                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2007

Pettijohn v. Green
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3999




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Recommended Citation
"Pettijohn v. Green" (2007). 2007 Decisions. Paper 471.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/471


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3999
                                   ________________

                               ELWOOD L. PETTIJOHN,
                                        Appellant

                                               v.

                         G. MICHAEL GREEN, D.A. OFFICE;
                          SHELDON KOVACH, ASST. D.A.
                            IN HIS OFFICIAL CAPACITY

                      ____________________________________

                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                             (D.C. Civ. No. 05-cv-02598)
                        District Judge: Honorable Marvin Katz
                    _______________________________________

                  Submitted Under Third Circuit LAR 34.1(a)
                             September 5, 2007
        BEFORE: RENDELL, HARDIMAN and COWEN, CIRCUIT JUDGES

                                (Filed September 6, 2007)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Appellant, Elwood Pettijohn, proceeding pro se, appeals from the District Court’s

orders denying his motion pursuant to Fed. R. Civ. P. 60(b) and denying his motion for

reconsideration pursuant to Fed. R. Civ. P. 59. For the reasons that follow, we will
affirm.

          Appellant filed a civil rights complaint, requesting an injunction ordering the

Appellees to turn over two photographs, which Appellant alleges were unconstitutionally

withheld from him during his trial in 1988. The District Court dismissed the complaint

for failure to pay the filing fee, and, in the alternative, dismissed the complaint as

frivolous. Appellant appealed. We dismissed the appeal for lack of jurisdiction because

the notice of appeal was untimely. C.A. No. 05-3588. Thereafter, Appellant filed a

motion pursuant to Fed. R. Civ. P. 60(b), claiming that the District Court’s Clerk’s Office

had mistakenly returned his filing fee to him instead of applying it toward his action.

After reviewing Appellant’s motion and Appellees’ response in opposition, the District

Court denied Appellant’s motion. Thereafter, Appellant filed a motion for

reconsideration of the order denying his Rule 60(b) motion, which the District Court also

denied.

          We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of

the District Court’s order denying relief under Rule 60(b) is abuse of discretion. Harris v.

Martin, 834 F.2d 361, 364 (3d Cir. 1987).

          In his Rule 60(b) motion, Appellant asserts that he mailed the filing fee to the

District Court, but that the Clerk’s Office returned the fee to him because it was the

wrong amount. Appellant asserts that he submitted the correct filing fee and that the

District Court’s Clerk’s Office erred in thinking that the filing fee was for an appeal.

Appellant’s motion also asserts that his claims were not frivolous, and, therefore, his

                                                2
action should not have been dismissed.

       Regardless of whether the District Court mistakenly dismissed the complaint for

Appellant’s failure to pay the filing fee, relief under Rule 60(b) was not justified.

Appellant’s complaint seeks an injunction ordering the Appellees to turn over two

photographs that were not produced at his criminal trial in 1988. Appellant alleges that

the Appellees, by withholding the evidence, violated his constitutional right to due

process by depriving him of the “opportunity to make a conclusive showing of actual

innocence . . .” (Appellant’s Compl. 5).

       Appellant has already unsuccessfully raised this constitutional claim in a prior

habeas proceeding. E.D. Pa. Civ. No. 99-cv-5225. Furthermore, in Appellant’s habeas

proceeding, he filed a motion for discovery requesting the two photographs, which the

District Court denied. Id. We reviewed Appellant’s habeas claims and declined to issue

a certificate of appealability. C.A. 00-1316. Because Appellant’s action is seeking to

challenge the same constitutional claim from his previous habeas proceeding, i.e.,

whether the Appellees’ violated his Due Process right by failing to produce the two

photographs, the District Court should have construed his action as a second or successive

habeas petition. See 28 U.S.C. § 2244.     Appellant has not received permission from this

Court to file a second or successive habeas petition. § 2244(3)(A). Accordingly, the

District Court lacked jurisdiction to consider Appellant’s action and did not abuse its




                                              3
discretion in denying Appellant’s Rule 60(b) motion.1

      For the foregoing reasons, we will affirm the judgment of the District Court.




  1
    To the extent that a certificate of appealability (“COA”) would be required for this
appeal, we would decline to issue a COA for the reasons stated herein. See 28 U.S.C. §
2253(c).

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