New opinion — court allows belated re-trial of a habeas winner

Wilson v. Secretary PA DOC — habeas corpus — affirmance — Hardiman

Today’s lone opinion involves a rare and interesting issue of habeas law.

The petitioner here “holds the remarkable distinction of having received writs of habeas corpus vacating not one, but two murder convictions.” First, in 2004, he got the district court to vacate his conviction for killing Swift. The court granted a conditional writ, vacating the conviction but allowing the Commonwealth to retry him within 180 days.

The prosecution did not retry Wilson for the Swift murder within 180 days, and Wilson remained in prison while Wilson continued to challenge his other murder conviction. That challenge succeeded too:  in 2009, the Third Circuit upheld the grant of relief in the second murder. (The two errors warranting relief were independent: Batson in the first case, Brady in the second. That’s depressing.)

Then, in 2010, the Philly DA moved to retry Wilson for the Swift murder. Wilson sought to block retrial in two ways: by moving to enforce the Swift mandate, and by seeking an unconditional writ under Fed. R. Civ. P. 60(b). The district court denied both requests, but Wilson appealed only the 60(b) issue.

Today, the Third Circuit affirmed, holding that Wilson was not entitled to 60(b) relief because he did not exhaust state remedies. The panel expressly created a circuit split with the Sixth Circuit on this point.

Joining Hardiman were Ambro and Greenaway. Arguing counsel were the formidable Michael Wiseman for Wilson and Thomas Dolgenos for the Philly DA.