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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARMINE A. LAURO, SR. : CIVIL ACTION

Petitioner, :

 v. :

: 

GEORGE A. PATRICK, et al. : NO. 04-4102

Respondents. :

MEMORANDUM

Baylson, J. March 15, 2006

 In a December 29, 2005 Memorandum and Order, 2005 WL 3557832, this Court denied

pro se Petitioner Carmine Lauro’s habeas corpus petition as time barred under 28 U.S.C. §

2244(d)(1). The Petitioner then filed a Motion for Reconsideration, which the Court addressed in

an April 26, 2006 Memorandum and Order, 2006 WL 117953. After considering the Petitioner’s

arguments, the Court concluded that it did not appear that the Petitioner was entitled to any relief. 

However, because the Petitioner’s appeal from the denial of his second PCRA petition was

pending before the Superior Court of Pennsylvania, out of “an abundance of caution,” the Court

decided to withhold judgment temporarily and to place the case in suspense until the Superior

Court reached a decision on Petitioner’s appeal. 

While awaiting that decision from the Superior Court, Petitioner filed a “Rule 60(b)

Motion for Relief from Order Dismissing Petition for Writ of Habeas Corpus” with this Court. 

The Court denied the motion without prejudice in an Order dated October 25, 2006, noting the

case was in suspense pending a decision on Petitioner’s appeal. On November 29, 2006, the

Superior Court issued a decision on Petitioner’s second PCRA petition, Commonwealth v.

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LAURO v. PATRICK et al Doc. 24

Dockets.Justia.com
 Alternatively, even if the Superior Court had not issued its decision, the federal petition 1

would still be untimely. Since the second PCRA petition was filed on August 25, 2004, two days

after the federal petition, even if the Superior Court had overruled the Common Pleas Court and

decided that the second PCRA petition was somehow timely, it appears that there would be no

statutory tolling of the federal habeas petition under 28 U.S.C. § 2244(d)(2). The federal petition

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Lauro, 915 A.2d 145 (Pa. Super. Ct. 2006) (unpublished memorandum), affirming the denial of

the petition as untimely under the applicable state statute, 42 Pa. C.S.A. § 9545(b). 

Presently before this Court are two outstanding motions, Petitioner’s Motion for

Reconsideration of the Court’s December 29, 2005 decision (Doc. No. 16) and Petitioner’s Rule

60(b) Motion (Doc. No. 23). For the reasons outlined below, both of these motions will be

denied.

I. Motion for Reconsideration

The Court’s April 26, 2006 Memorandum thoroughly addressed the merits of Petitioner’s

Motion for Reconsideration. As discussed in footnote one of that opinion, although the one-year

statute of limitations for federal habeas petitions is tolled during the time a properly filed PCRA

petition is pending in the state courts, see 28 U.S.C. § 2244(d)(2), in this case, Petitioner's second

PCRA petition, filed August 25, 2004, did not toll the statute of limitations because it was filed

after the PCRA statute of limitations expired on January 5, 2001. Although Petitioner attempted

to invoke the exceptions to the one-year filing deadline for PCRA petitions, see 42 Pa. Cons.

Stat. § 9545(b)(1)(i)–(iii), the Superior Court’s recent decision rejected those arguments. 

Because the state court has ruled that the Petitioner’s second PCRA petition was not timely filed

and did not meet one of the statutory exceptions for timeliness, it was not “properly filed” for

purposes of AEDPA and did not toll the one-year AEDPA statute of limitations. See Pridgen v.

Shannon, 380 F.3d 721, 728-29 (3d Cir. 2004). Furthermore, for the reasons laid out in this 1

Case 2:04-cv-04102-MMB Document 24 Filed 03/16/2007 Page 2 of 6
was untimely when it was filed, and any tolling that would occur due to the pending second

PCRA petition would be irrelevant because the time remaining on the AEDPA statute of

limitations had already expired. 

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Court’s April 26, 2006 Memorandum, the Petitioner’s federal habeas petition is not subject to

equitable tolling. Petitioner’s Motion for Reconsideration will be denied. 

II. Rule 60(b) Motion

Petitioner renewed his 60(b) Motion shortly after the Superior Court issued its decision.

Petitioner asserts in his cover letter to this renewed motion that, “[n]o appeal to the Pa. Supreme

Court will be taken while this 60(b) Motion is pending in this Court. Should this Court rule

favorably, there would be no need to file an appeal with the Pa. Supreme Court.” The Petitioner

had thirty days to appeal the Superior Court’s November 29, 2006 decision to the Supreme Court

of Pennsylvania. See Pa. R. App. P. 1113. Although his cover letter implies that he may seek to

appeal if this Court does not issue a favorable determination, the Petitioner has already exhausted

his state court remedies, giving this Court jurisdiction to rule conclusively on his federal habeas

petition. See 30 Pa. Bull. 2582 (May 27, 2000) (“When a claim has been presented to the

Superior Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final

order, the litigant shall be deemed to have exhausted all available state remedies for purposes of

federal habeas corpus relief.”). 

