IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROUTHA ROUSSAW, :

Petitioner, :

:

v. : CIVIL ACTION 04-CV-3696

:

PALOKOVICH, et al., :

Respondents. :

MEMORANDUM

ROBRENO, J. August 5, 2020

Pro se Petitioner Routha Roussaw, a prisoner in state custody following his conviction 

for first degree murder and conspiracy, has filed a Motion for Relief from Judgment Under Fed. 

R. Civ. P. 60(b). (See ECF No. 43.) Roussaw seeks to reopen the judgment dismissing his 

Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Because the Motion must 

be deemed to be an unauthorized second or successive habeas petition over which this Court 

lacks jurisdiction, the Motion is dismissed.

I. BACKGROUND

The procedural history and factual background of Roussaw’s conviction is fully set forth 

in the Report and Recommendation prepared by Magistrate Judge Strawbridge. (ECF No. 19.) 

Accordingly, the Court outlines only the information necessary to place the instant Motion in 

context. Roussaw filed his habeas petition in this Court on August 1, 2004 after exhausting his 

state court remedies. In his petition, he raised jury instruction and ineffective assistance of 

counsel claims that were adjudicated on their merits. (Id. at 6-13.) After Roussaw filed 

objections to the Report and Recommendation (ECF No. 25), his objections were overruled, and 

the Court adopted the Report and Recommendation in an Order filed on October 10, 2005. (ECF 

No. 26.) A certificate of appealability was denied in the same Order, and the United States Court 

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of Appeals for the Third Circuit likewise declined to issue a certificate of appealability. (ECF 

No. 33.) 

The docket reflects that Roussaw sought permission from the Third Circuit to file a 

second or successive § 2254 petition, but that request was denied in an order filed on January 22, 

2013 (ECF No. 35.) He then filed a pleading in this Court on January 31, 2013 seeking to (1)

“recall the mandate” that dismissed his § 2254 petition or, in the alternative, (2) to file a § 2241 

habeas petition. (ECF No. 36 at 1.)1 This relief was denied in an Order filed on March 28, 2013 

since the pleading constituted a second or successive habeas petition over which this Court 

lacked jurisdiction. (ECF No. 37.) The Third Circuit denied Roussaw’s request for a certificate 

of appealability on August 8, 2013 (ECF No. 42.) In the current Motion, Roussaw seeks relief 

pursuant to Rule 60(b). He asserts that, in the resolution of his direct appeal, the Pennsylvania 

Superior Court vacated his conviction for robbery charges and granted him a new trial on those 

charges.2 (ECF No. 43 at 2.) That charge was nolle prossed in 1993, but Roussaw claims he did 

not learn of this fact until 2018. (Id.) Thereafter, he filed a new petition pursuant to the 

Pennsylvania Post Conviction Relief Act based on these “newly discovered facts.” (Id. at 3.) 

The petition was dismissed as time barred, and the Pennsylvania Superior Court affirmed that 

decision in on March 22, 2019. (Id.) The Pennsylvania Supreme Court denied his Petition for 

Allowance of Appeal on September 24, 2019. (Id.) He seeks “under Rule 60(b) to have the state 

court’s determination that the lower court’s petitions were ‘time-barred,’ [reviewed] where they 

 1 The Court adopts the pagination supplied by the CM/ECF docketing system.

2 Unmentioned by Roussaw, in the same decision, the Pennsylvania Superior Court affirmed the 

judgment of sentence concerning his murder and conspiracy convictions. See Commonwealth v. 

Roussaw, No. 2157 EDA 2018, 2019 WL 1313379, at *1 (Pa. Super. Ct. Mar. 22, 2019)

(recounting procedural history).

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were in fact based upon ‘Newly Discovered Evidence/Fact as outline in Rule 60(b).” (Id. at 7.) 

Specifically, he seeks to challenge “the integrity of the lower court’s initial resolution of this 

matter” and to pursue habeas relief in this Court “due to the procedural errors made by the state 

courts. . . .” (Id. at 10.)

II. STANDARDS

A. Federal Rule of Civil Procedure 60

Federal Rule of Civil Procedure 60(b) provides as follows:

On motion and just terms, the court may relieve a party or its legal representative 

from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have 

been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an 

earlier judgment that has been reversed or vacated; or applying it prospectively is 

no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Rule 60(c) in turn provides the timing within which a Rule 60(b) motion 

must be made: either within a year of the entry of order or judgment from which the motion 

seeks relief if the motion is made pursuant to Rule 60(b)(1), (2), or (3), or “within a reasonable 

time” if the motion is made under any other provision. Fed. R. Civ. P. 60(c). 

