Box v. Petsock

EARL EUGENE BOX, Petitioner v. PETSOCK, ET AL., Respondents

CIVIL ACTION NO. 3:86-CV-1704

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 18, 2014

(JUDGE NEALON)

MEMORANDUM

On December 3, 1986, Petitioner, Earl Eugene Box, an inmate then-confined¹ in the State Correctional Institution in Pittsburgh, Pennsylvania filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his 1975 conviction in the Dauphin County Court of Common Pleas. (Doc. 1). By Memorandum and Order dated November 16, 1987, the habeas petition was dismissed on the merits. (Doc. 37). On March 21, 2013, Petitioner filed a pro se motion under Rule 60(b) to reopen the judgment. (Docs. 57-59). A notice of appearance for Petitioner was subsequently filed, and on October 25, 2013, a supplemental motion to reopen judgment pursuant to Rule 60 was submitted. (Doc. 80). The matter has been fully briefed and, for the reasons set forth below, the motion will be denied.

Background

The factual background provided in the Memorandum dated November 16, 1987, is as follows:

On September 14, 1974, shortly after midnight, Steelton police received a call to investigate a shooting at Mueller's Tavern, a family-owned bar/restaurant located in the borough. The bar had been the target of a robbery. Three armed men had entered the establishment and ordered everyone to lie on the floor. One patron ran into the tavern's kitchen and began to run up the stairs that connected the firstfloor tavern to the upstairs family living quarters. She fainted on the steps after seeing that one of the gunmen had followed her.

Twenty-year-old John B. Mueller III was upstairs and apparently heard the commotion; he came to the top of the stairs. The gunman fired a single.32 caliber bullet which pierced Mueller's heart. He died a short time later.

The gunmen fled with money taken from cash registers and patrons. They entered a waiting car and sped off.

This incident as one in a series of similar robberies that occurred in the Harrisburg area. A subsequent robbery took place at the Fireside Bar in Carlisle. It resulted in the shooting death of a patron named Paul Liebold. Two days later one of the defendant's companions, Frank Martin, attempted to cash one of Liebold's checks. A suspicious teller kept the check and got the license number of the vehicle in which Martin was riding. He was subsequently arrested and identified in a lineup. Based on information received from Martin, police learned of the defendant and issued a warrant for his arrest. A search of an abandoned apartment which had been rented by a woman named Nellie Dixon, and which was said to be the defendant's residence, revealed two guns, at least one of which was used by the gunmen. The defendant was later arrested in Boston, Massachusetts.

During the trial the defendant's companions identified him as the person who shot and killed John Mueller III. The Commonwealth also introduced evidence of the other robberies committed by the gang as well as one of the guns found in the Dixon apartment. The court instructed the jury on the elements of first, second and third degree murder and on those of robbery. After several hours of deliberation they found the defendant guilty of both murder in the second degree and robbery. Defendant was sentenced to a term of life and two consecutive terms of ten (10) to twenty (20) years.

(Doc. 37, pp. 2-3) (taking facts from the decision of the Dauphin County Court of Common Pleas denying Petitioner's request for relief under the Post Conviction Hearing Act, dated April 4, 1983).² Judgments of sentence were affirmed on appeal. Commonwealth v. Box, 481 Pa. 62 (1978).

On December 6, 1979, Petitioner filed a petition for relief under the Post-ConvictionHearing Act ("PCHA"),³ alleging trial counsel's ineffectiveness "in failing to file a pre-trial motion to suppress evidence and in failing to seek a charge to the jury on voluntary manslaughter", and alleging that he was "denied a fair trial by the introduction of evidence of unrelated offenses." Commonwealth v. Box, 451 A.2d 252, 254 (Pa. Super. 1982). On January 28, 1981, the petition was denied without a hearing. Id. On appeal, the Pennsylvania Superior Court remanded the matter to the PCHA court to determine whether the admissibility of evidence was waived. Id. at 255.

Following an evidentiary hearing, PCHA relief was denied on April 4, 1983. Commonwealth v. Box, Nos. 965, 968 C.D. 1975 (Dauphin County Ct. C.P. April 4, 1983). The PCHA court considered, and rejected, Petitioner's claims that trial counsel was ineffective in not appealing the admission of the other robberies, in failing to request that the jury be instructed on voluntary manslaughter, and for failing to seek suppression of evidence found in Dixon's apartment. Id. The decision was affirmed by the Pennsylvania Superior Court on September 21, 1984.⁴ Commonwealth v. Box, No. 199 Harrisburg 1983 (Pa. Super. September 21, 1984). On August 21, 1985, the Pennsylvania Supreme Court granted Petitioner the right to file a nunc pro tunc appeal.⁵ Commonwealth v. Box, No. 171 M.D. All. Dkt. 1985 (Pa. August 21, 1985). But,on October 6, 1986, the Pennsylvania Supreme Court denied the petition for allowance of appeal. Commonwealth v. Box, No. 171 M.D. All. Dkt. 1985 (Pa. October 6, 1986).

