DURHAM v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA et al

Filing 20

MEMORANDUM ORDER. Petitioner George R. Durham's Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b) (Doc. 17 ) is DISMISSED with prejudice and a certificate of appealability is DENIED. The Magistrate Judge's Report and Recommendation (Doc. 18 ) is ADOPTED as the Opinion of the District Court. See contents of this filing. Signed by Judge Cathy Bissoon on 2/4/19. (rdl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GEORGE R. DURHAM,

)
)
Petitioner,
)
)
v.
)
)
THE ATTORNEY GENERAL OF
)
THE STATE OF PENNSYLVANIA, et al., )
)
Respondents.
)

Civil Action No. 17-662
Judge Cathy Bissoon
Magistrate Judge Robert C. Mitchell

MEMORANDUM ORDER
This case has been referred to United States Magistrate Judge Robert C. Mitchell for
pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636 and Local Rule of
Civil Procedure 72.
On August 16, 2018, the Magistrate Judge issued a Report and Recommendation
(“Report,” Doc. 18) recommending that Petitioner George R. Durham’s Second Motion for
Relief from Judgment under Federal Rule of Civil Procedure 60(b)(6) (Doc. 17) be dismissed as
being without a jurisdictional basis. The Report was served on the parties, and Petitioner filed
timely Objections (Doc. 19).
Petitioner objects on two grounds. First, he objects that the Report incorrectly
characterizes the evidence he has put forward to demonstrate his innocence as “self-serving
declarations of the Petitioner” when Petitioner rather claims that the evidence of his innocence is
the testimony of several witnesses at his trial who testified to facts that would demonstrate a

complete alibi. 1 (Objections ¶¶ 3-5.) Second, Petitioner objects that his Rule 60(b)(6) Motion
should not have been treated as a successive habeas petition because, under Satterfield v. District
Attorney of Philadelphia, 872 F.3d 152 (3d Cir. 2017), he is claiming actual innocence and there
has been a relevant change in decisional law by virtue of the Supreme Court’s decision in
McQuiggin v. Perkins, 569 U.S. 383 (2013). (Objections ¶¶ 6-7.)
The Court has conducted a de novo review of the pleadings and documents in the case,
the procedural history of Petitioner’s related actions, the Report, and the Objections. The Court
fully agrees with the Report’s conclusion that Petitioner is, once again, attempting to relitigate
the merits of claims that have been previously adjudicated; reaching the merits of these claims
would require reviewing the Court of Appeals’ orders denying Petitioner’s applications for
certificates of appealability (see Doc. 16 (“Reasonable jurists would not debate the District
Court’s denial of [Durham’s] motion pursuant to Rule 60(b) . . . on the ground that it lacked
jurisdiction”); Civil Action No. 11-719, Doc. 82 (“[R]easonable jurists would not debate that (a)
[Durham]’s trial counsel acted reasonably in not pursuing an alibi defense, and (b) foregoing
such a defense did not prejudice [Durham] in light of the weighty evidence against him.”)). As
this Court lacks jurisdiction to review the Court of Appeals’ decisions, and as Petitioner has
again made no substantial showing that extreme and unexpected hardship would occur without
Rule 60(b) relief, Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014), the Court enters the following
Order:

1

Petitioner claims that trial counsel was ineffective for failing to “connect the dots concerning
this testimony,” failing to argue the correct timeline to the jury, and failing to conduct an
adequate pretrial investigation. (Objections ¶¶ 3-5.)

Petitioner’s Second Rule 60(b) Motion (Doc. 17) is DISMISSED with prejudice as
lacking a jurisdictional basis, and a certificate of appealability is DENIED. The Magistrate
Judge’s Report (Doc. 18) is adopted as the Opinion of the District Court.
IT IS SO ORDERED.

February 4, 2019

cc (via ECF email notification):
All counsel of record
cc (via First-Class, U.S. Mail):
GEORGE R. DURHAM
HN-4394
SCI Fayette
Post Office Box 9999
LaBelle, PA 15450-0999

s/Cathy Bissoon
Cathy Bissoon
United States District Judge