In his Rule 60(b) Motion, Petitioner argues that his state court conviction is not yet final. 

Petitioner contends that his direct appeal was never perfected because his appellate counsel failed

to file a statement with the trial court as required under Pa. R. App. P. 1925 outlining the issues

Petitioner planned to raise on appeal, and therefore it was an abuse of discretion for the Superior

Court to consider the merits of his appeal. According to Petitioner, he complained of this issue

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in his first PCRA petition, but his counsel “inexplicably” failed to call his direct appeal counsel

to testify at the evidentiary hearing on the petition, and the PCRA court would not allow any

testimony on this issue. Petitioner asserts that the PCRA court committed an error of law when it

failed to consider the appellate rights issue raised in his first PCRA petition.

Because of these actions, Petitioner argues that his right to appeal under the Pennsylvania

constitution, his right to effective counsel under the Sixth Amendment, and his due process rights

under the Sixth and Fourteenth Amendments have been violated. He concludes: “This

Honorable Court’s decision dated Dec. 29, 2005 must be held VOID due to the State Court

depriving petitioner [of] his Direct Appeal as of Right, and his right to effective counsel at direct

appeal and first timely PCRA stages, thereby restricting this Court’s jurisdiction pursuant to 28

U.S.[C.] § 2254(a)(b).” 

As an initial matter, the Court concludes that the ineffective assistance of counsel

arguments raised in Petitioner’s 60(b) motion constitute “claims[s] presented in a second or

successive habeas corpus application.” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). Because

the motion “substantively addresses federal grounds for setting aside the movant's state

conviction,” id. at 533, the Court will dismiss the ineffective assistance claims in Petitioner’s

Rule 60(b) motion as an attempt to file a second or successive habeas petition in contravention of

AEDPA. 

Furthermore, Petitioner’s argument that his direct appeal conviction is not yet final is an

unsuccessful attempt to fit his case into the narrow exception to the “second and successive”

AEDPA rule for Rule 60(b) motions. The Third Circuit has held that the AEDPA restriction on

second and successive habeas petitions does not apply to a Rule 60(b) motion that “attacks the

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manner in which the earlier habeas judgment was procured and not the underlying conviction.” 

Prigden, 380 F.3d at 727. For example, a federal court’s lack of subject matter jurisdiction over a

habeas petition is an appropriate issue to raise in a Rule 60(b) motion and does not constitute a

“claim” for purposes of AEDPA’s “second and successive” restriction. Gonzalez, 545 U.S. at

534. 

In this case, the Petitioner’s conviction was directly appealed to the Superior Court of

Pennsylvania, and that court issued a decision on the merits of his appeal. According to the

pages of the Superior Court opinion Petitioner attaches to his motion, the court specifically noted

that his appellate counsel had failed to file the required Rule 1925 statement. However, the court

went on to reason that, although that failure would normally function as a waiver of those claims

on appellate review, “[i]n the interest of judicial economy . . . and rather than expend valuable

judicial time on a subsequent PCRA, we will address the merits of the appellant’s issues.” Lauro

did not seek discretionary review of that decision in the Pennsylvania Supreme Court. 

Petitioner’s reliance on Commonwealth v. Bronaugh, 670 A.2d 147 (Pa. Super. Ct. 1995), is

therefore misplaced. In that case, the petitioner’s sentence was never directly appealed, although

he claimed that he expressly asked his counsel to do so. Id. at 148-49. In light of the Superior

Court decision addressing the merits of Lauro’s conviction, Petitioner’s argument that he was

denied the right to a direct appeal and has not exhausted his state court remedies is meritless. 

Since Petitioner fails to raise any genuine issues in his motion relating to a “nonmerits

aspect of the first federal habeas proceeding,” id. at 534, the Rule 60(b) motion can be denied in

its entirety. An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARMINE A. LAURO : CIVIL ACTION

Petitioner, :

:

 5. :

 : NO. 04-4102

GEORGE A. PATRICK, et al. : 

Respondents. :

ORDER

AND NOW, this 15th day of March, 2007, for the reasons stated in the forgoing

Memorandum, it is hereby ORDERED as follows:

1. Petitioner’s Motion for Reconsideration (Doc. No. 16) is DENIED;

2 Petitioner’s Rule 60(b) Motion (Doc. No. 23) is DENIED;

3. The Clerk of the Court shall mark this case closed for statistical purposes.

BY THE COURT:

 /s/ Michael M. Baylson 

Michael M. Baylson, U.S.D.J.

A:\Lauro v. Patrick, 04-4102 Reconsideration & 60(b).wpd

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