WHITE v. VAUGHN, et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 2/7/18. 2/8/18 ENTERED AND COPIES MAILED AND EMAILED TO COUNSEL.(jaa, ) Modified on 2/8/2018 (jaa, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DONALD VAUGHN, et al.
February 7 , 2018
Petitioner Michael White has filed an “Independent Action for Relief from Order Denying
Section 2254 Habeas Corpus or, alternatively, for relief under Rule 60 F.R.Civ.P.” (“Rule 60
Motion”), in which he seeks relief from our August 8, 1995 Order dismissing his § 2254 habeas
petition. Specifically, he contends that we erred in dismissing a prosecutorial misconduct claim
grounded on a violation of Brady v Maryland, 373 U.S. 83 (1963), because that claim was
procedurally defaulted. For the following reasons, Petitioner’s Rule 60 Motion is dismissed in
part and denied in part.
In 1977, following a jury trial in the Philadelphia Court of Common Pleas, Petitioner was
convicted of second degree murder, robbery, and conspiracy, for which he received a mandatory
life sentence. The charges arose out of the armed robbery and murder of a variety store manager,
Georgell Lewis. Although Petitioner was present at the murder, he maintained that he was not the
shooter, and he sought to establish that Lewis was a drug dealer and that the actual shooter was a
drug addict who was in a dispute with Lewis over drugs and money. The prosecution, however,
denied that Lewis was a drug dealer and represented to the court and defense counsel that Lewis
had no arrest record. Consequently, Petitioner never obtained any arrest records for Lewis. It
was subsequently determined that such records existed and reflected arrests for drug crimes.
Petitioner filed a direct appeal and a state court petition for collateral relief, but his
conviction was affirmed and his petition for collateral relief was denied. Commonwealth v.
White 415 A.2d 399 (Pa. 1980) (affirming judgment of sentence); Commonwealth v. White, 508
A.2d 344 (Pa. Super. Ct. 1986) (table) (affirming denial of petition for collateral relief). In 1991,
Petitioner filed a second petition for collateral relief pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq. Among other arguments, Petitioner claimed in his
PCRA petition that he was denied due process at trial because the prosecution failed to reveal that
Lewis had an arrest record that included drug crimes. Petitioner also filed a petition in the state
court to bar re-prosecution, alleging that the prosecutor had intentionally suppressed Lewis’s arrest
record in violation of Brady.
See Brady, 373 U.S. at 87 (holding that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution”). On March 19, 1993, the PCRA Court entered an order vacating Petitioner’s
judgment of sentence and barring re-prosecution, concluding, inter alia, that the prosecution at
Petitioner’s trial had misrepresented, and failed to disclose, Lewis’s arrest record in violation of
Brady, and that this misconduct had denied Petitioner due process and a fair trial.
Commonwealth ex rel. Michael White v. Vaughn, Jan. Term 1977, Nos. 2333-37 (Phila. Cty. Ct.
Common Pleas Mar. 19, 1993).
This victory, however, was short-lived. On June 29, 1993, the Pennsylvania Superior
Court reversed the PCRA Court’s order, holding that Petitioner had waived his claim concerning
nondisclosure of Lewis’s arrest record by failing to raise it on direct appeal.1 Commonwealth v.
Although it found the Brady claim to be waived because it was not raised on direct
appeal, the Superior Court also stated the following in a footnote (“footnote three”):
We note that there is no indication that the witness used at the PCRA hearing to
White, No. 903 Philadelphia 1993, slip op. at 5-6 (Pa. Super. Ct. June 29, 1993) (citing 42 Pa.
Cons. Stat. § 9544(b) (“[A]n issue is waived if the petitioner could have raised it but failed to do so
. . . on appeal or in a prior state postconviction proceeding”), and 42 Pa. Cons. Stat. § 9543(a)(3))
(requiring a petitioner seeking PCRA relief to plead and prove that the issue he raises has not been
waived)). It further concluded that even if Petitioner were able to establish that the records were
improperly withheld and that he should have been able to use them to establish that he was not the
shooter, such proof would not would not establish his actual innocence, because he had admitted to
being a participant in the armed robbery in which the shooting occurred, and his presence at the
murder scene was therefore sufficient to support a conviction of second-degree felony murder.