B. Second or Successive Habeas Petitions

Because this is a federal habeas action, the Court must evaluate whether the Rule 60(b) 

Motion is an unauthorized second or successive habeas petition. That is because the 

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in relevant part at 

28 U.S.C. § 2244(b), mandates that before a state prisoner may file a second or successive 

habeas petition in which he challenges a judgment of sentence that he previously challenged in a 

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federal habeas action, he must first obtain an order from the appropriate court of appeals 

authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A); see, e.g., 

Magwood v. Patterson, 561 U.S. 320, 330-31 (2010); United States v. Winkelman, 746 F.3d 134, 

135 (3d Cir. 2014); In re Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per curiam). Importantly, 

AEDPA’s allocation of “gatekeeping” responsibilities to the courts of appeals has divested 

district courts of jurisdiction over habeas applications that are second or successive. See, e.g., 

Burton v. Stewart, 549 U.S. 147 (2007). A habeas petitioner cannot avoid AEDPA’s second or 

successive gatekeeping mechanism by raising habeas claims in a filing that he designates as a 

Rule 60(b) motion. Brian R. Means, FEDERAL HABEAS MANUAL § 11:42, Westlaw 

(database updated May 2019) (a habeas petitioner “is not permitted to circumvent AEDPA’s 

second or successive petition requirements simply by labeling the petition or motion as 

something other than what it is.”).

In Gonzalez v. Crosby, 545 U.S. 524 (2005), the United States Supreme Court addressed 

the circumstances in which the utilization of Rule 60(b) is “inconsistent with” AEDPA’s second 

or successive petition requirements and, as a consequence, not available to a state prisoner 

seeking habeas relief.3 It explained that a Rule 60(b) motion must be construed as a “second or 

successive habeas corpus application” when it advances one or more “claims.” Id., 545 U.S. at 

531-32 (quoting § 2244(b)(1) and (2)). “In most cases,” the Supreme Court observed, 

“determining whether a Rule 60(b) motion advances one or more ‘claims’ will be relatively 

simple.” Id. at 532. “A motion that seeks to add a new ground for relief . . . will of course 

 3 “Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings 

under 28 U.S.C. § 2254 only ‘to the extent that [it is] not inconsistent with’ applicable federal 

statutory provisions and rules.’” Gonzalez, 545 U.S. at 529 (footnote omitted, bracketed text 

added by Supreme Court) (quoting what is now Rule 12 of the Rules Governing Section 2254 

Cases).

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qualify.” Id. The Supreme Court further instructed that a petitioner is also advancing a habeas 

claim in a Rule 60(b) motion if he “attacks the federal court’s previous resolution of a claim on 

the merits, since alleging that the court erred in denying habeas relief on the merits is effectively 

indistinguishable from alleging that the movant is, under the substantive provisions of the 

statutes, entitled to habeas relief.” Id. (footnote omitted). Similarly, a motion that seeks to 

present newly discovered evidence in support of a claim that was previously denied represents a 

habeas claim. Id.

In contrast, a motion is a “true” Rule 60(b) motion if it challenges a procedural ruling 

made by the district court that precluded a merits determination of the habeas petition, or

“challenges a defect in the integrity of the federal habeas proceedings,” such as an assertion that 

the opposing party committed fraud upon the court. Id. at 532 and n.4.

III. DISCUSSION

Because, pursuant to 28 U.S.C. § 2244(b)(2), a federal court does not possess jurisdiction 

to review an unauthorized second or successive habeas petition cloaked as a Rule 60(b) Motion, 

the threshold question before the Court is whether Roussaw’s Rule 60(b) motion is a true Rule 

60(b) motion, or, in reality, a successive habeas petition. The answer to this question is clear. 

While Roussaw attempts to cast his Rule 60(b) claim as a procedural argument rather than a new 

habeas claim, (see ECF No, 43 at 11-12 (“Roussaw is clearly challenging ‘a nonmerits aspect. 

Indeed, the error raised by the Plaintiff is a federal one due to it involving a claim of Fraud by 

the court. . . . Rule 60(b) is the proper vehicle for Plaintiff to raise such a claim.”), he is not 

challenging the procedure employed by this Court in adjudicating his original habeas petition. 

Rather, he seeks to use Rule 60(b) to challenge the procedures used by the Pennsylvania courts 

in adjudicating his fourth PCRA petition. This is not a proper use of Rule 60(b) since any 

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additional argument attacking the validity of his judgment of sentence constitutes a new 

substantive habeas claim. Because Roussaw has not received authorization from the Court of 

Appeals to file another federal habeas petition to attack that judgment of sentence, this Court 

lacks jurisdiction to consider those claims.

An appropriate Order dismissing the Rule 60(b) Motion for lack of jurisdiction and 

finding no probable cause to issue a certificate of appealability follows.

BY THE COURT:

_/s/ Eduardo C. Robreno____________

EDUARDO C. ROBRENO, J.

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