RHONE v. LARKINS, et al

Filing 37

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 6/7/16. 6/8/16 ENTERED AND COPIES MAILED, E-MAILED.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH RHONE
v.
DAVID H. LARKINS, et al.

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:
:
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:

CIVIL ACTION

NO. 99-743

MEMORANDUM
Bartle, J.

June 7, 2016
Before the court is an “independent action for relief

from order denying Section 2255 [sic] [2254] motion or,
alternatively, for relief under Rule 60(d) F.R.Civ.P.” filed by
counsel for petitioner Joseph Rhone (“Rhone”).
In May 1991, a jury in the Pennsylvania Court of
Common Pleas for Philadelphia convicted Rhone of first degree
murder, criminal conspiracy, and possession of an instrument of
crime for the murder of Herschel Williams (“Williams”) in
November 1975.

Although Rhone was taken into custody within

minutes of the 1975 shooting, his trial was delayed until 1991
because, following a suppression hearing at which the court
determined statements Rhone made to the police could be used
against him at trial, Rhone fled while free on bail.
Rhone was represented at trial by Norris Gelman
(“Gelman”).

At trial, the Commonwealth offered evidence that

“Rhone and a co-defendant, Robert Hoskins ran toward Williams

and emptied their guns into his body” as he was loading his two
young children into his car.

See Commonwealth v. Rhone, No.

2750, at 1 (Pa. Ct. Comm. Pleas 1996).

Rhone and Hoskins then

fled in a get-away car driven by another co-defendant, Lonnie
Dawson.

The three men were arrested when “[a] short time later

a Police Officer, having been alerted by Police Radio, saw the
get-away car with the three defendants on the expressway.”
id. at 2.

See

The Commonwealth introduced evidence that Rhone made

several statements to the police after he was arrested:
[i]n the first statement, given by
defendant, he stated that he was just a
passenger in a car driving from South
Philadelphia to Germantown with nothing
unusual occurring. Later, the defendant was
rewarned and admitted being at the murder
scene and hearing gunshots. The defendant
also admitted that one co-defendant exited
the car before he heard the gunshots.
However, the defendant maintained that he
never saw a gun and stayed in the car
reading a newspaper.
Post-verdict motions were unsuccessful, and Rhone was sentenced
to life in prison plus seven and a half to fifteen years.
Gelman filed a direct appeal of the conviction on
behalf of Rhone to the Pennsylvania Superior Court.

He argued

that the Commonwealth and its witnesses made inappropriate
comments to the jury at trial, that the trial judge erred in
admitting certain evidence and in instructing the jury, and that
-2-

the verdict was against the weight of the evidence.

The

Superior Court considered the merits of these allegations and
affirmed the conviction because “ample evidence of guilt was
presented at trial.”

See Commonwealth v. Rhone, 619 A.2d 1080,

1081 (Pa. Super Ct. 1993).

The Pennsylvania Supreme Court

denied Rhone’s request for allowance of an appeal.

See

Commonwealth v. Rhone, 627 A.2d 731 (1993).
In June 1995, Rhone filed a pro se petition for relief
under the Pennsylvania Post Conviction Relief Act (“PCRA”),
42 Pa. Cons. Stat. § 9541 et seq.

He was appointed new counsel,

Donald M. Padova, who filed an amended PCRA petition asserting
that Gelman had been ineffective at trial in failing to object
to or call a mistrial because of prejudicial comments by the
prosecutor.

He also alleged that Gelman was ineffective in

failing to call a police officer who testified in a prior
proceeding and would have impeached trial testimony concerning
the “Jeff” cap that Rhone was wearing when arrested.

He

asserted that Gelman should have argued that it was error to
exclude testimony concerning the alleged beating of a codefendant.

Finally, he claimed that Gelman should have raised

his own ineffectiveness on appeal.

The PCRA evaluated Rhone’s

claims on the merits and found that they were not meritorious.
See Commonwealth v. Rhone, No. 2750, at 6 (Pa. Ct. Comm. Pleas
-3-

1996).

The Superior Court affirmed, and the Pennsylvania

Supreme Court denied Rhone’s request for an appeal.
In May 1998, Rhone filed a second pro se PCRA petition
alleging ineffective assistance of trial counsel and PCRA
counsel.

This petition was dismissed as untimely.
In February 1999, Rhone filed a federal petition in

this court asserting ten claims under 28 U.S.C. § 2254. 1
1.

