United States District Court, D. Delaware
ANDRE D. JOHNSON, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
1994, a Delaware Superior Court jury convicted Petitioner of
two counts each of second degree burglary, second degree
conspiracy, and misdemeanor theft, and one count each of
theft, theft of a firearm, carrying a concealed deadly
weapon, possession of a deadly weapon by a person prohibited,
resisting arrest, and disobeying a traffic device. See
Johnson v. State, 962 A.2d 917 (Table), 2008 WL 5191835,
at *1 (Del. Dec. 11, 2008); Johnson v. Phelps, 717
F.Supp.2d 398, 400 (D. Del. 2010). The Superior Court
sentenced Petitioner as a habitual offender to life
imprisonment on one count of second degree burglary, and to a
total of nineteen additional years of incarceration on the
remaining convictions. See Johnson, 2008 WL 5191835,
at *1. Acting pro se, Petitioner appealed his
convictions and sentences, but later voluntarily withdrew his
appeal in 1995. See id.
April 2008, Petitioner filed in the Superior Court a motion
to correct an illegal sentence pursuant to Delaware Superior
Court Criminal Rule 35(a). See Johnson, 2008 WL
5191835, at *1. The Superior Court denied the motion on May
21, 2008, and the Delaware Supreme Court affirmed that
decision in December 2008. Id. at *2.
2010, the Honorable Sue L. Robinson denied as time-barred
Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. See Johnson, 717
F.Supp.2d at 403-04. In August 2013, Petitioner filed his
first motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"),
alleging that the trial court violated his right to
self-representation during his 1994 criminal proceeding and
that defense counsel provided ineffective assistance by
failing to protect his right to self-representation. See
State v. Johnson, 2016 WL 4257504, at *3 (Del. Super.
Ct. Aug. 11, 2016). Although it determined that the Rule 61
motion was time-barred, the Delaware Superior Court concluded
that Petitioner's contentions warranted consideration on
the merits under Rule 6l(i)(5). Id. The Superior
Court denied the Rule 61 motion as meritless on August 11,
2016. Id. at *9. The Delaware Supreme Court affirmed
that decision on March 22, 2017. See Johnson v.
State, 159 A.3d 263 (Table), 2017 WL 1090542, at *1
(Del. Mar. 22, 2017).
December 6, 2017, Petitioner filed in the Court of Appeals
for the Third Circuit an Application for Leave to File Second
or Successive Habeas Petition ("Application"),
asserting two grounds for relief: (1) the trial court denied
his right to self-representation during his 1994 state
criminal proceeding; and (2) defense counsel provided
ineffective assistance during that same state criminal
proceeding by failing to protect his right to
self-representation. See In re: Andre Johnson, CA.
No. 17-3642, Application (3d Cir. Dec. 6, 2017). Petitioner
contended that the Third Circuit should grant permission for
him to file his second Application for habeas relief under
Martinez v. Ryan, 566 U.S. 1 (2012). The Third
Circuit denied the Application on January 9, 2018. See In
re: Andre Johnson, C.A. No. 17-3642, Order (3d Cir. Jan.
March 2018, Petitioner filed in this Court a document titled
"Motion for Relief from Judgment, Proceedings and Order
Under Rule 60(b)" and a Motion for Leave to Proceed
In Forma Pauperis. (D.I. 1; D.I. 2) Petitioner filed
an Amendment to the Rule 60(b) Motion in July 2018. (D.I. 9)
motion filed pursuant to Federal Rule of Civil Procedure
60(b) "allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited
set of circumstances including fraud, mistake, and newly
discovered evidence." Gonzalez v. Crosby, 545
U.S. 524, 528 (2005). Rule 60(b) motions are addressed to the
sound discretion of the trial court, and are guided by
accepted legal principles applied in light of all relevant
circumstances. Pierce Assoc. Inc. v. Nemours Found.,
865 F.2d 530, 548 (3d Cir. 1988). However, a motion for
reconsideration is not appropriate to reargue issues that the
court has already considered and decided. Brambles USA
Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D. Del. 1990).
when, as here, a district court is presented with a motion
filed pursuant to Rule 60(b) after it has denied the
petitioner's federal habeas petition, the court must
first determine if the motion constitutes a second or
successive application under the Antiterrorism and Effective
Death Penalty Act ("AEDPA"). As articulated by the
in those instances in which the factual predicate of a
petitioner's Rule 60(b) motion attacks the manner in
which the earlier habeas judgment was procured and not the
underlying conviction, the Rule 60(b) motion may be
adjudicated on the merits. However, when the Rule 60(b)
motion seeks to collaterally attack the petitioner's
underlying conviction, the motion should be treated as a
successive habeas petition.
Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.
2004). A habeas petition is classified as "second or
successive" within the meaning of 28 U.S.C. § 2244
if a prior petition has been decided on the merits, the prior
and new petitions challenge the same conviction, and the new
petition asserts a claim that was, or could have been, raised
in a prior habeas petition. See Benchoff v.
Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In re
Olabode, 325 F.3d 166, 169-73 (3d.Cir. 2003). Pursuant
to 28 U.S.C. § 2244(b)(1), if a habeas petitioner files
a second or successive habeas petition "in a district
court without the permission of a court of appeals, the
district court's only option is to dismiss the petition
or transfer it to the court of appeals pursuant to 28 U.S.C.
§ 1631." Robinson v. Johnson, 313 F.3d
128, 139 (3d Cir. 2002).
Rule 60(b) Motion, Petitioner asks the Court to directly
vacate his 1994 conviction and the Delaware state courts'
denial of his Rule 61 motion on the ground that the trial
judge committed fraud and/or engaged in misconduct by
violating his right to self-representation. (D.I. 3 at 2-3;
D.I. 6 at 5) Petitioner's Rule 60(b) Motion is unavailing
for two reasons. First, the Court lacks jurisdiction to grant
the relief Petitioner requests under Rule 60(b), because Rule
60(b) only authorizes a district court to vacate its own
orders and judgments in the civil context; it does not
authorize a district court to vacate a state criminal
judgment or order. See Florimonte v. Borough of
Dalton, 2017 WL 7542619, at *4 (M.D. Pa. Dec. 14, 2017);
Green v. Coleman, , Petitioner also did not include
on his Rule 60(b) Motion the Civil Action Number of his first
habeas proceeding, Johnson v. Phelps, Civ. A. No.
00-104-SLR, and he is not asking the Court to reconsider the
Honorable Sue L. Robinson's dismissal of his first habeas
petition. 2014 WL 1050542, at *2 (W.D. Pa. Mar. 18, 2014);
see also Negron v. United States, 164 Fed.Appx. 158,
159 (2d Cir. 2006) ("Federal Rules of Civil Procedure
'govern the procedure in the United States district
courts in all suits of a civil nature' ....
Thus, Rule 60(b) cannot afford [petitioner] relief from his
judgment of conviction in a criminal case.").
the only method by which a state prisoner can challenge a
state court criminal conviction in federal court is via a
habeas petition filed pursuant to 28 U.S.C. § 2254.
See In re Robinson,425 Fed.Appx. 114, 115 (3d Cir.
May 2, 2011) ("The proper avenue for challenging a state
court conviction in federal court is 28 U.S.C. 2254.");
see also Preiser v. Rodriguez,411 U.S. 475, 500
(1973) ("[W]hen a state prisoner is challenging the very
fact or duration of his physical imprisonment, his sole
federal remedy is a writ of habeas corpus."); Coady
v. Vaughn,251 F.3d 480, 485 (3d Cir. 2001)
("Congress has attached restrictions to Section 2254
proceedings that should not be circumvented by permitting a
petitioner to go forward under the more general authority
conferred by Section 2241."). Although Petitioner has
styled his filing as a Rule 60(b) Motion, the Motion is
collaterally attacking Petitioner's underlying
conviction. After reviewing Petitioner's instant filing
in context with his earlier habeas proceeding, it is apparent
that the instant filing constitutes a second or successive
habeas petition for the purposes of § 2244. See
Gonzalez, 545 U.S. at 531 -32 (holding that a Rule 60(b)
motion adding a new ground for relief advances a
"claim" that is subject to the "second or
successive" restrictions contained in 28 U.S.C. §
2244(b)); see also Pridgen, 380 F.3d at 817. For
instance, the filing challenges Petitioner's 1994
conviction in the Delaware Superior Court, which is the same