9(b) of the Rules Governing Section 2254 cases in the United
States District Courts.” Id. at 57. Jerry-El raised objections to that report and recommendation.
The district court dismissed Jerry-El’s objections and adopted the report and recommendation as
its opinion. The Third Circuit Court of Appeals denied a certificate of appealability.
In 1988, Jerry-El filed a petition under the Pennsylvania Post Conviction Hearing Act
(“PCHA”), 42 Pa. Cons. Stat. §§ 9541-9546. The state trial court denied the petition and the
Pennsylvania Superior Court affirmed in an opinion dated October 5, 1990. (ECF No. 1-4, 1-5).
The superior court commented that it “found no evidence of ineffectiveness of counsel at the trial
level.” Id.
On December 7, 2005, Jerry-El filed a motion pursuant to Rule 60(b)(3). It was denied by
the district court and Jerry-El appealed. On July 21, 2006, the Third Circuit Court of Appeals
denied a certificate of appealability and stated:

“In this case, the district court properly

Under questioning from Robinson’s attorney, a police officer testified that Robinson told him
that Jerry-El drove the car involved in the hit and run. This testimony was in violation of Bruton
v. United States, 391 U.S. 123 (1968) (the prosecution cannot introduce statements of nontestifying co-defendants in a joint trial), but was harmless because both defendants admitted their
involvement in the hit and run. See ECF No. 15-2 at 21-22.
2

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concluded that appellant’s Rule 60(b)(3) motion was an improper attempt to relitigate issues that
the district court already had decided and that appellant already had sought to appeal.
Appellant’s motion thus constitutes a second or successive petition for a writ of habeas corpus.”
(ECF No. 1-1, Docket of Case No. 82-2357). The court of appeals explained that Jerry-El was
required to first obtain an order from the Third Circuit Court of Appeals authorizing the district
court to consider his petition. Id.
Undeterred, Jerry-El filed another Rule 60(b)(3) motion on October 27, 2011. The motion
was denied by the district court and the Third Circuit Court of Appeals denied a certificate of
appealability. The district court denied Jerry-El’s motion for reconsideration and the Third
Circuit Court of Appeals again denied a certificate of appealability.
In 2015 and 2016, Jerry-El filed other Rule 60 motions and various supplements and
amendments thereto. Beginning in April 2016, all filings in this case were docketed at Misc. No.
16-404. On August 3, 2016, in an effort to streamline the docket, the court denied all pending
motions without prejudice and instructed Jerry-El to file one document setting forth all his claims
for relief. (ECF No. 6). Jerry-El then filed the pending amended Rule 60(b)(6) motion. (ECF
No. 7).
The magistrate judge recognized in the March 31, 2017 R&R that Jerry-El styled his
motion as a “true Rule 60(b) motion,” but concluded that it must be treated as a successive §
2254 habeas corpus petition. The magistrate judge reasoned that Jerry-El had a full opportunity
to litigate his ineffective assistance of trial counsel claim in the state court and failed to show
new evidence or make “even a tenuous showing of actual innocence.” (ECF No. 14 at 5). The
magistrate judge recommended that the motion be dismissed for lack of jurisdiction and that a
certificate of appealability be denied.

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III.

Legal Analysis

This court conducts a de novo review of the challenged portions of a magistrate judge’s
report and recommendation. As recently explained in Hinton v. Mark, No. 3:10-CV-305, 2017
WL 4342204, at *2 (W.D. Pa. Sept. 29, 2017):
When objections are filed to a magistrate judge's report and recommendation, the
district court “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 67475 (1980) (explaining the standard for a district court's review of a magistrate
judge's report and recommendation). The district court may accept, reject or
modify—in whole or in part—the magistrate judge's findings or
recommendations. § 636(b)(1)(C). Although the standard of review is de novo, §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge's proposed findings and
recommendations. Raddatz, 447 U.S. at 676; see also Goney v. Clark, 749 F.2d 5,
7 (3d Cir. 1984) (noting the discretion district courts have in their use of
magistrate judges' reports).

In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress
established strict procedural and substantive requirements which govern “second or successive”
habeas petitions. The relevant part of the AEDPA provides:
(b)(1) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless-(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.