Rhone alleged, in full:
A. Ground One: Did the prosecution deprive
petitioner of a fair trial and due process
when it was permitted to infer to the jury
that the motive for the murder was drugs,
when there was know [sic] proof that any
such motive existed?
B. Ground Two: Did the trial court commit
constitutional reversable [sic] error by
permitting the prosecution to repeatedly
refer to petitioner reaching for a gun at
the time of his arrest over counsel’s
objections to the admissibility of the
evidence?
C. Ground Three: Did the trial court
commit constitutional error by not
permitting the defense to put a witness on
the stand concerning police brutality
directly involved in this case and also in
not allowing the petitioner to challenge the
voluntariness of his statement in front of
the jury?
D. Ground Four: Did the prosecution commit
prosecutorial misconduct of a constitutional
dimension and deprive petitioner of a fair
trial and due process when the prosecution
informed the jury that there is a witness
-4-

The

first five claims alleged both that the prosecution committed
misconduct and that the trial court erred in allowing certain
evidence to be admitted.

The next four claims alleged that

trial counsel was ineffective.

In particular, Rhone asserted

that Gelman was ineffective in failing to object to comments
made by the Commonwealth at trial and in failing to call “a
known witness to impeach the testimony of a key witness.”
who had not testified but who if she had,
would have given inculpatory evidence?
E. Ground Five: Did the prosecutor commit
prosecutorial misconduct by misstating
evidence and deprive petitioner of due
process and a fair trial?
F. Ground Six: Was petitioner deprived of
due process when trial counsel failed to
object to prejudicial and inflammatory
remarks during closing argument?
G. Ground Seven: Was trial counsel
constitutionally ineffective for failure to
call a known witness to impeach the
testimony of a key witness?
H. Ground Eight: Was trial counsel
constitutionally ineffective for failure to
object to the district attorney opening
statement that petitioner was reaching for a
gun at the time of his arrest?
I. Ground Nine: Was trial counsel
constitutionally ineffective for failure to
object [sic] the prosecution’s improper and
prejudicial statements before the jury?
J. Ground Ten: Did petitioner exhaust all
his state remedies?
-5-

His

tenth claim asserted that the first nine claims had been
procedurally exhausted.

In this regard, he claimed that PCRA

counsel was ineffective in not pursuing Gelman’s ineffectiveness
as a ground for relief in the amended PCRA petition.
In an August 1999 Report and Recommendation (“R & R”),
the magistrate judge recommended that this court deny Rhone’s
§ 2254 petition without a hearing.

The R & R noted that the

first eight claims had not been presented to the Pennsylvania
courts on direct appeal or in his amended PCRA petition.
Rhone was not entitled to relief on these grounds.

Thus,

Yet, the

R & R nonetheless considered Rhone’s claims that trial and PCRA
counsel were ineffective on the merits.

The R & R explained

that the claims that trial counsel was ineffective lacked merit.
The R & R determined that PCRA counsel had reasonably exercised
his professional judgment in pursuing only some of Rhone’s
claims in the amended PCRA petition.

It also rejected Rhone’s

claims of actual innocence.
In September 1999, the court adopted the R & R of the
Magistrate Judge denying Rhone’s § 2254 petition.
Appeals denied a certificate of appealability.

Our Court of

Rhone filed a

third PCRA petition in May 2005, which was dismissed as
untimely.

-6-

I.
A state prisoner may seek relief in federal court if
he believes that his incarceration violates federal law.
28 U.S.C. § 2254.

See

However, the Antiterrorism and Effective

Death Penalty Act of 1996 limits the power of a federal court to
award relief to a state prisoner who has filed a successive
habeas corpus petition.
(2001).

See Tyler v. Cain, 533 U.S. 656, 660

Claims asserted in a second or successive habeas

petition under § 2254 must be dismissed without prejudice if
they were presented in a previous petition. 2
2244(b)(1).

See 28 U.S.C. §

In addition, a claim that was not previously

presented must be dismissed without prejudice unless it relies
on a new and retroactive rule of constitutional law, or new
facts showing a high probability of actual innocence.

See 28

U.S.C. § 2244(b)(2); Gonzalez v. Crosby, 545 U.S. 524, 529-30
(2005).
Likewise, habeas relief is not available unless “the
applicant has exhausted the remedies available in the courts of
the State.”

See 28 U.S.C. § 2254(b)(1)(A).

A district court

“normally cannot review a federal claim for post-conviction
relief that has already been rejected by a state court on the
2. The petitioner must obtain permission to file a second or
successive application from the Court of Appeals. See 28 U.S.C.
§ 2244(b)(3).
-7-

basis of an independent and adequate state procedural rule.”
See Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014).