On December 2, 1986, Petitioner initiated the instant action by filing a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging fifteen (15) separate claims of trial court error and the ineffective assistance of counsel. (Doc. 1). The habeas claims were addressed on the merits and denied by Memorandum and Order dated November 16, 1987. See (Doc. 37). The Third Circuit Court of Appeals affirmed. Box v. Petsock, 860 F.2d 1074 (3d Cir. 1988), cert. denied 489 U.S. 1028 (1989).

On January 5, 2006, Petitioner filed a pro se motion to reopen pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (Doc. 52). The motion claimed that the Court misapplied the facts, and alleged fraud on the Court. (Doc. 52). This motion was dismissed as untimely on January 9, 2006. (Doc. 53). Petitioner took an appeal from this decision, but on April 21, 2006, the Third Circuit Court of Appeals denied his request for a certificate of appealability. Box v. Petsock, et al., App. No. 06-1353 (3d Cir. April 21, 2006). Additionally, the Third Circuit Court of Appeals denied his application for permission to file a second or successive section 2254 petition. In Re: Earl Eugene Box, App. No. 06-1554 (3d Cir. April 13, 2006).

On March 21, 2013, Petitioner filed a pro se motion under Rule 60(b) to reopen the judgment dated November 16, 1987, and a motion for leave to proceed in forma pauperis. (Docs. 57-58). Petitioner refiled his Rule 60(b) motion on April 2, 2013, along with supporting exhibits. (Doc. 59). On April 26, 2013, counsel entered his appearance on behalf of Petitioner and subsequently sought an extension of time to file an amended motion and memorandum of law. (Docs. 60-64). After receiving several extensions of time, see (Docs. 65, 67, 73-79),Petitioner, through counsel, filed a supplemental motion to reopen judgment pursuant to Rule 60, and a consolidated brief on October 25, 2013. (Doc. 80). The motion seeks relief under Rule 60(b)(6) and (d)(3), "alleging extraordinary circumstances and significant fraud upon this court, which taints the judgment previously entered on November 16, 1987, and warrants reopening the matter so that it can be litigated properly." (Id. at p. 18). The motion claims that the change in the law brought by the United States Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012)⁶, represents an "extraordinary" circumstance to justify relief under Rule 60(b)(6). (Doc. 80, p. 20). Petitioner alleges the ineffective assistance of counsel at trial, on direct appeal, and at his first PCRA proceeding. (Id. at p. 22).

Additionally, Petitioner claims that the judgment may be set aside pursuant to Rule 60(d)(3) for fraud on the court. (Doc. 80, pp. 22-48). Specifically, he alleges there was fraudulent testimony at trial concerning the discovery of the guns in Dixon's apartment. (Id. at pp. 24-36). He contends that the Commonwealth's answer to the PCHA petition also fraudulently represented the trial testimony. (Id. at p. 32). Petitioner claims that this fraud continued into the federal habeas proceedings because he had not yet obtained a copy of the transcript from a co-conspirator's trial and that the Commonwealth's answers were either deceptive or failed to directly answer Petitioner's allegations in his habeas petition. (Id. at p. 34-36). Next, he alleges that the trial transcript has been altered to omit certain testimony and events relating to Petitioner's alleged inculpatory and racist statement to Frank Martin, an alleged co-conspirator. (Doc. 80, pp. 36-40). Petitioner asserts that his first PCHA counsel was ineffective in failing to litigate these issues. (Id. at pp. 33, 38). Petitioner further alleges that trial counsel fraudulently represented to the trial court that he had subpoenaed Leroy Willie Smith, an alleged co-conspirator who had been acquitted of charges. (Id. at pp. 41-43). Petitioner claims that this issue was raised in his habeas petition and overlooked by this Court. (Id. at pp. 43-44). The motion to reopen then alleges that the prosecution committed fraud on the trial court in its attempt to bolster the testimony of John Hyman. (Id. at pp. 44-46). Petitioner asserts that PCHA counsel was ineffective for failing to raise this issue. (Id.). Next, Petitioner argues that in his original habeas petition, he alleged that counsel was ineffective for failing to challenge the constitutionally insufficient arrest warrant, but that Respondents concealed the constitutionally deficient warrant by failing to provide the Court with a copy of the document or specifically answering this claim. (Id. at pp. 46-48). He contends that this Court...