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(3)(A) Before a second or successive application permitted by this section is filed
in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.
28 U.S.C. § 2244(b).
In Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005), the Supreme Court explained that
§2244 imposes three requirements for “second or successive applications”: (1) claims that have
been previously adjudicated must be dismissed; (2) claims that have not been previously
adjudicated must be dismissed unless they rely on a new, retroactive rule of constitutional law or
facts showing a “high probability of actual innocence”; and (3) before the district court may
accept a successive petition, the court of appeals must determine that it satisfies the second
requirement.
Jerry-El attempts to skirt these requirements by labeling his motion as one for relief under
Federal Rule of Civil Procedure 60(b)(6).3 In Gonzalez, the Supreme Court held that kind of
label is insufficient. Instead, courts must examine the substance of the relief sought in the
motion. Id. at 531. Using Rule 60(b) to present new claims for relief conflicts with the limits
enacted in the AEDPA. Id. at 532. In particular, use of Rule 60(b) impermissibly circumvents
the requirement that successive habeas petitions be precertified by the court of appeals. Id.
Determining whether a Rule 60(b) motion advances a “claim” is “relatively simple.” Id.
A motion advances a “claim” if it (1) seeks to add a new ground for relief; or (2) attacks the
federal court’s previous resolution of a claim on the merits. Id. A Rule 60(b) motion would not
advance a “claim” if it merely attacks a defect in the integrity of the federal habeas proceeding,
such as a denial for failure to exhaust, procedural defect or statute of limitations. Id. & n. 5.
Specifically, Jerry-El argues that this is a “true” Rule 60(b) motion because it is a continuation
of the original habeas petition he filed in 1982. In Gonzalez, the Supreme Court emphasized that
Rule 60(b) motions must be made within a reasonable time. Id. at 535. Jerry-El’s instant
motion, some thirty-five years later, is not reasonably timely filed.
3

7

In this case, Jerry-El seeks to add new grounds for relief and attacks the previous denial
of claims on the merits. He advances numerous new arguments in support of his asserted “actual
innocence”4 and he attempts to relitigate the denial of his claims of ineffective assistance of
counsel. In substance, his Rule 60 motion presents a “claim.” It must be construed, therefore, as
a successive habeas petition. Under the clear rules set forth in Gonzalez and § 2244, this court
lacks jurisdiction to consider Jerry-El’s motion without precertification from the court of
appeals.
IV.

Conclusion
In accordance with the foregoing analysis, the objections (ECF Nos. 15, 18) filed pro se

by Jerry-El will be DENIED. The Report and Recommendation (“R&R”) of the magistrate
judge dated March 31, 2017 (ECF No. 14) will be affirmed and adopted as the opinion of the
court, as supplemented herein. Jerry-El’s amended Rule 60(b)(6) motion (ECF No. 7) will be
treated as a successive § 2254 habeas corpus petition and will be DISMISSED for lack of
jurisdiction. Because reasonable jurists could not conclude that a basis for relief exists, a
certificate of appealability will be denied. An appropriate order follows.

November 21, 2017

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

4

Jerry-El does not seriously contest that he was present in the store that day or dispute his
robbery conviction. At best, he suggests that Robinson may have been the actual shooter. Even
if true, Jerry-El would not be entitled to relief because he would be facing a life sentence for
second degree murder. See Pirela v. Horn, No. 14-1938, 2017 WL 4176224, at *11 (3d Cir.
Sept. 21, 2017) (rejecting ineffective assistance of trial counsel claim for lack of prejudice
because even if the defendant was convicted of second degree murder instead of first degree
murder, he would still face a mandatory sentence of life imprisonment under Pennsylvania law).
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BERNARD CARTER JERRY-EL
v.
JAMEY LUTHER, et al.

Misc. No. 16-404
Civil No. 82-2357

ORDER
AND NOW, this 21st day of November 2017, for the reasons set forth in the
accompanying opinion, IT IS HEREBY ORDERED that the Report and Recommendation of the
magistrate judge dated March 31, 2017 (ECF No. 14) is adopted as the opinion of the court, as
supplemented in the accompanying memorandum opinion. The objections to the Report and
Recommendation filed by Bernard Carter Jerry-El (ECF Nos. 15, 18) are DENIED. Jerry-El’s
amended Rule 60(b)(6) motion (ECF No. 7) is treated as a successive § 2254 habeas corpus
petition and is DISMISSED for lack of jurisdiction.

Because reasonable jurists could not

conclude that a basis for relief exists, a certificate of appealability is denied.

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

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