Id. at 8. Consequently, the court declined to consider Petitioner’s waived claim pursuant to a
PCRA provision that allowed it to consider a waived claim if the alleged error resulted in the
conviction of an innocent individual (the “relaxed waiver doctrine”). Id. at 7-8 (citing 42 Pa.
Cons. Stat. § 9543(a)(3) (1988)).2
Thereafter, Petitioner commenced a pro se § 2254 habeas action, and asserted, inter alia, a
claim of prosecutorial misconduct based on the prosecution’s failure to disclose Lewis’s arrest
establish that Lewis had an arrest record was not available for trial. If it was so
“crucial” to [Petitioner’s] defense to establish that Lewis was a drug-dealer and if
Lewis regularly sold drugs from [the variety store], there must have been any
number of witnesses to establish this fact in 1977. The district attorney cannot be
faulted for the laziness of defense counsel in failing to investigate this matter and
establish that Lewis was a drug dealer.
Commonwealth v. White, No. 903 Philadelphia 1993, slip op. at 6 n.3 (Pa. Super. Ct. June 29,
1993) (“White Super. Ct. Op.”).
The PCRA provision on which the Superior Court relied in this regard was repealed in
1995, and the Pennsylvania Supreme Court subsequently held that “to effectuate the terms of the
PCRA and in keeping with principles of fairness, finality and efficient judicial administration,
review under the relaxed waiver doctrine is no longer available in PCRA cases.” Commonwealth
v. Williams, 732 A.2d 1167, 1177 (Pa. 1999) (citing Commonwealth v. Albrecht, 720 A.2d 693,
700 (Pa. 1998)).
record pursuant to its obligations under Brady. On March 3, 1995, United States Magistrate
Judge Diane M. Welsh issued a Report and Recommendation (“R&R”) in which she
recommended that this court deny Petitioner’s prosecutorial misconduct claim based on
procedural default. In that regard, she recommended that the Superior Court’s holding that the
prosecutorial misconduct claim had been waived was “a clear expression of reliance on an
adequate and independent state procedural rule and[, therefore] bar[red] habeas review.” White
v. Vaughn, Civ. A. No. 94-6598, R&R at 6 (E.D. Pa. Mar. 3, 1995) (citing Harris v. Reed, 489 U.S.
255, 263 (1989)); see also Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (stating that a district
court “normally cannot review a federal claim for post-conviction relief that has already been
rejected by a state court on the basis of an independent and adequate state procedural rule”
(citations omitted)). Magistrate Judge Welsh also correctly noted that a federal court may
nevertheless review a § 2254 claim that has been procedurally defaulted if the petitioner
establishes either (1) cause for the default and actual prejudice, or (2) that the failure to consider
the claim would result in a “fundamental miscarriage of justice.” White, R&R at 7 (citing
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991)); see also Norris v. Brooks, 794 F.3d 401,
404 (3d Cir. 2015). However, she recommended that Petitioner had failed to allege cause and
prejudice, and could not demonstrate that “a fundamental miscarriage of justice [would] ensue if
the defaulted claim [was] not reviewed.” White, R&R at 7, 9.
On August 8, 1995, we approved and adopted the R&R and dismissed Petitioner’s habeas
petition with prejudice. Thereafter, the United States Court of Appeals for the Third Circuit
denied Petitioner’s application for a certificate of probable cause on February 13, 1996, and the
United States Supreme Court denied certiorari in October, 1996.
Relying on Federal Rules of Civil Procedure 60(b) and 60(d), Petitioner argues in his Rule
60 Motion that this court’s dismissal of the Brady claim in his habeas petition based on procedural
default was erroneous.3
“Rule 60(b) allows a party to seek relief from final judgment, and request reopening of his
case, under a limited set of circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).
Here, Petitioner relies on two subsections of Rule 60(b): 60(b)(3) and 60(b)(6). Rule 60(b)(3)
permits the court to relieve a party from final judgment based on “fraud . . . , misrepresentation, or
misconduct by [the] opposing party.” Fed. R. Civ. P. 60(b)(3). Rule 60(b)(6) is a catch-all
provision that permits a court to award relief for ”any other reason that justifies relief,” Fed. R.
Civ. P. 60(b)(6), but has been interpreted narrowly as applying only in “extraordinary
circumstances where, without such relief, an extreme or unexpected hardship would occur.”
To the extent that Petitioner argues that we erred in finding his claim to be procedurally
defaulted, the Rule 60 Motion is an appropriate vehicle for his claims. Gonzalez, 545 U.S. at 532
& n.4 (explaining that a proper Rule 60(b) motion attacks “some [alleged] defect in the integrity of
the federal habeas proceeding,” such as the court’s failure to reach the merits of a claim based on
procedural default). However, Petitioner also argues that his “conviction for robbery and second
degree murder should be reversed because it is based on the knowing use of perjured testimony,
and the Petitioner is actually, factually innocent.” (Second Suppl. to Rule 60 Mot., Docket No.
31, at 7-8; see also Suppl. to Rule 60 Mot., Docket No. 30, at 7 (arguing that “the conviction should
be reversed because it is based on the knowing use of perjured testimony”). Such claims, which
challenge the validity of Petitioner’s criminal conviction, cannot be raised pursuant to Rule 60(b),
and we consider these aspects of the Rule 60(b) Motion to constitute a successive habeas petition.
Pridgen v. Shannon, 380 F.3d 721, 727 (3d. Cir. 2004) (“[W]hen the Rule 60(b) motion seeks to
collaterally attack the petitioner’s underlying conviction, the motion should be treated as a
successive habeas petition.”) Under the Antiterrorism and Effective Death Penalty Act, a
prisoner may not file a second or successive habeas motion without first seeking and receiving
permission from the Court of Appeals. 28 U.S.C. § 2244(b)(3)(A). Petitioner has not obtained
permission from the Third Circuit to file these new challenges to his conviction. Accordingly, we
do not have subject matter jurisdiction over these claims, and we dismiss them on that basis. See
Robinson v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002).
United States v. Doe, 810 F.3d 132, 152 (3d Cir. 2015) (quoting Cox, 757 F.3d at 120). Such
extraordinary circumstances “will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535.
All Rule 60(b) motions are subject to a strict timeliness requirement, which states that
petitioners must file such motions “within a reasonable time -- and for reasons (1), (2), and (3), no
more than a year after the entry of the judgment or order or the date of the proceeding.” Fed. R.
Civ. P. 60(c)(1). Here, Petitioner filed his Rule 60(b) Motion more than twenty years after entry
of final judgment. Accordingly, to the extent that the Motion relies on Rule 60(b)(3), it is plainly
untimely as it was filed well more than a year after the entry of judgment. Id. We therefore deny
the Motion as untimely to the extent that it relies on Rule 60(b)(3).
To the extent that the Motion relies on Rule 60(b)(6), it is subject to the requirement that it
be filed “within a reasonable time.” Fed. R. Civ. P. 60(c). While “a reasonable time” is not
defined, a Rule 60(b)(6) motion filed “more than a year after final judgment is generally
considered untimely unless ‘exceptional circumstances’ justify the delay.” Gray v. Kerestes, Civ.
A. No. 11-3349, 2011 WL 3648064, at *2 (E.D. Pa. Aug. 17, 2011) (quoting Gordon v. Monoson,
239 F. App’x 710, 713 (3d Cir. 2007)). Petitioner appears to take the position that “exceptional
circumstances” make his Rule 60(b)(6) request timely because he filed his Motion “within a
reasonable time” after two Supreme Court decision on which he relies: Martinez v. Ryan, 566 U.S.
1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), both of which expanded the grounds on
which a petitioner can establish “cause” to excuse a procedural default of a claim of
ineffectiveness of trial counsel.4 See Cox, 757 F.3d at 115-116 (stating that a Rule 60(b)(6)
Martinez and Trevino modified the rule set forth in the Supreme Court’s decision in
Coleman v. Thompson, 501 U.S. 722 (1991), which held that “error by counsel in state
post-conviction proceedings could not serve as ‘cause’ sufficient to excuse a procedural default of
a petitioner’s [ineffective assistance of trial counsel] claim.” Cox, 757 F.3d at 119 (citing
Coleman, 501 U.S. at 752-54). Martinez held that errors by counsel in state post-conviction
motion based on Martinez must be “brought within a reasonable time”). However, in spite of
Petitioner’s stated reliance on Martinez and Trevino, these cases have no applicability here, as we
found that Petitioner had not established cause to excuse his procedural default of a prosecutorial
misconduct claim, not a trial counsel ineffectiveness claim, and Martinez and Trevino only address
the grounds to establish cause in connection with claims concerning trial counsel ineffectiveness.5
Accordingly, Petitioner’s reliance on Martinez and Trevino to explain his twenty-year delay in
filing his Rule 60(b)(6) request is meritless, and we conclude that his long-delayed Rule 60(b)(6)
request was not brought “within a reasonable time.”6 Fed. R. Civ. P. 60(c). Consequently, we
proceedings can constitute cause for the procedural default of an ineffectiveness claims under
circumstances in which a state prohibits ineffectiveness claims from being raised on direct appeal
and, instead, requires them to be raised for the first time in an initial review collateral proceeding.
Martinez, 566 U.S. at 8-9. Thereafter, Trevino added that counsel’s ineffectiveness in
post-conviction proceedings may also be cause for a procedural default of a trial counsel
ineffectiveness claim in circumstances in which “the state procedural framework . . . makes it
highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a
claim of ineffective assistance of trial counsel on direct appeal.” 569 U.S. at 429.
Petitioner seems to suggest that Martinez and Trevino apply because he now wants to
assert a new trial counsel ineffectiveness claim, grounded in footnote three of the Superior Court’s
June 29, 1993 opinion, which appeared to blame trial counsel for failing to more aggressively
pursue Lewis’s arrest record. See supra n.1. However, Martinez and Trevino do not authorize a
petitioner to bring a new ineffectiveness claim in a Rule 60(b) motion. Rather, as explained
above, they merely provide a petitioner with a new basis on which to argue that a previously-raised
ineffectiveness claim should not have been dismissed as procedurally defaulted. See supra n.4.
Even assuming arguendo that Martinez and Trevino afforded Petitioner some basis on
which to argue that there was “cause” for his procedural default of his prosecutorial misconduct
claim, his Rule 60(b)(6) would be untimely under the “reasonable time” standard in Rule 60(c).
Indeed, both decisions were issued more than four years before Petitioner filed his Rule 60(b)
Motion in July of 2017, with Martinez decided on March 20, 2012, and Trevino decided on May
28, 2013, and Petitioner offers no explanation for his delay in seeking relief pursuant to their
holdings. See Moolenaar v. Gov’t of the V.I., 822 F.2d 1342, 1348 (3d Cir. 1987) (holding that
60(b)(6) motion based on an intervening change in law filed two years after operative legal
decision was not filed within a “reasonable time”); Ortiz v. Pierce, Civ. A. No. 08-487, 2014 WL
3909138, at *2 (D. Del. Aug. 11, 2014) (concluding that “waiting almost two full years after
Martinez to file [a 60(b)(6)] Motion does not satisfy the ‘reasonable time’ requirement” (citations
deny Petitioner’s Motion as untimely insofar as it relies on both Rule 60(b)(3) and 60(b)(6).7
Petitioner also argues that he is entitled to relief pursuant to Rule 60(d)(3), which
recognizes the court’s authority to “set aside a judgment for fraud on the court.” Fed. R. Civ. P.
60(d)(3). “In order to meet the necessarily demanding standard of proof of fraud upon the court[,]
. . . there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the
court itself; and (4) in fact deceives the court.” Herring v. United States, 424 F.3d 384, 386-87
(3d Cir. 2005). Here, Petitioner appears to contend that the prosecution committed a qualifying
fraud on the state court when it represented to the trial court that Lewis had no arrest record when,
in fact, he had been arrested several times. However, a Rule 60(d)(3) “fraud on the court” claim is
a claim for fraud on the federal court, not the state court, and, thus, a petitioner “cannot use [Rule
60(d)(3)] to allege fraud upon the state court in [an] underlying criminal proceeding.” Reardon v.
Leason, 465 F. App’x 208, 210 (3d Cir. 2012); see also McKeown v. New York, Civ. No. 08-2391,
We further note that Petitioner’s Rule 60(b)(6) request seeking to set aside our judgment
appears to argue that we erred in concluding that his Brady claim was procedurally defaulted,
because the Superior Court erroneously concluded that his Brady claim was waived. In this
regard, Petitioner again focuses on footnote three in the Superior Court’s opinion, which suggested
that trial counsel may have been ineffective in failing to pursue evidence of Lewis’s arrests more
aggressively, see supra n.1; contends that this footnote provided the rationale for the Superior
Court’s conclusion that the Brady claim was waived; and argues that the Superior Court, in the
footnote, improperly imposed a duty on him “to scavenge for hints of undisclosed Brady material,”
when the “duty to disclose under Brady is absolute [and] does not depend on defense counsel’s
actions.” Rule 60 Mot. at 16 (quoting Dennis v. Secretary, Pa. Dept. of Corrections, 834 F.3d
263, 290 (3d Cir. 2016)). This argument lacks merit for at least two reasons. First, the footnote
in the Superior Court’s opinion was dicta and, in fact, did not provide the reasoning for the
Superior Court’s finding of waiver, which was based on trial counsel’s failure to raise the Brady
claim on direct appeal, not his failure to pursue evidence of Lewis’s arrests more aggressively
prior to trial. White Super. Ct. Op. at 6-7. Second, the Superior Court’s waiver determination
was based on its interpretation of state law, and “a state court’s interpretation of state law . . . binds
a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citations
omitted). Accordingly, even if Petitioner’s Rule 60(b)(6) Motion were not untimely, we would
find that it does not raise a meritorious claim.
2010 WL 4140421, *2 n.13 (S.D.N.Y. Oct. 21, 2010) (“[t]he reason [plaintiff] invoked Rule
60(d)(3) is a mystery because any fraud that was perpetrated was perpetrated on the [state]
Surrogate’s Court, not this Court”), aff’d, 444 F. App’x 508 (2d Cir. 2012). Moreover, we
understand Petitioner’s fraud claim to be a challenge to his underlying criminal conviction, and we
do not have authority “to overturn a state criminal conviction obtained by fraud, outside of power
authorized by statute; i.e. through a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.”
Wells v. King, 340 F. App’x. 57, 58 (3d Cir. 2009). Accordingly, we cannot provide the relief
Petitioner seeks through the vehicle of Rule 60(d)(3), and, to raise these claims, Petitioner must
instead seek permission from the Third Circuit to raise them in a second or successive habeas
petition. See supra n.3. We therefore dismiss Petitioner’s Rule 60 Motion for lack of subject
matter jurisdiction to the extent that it relies on Rule 60(d)(3).
For all of these reasons, we dismiss Petitioner’s Rule 60 Motion for lack of subject matter
jurisdiction insofar as it seeks to challenge Petitioner’s state conviction and sentence, and we deny
the remainder of the Motion as untimely.
BY THE COURT:
/s/ John R. Padova, J.
John R. Padova, J.
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