Claims not

previously presented to the state courts are procedurally
defaulted.
Nonetheless, both successive and procedurally
defaulted claims are reviewable by the federal court if the
petitioner demonstrates that there was cause for the default and
prejudice as a result.

See Norris v. Brooks, 794 F.3d 401, 404

(3d Cir. 2015); Cox, 757 F.3d at 119.
In 1999, when this court addressed Rhone’s original
habeas petition, we were bound by the rule announced in Coleman
v. Thompson, 501 U.S. 722 (1991), “that error by counsel in
state post-conviction proceedings could not serve as ‘cause’
sufficient to excuse procedural default of a petitioner’s
claim.”
752-54).

See Cox, 757 F.3d at 119 (citing Coleman, 501 U.S. at
In 2012, the U.S. Supreme Court changed course.

It

held that attorney errors in initial review collateral
proceedings may qualify as cause for a procedural default where:
(a) the default was caused by ineffective
assistance of post-conviction counsel or the
absence of counsel (b) in the initial-review
collateral proceeding (i.e., the first
collateral proceeding in which the claim
could be heard) and (c) the underlying claim
of trial counsel ineffectiveness is
“substantial,” meaning “the claim has some
merit,” analogous to the substantiality
-8-

requirement for a certificate of
appealability.
Cox, 757 F.3d at 119 (emphasis added) (citing Martinez v. Ryan,
132

S. Ct. 1309, 1316-18 (U.S. 2012)).

Thus, where a

petitioner seeks relief by a successive petition or in spite of
a procedural default, the default must have been caused by the
failure of post-conviction counsel in the initial review
collateral proceeding to assert a meritorious challenge to the
effectiveness of trial counsel.
A year later, in Trevino, “the Supreme Court clarified
that the Martinez rule applied not only to states that expressly
denied permission to raise ineffective assistance claims on
direct appeal . . . but also to states in which it was
‘virtually impossible,’ as a practical matter, to assert an
ineffective assistance claim before collateral review.”

See

Cox, 757 F.3d at 119 (citing Trevino v. Thaler, 133 S. Ct. 1911,
1915 (2013)).

Where a “state procedural framework, by reason of

its design and operation, 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, [the] holding in Martinez applies.”
133 S. Ct. at 1921.

See Trevino,

We will assume for present purposes that

our Court of Appeals would apply Martinez to Pennsylvania
-9-

criminal proceedings that took place prior to Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002).

See Cox, 757 F.3d at 124

n.8.
II.
Counsel for Rhone has submitted a motion entitled
“independent action for relief from order denying Section 2255
[sic] [2254] motion or, alternatively, for relief under Rule
60(d) F.R.Civ.P.”

The motion does not clearly state on what

grounds Rhone seeks relief, but it makes reference to Martinez,
Rule 60(d)(1), and Rule 60(d)(3).

It also claims that relief

should be granted because Rhone is actually innocent.

Rhone

relies heavily on the alleged ineffectiveness of trial and PCRA
counsel.

He claims that the trial court engaged in various

errors and that the Commonwealth made prejudicial comments at
trial.
We begin with Rhone’s claims that Martinez provides an
avenue for relief.

Our Court of Appeals has recognized that

Rule 60(b)(6) of the Federal Rules of Civil Procedure is an
appropriate vehicle to pursue relief under Martinez.
757 F.3d at 115.

See Cox,

Rule 60(b)(6) permits a court to award relief

from a final judgment for “any other reason that justifies
relief.”

See Fed. R. Civ. P. 60(b)(6).

“[C]ourts are to

dispense their broad powers under 60(b)(6) only in extraordinary
-10-

circumstances where, without such relief, an extreme and
unexpected hardship would occur.”

United States v. Doe, 810

F.3d 132, 152 (3d Cir. 2015) (quoting Cox, 757 F.3d at 120).
“The Supreme Court has said that ‘[s]uch circumstances will
rarely occur in the habeas context.’”

Norris, 794 F.3d at 404

(quoting Gonzalez, 545 U.S. at 535).
We apply “a flexible, multifactor approach to Rule
60(b)(6) motions . . . that takes into account all the
particulars of a movant’s case.”
(quoting Cox, 757 F.3d at 122).

See Doe, 810 F.3d at 152
We consider the merits of the

underlying claim of ineffective assistance of trial counsel, the
petitioner’s diligence in seeking relief, the time between the
dismissal of the petitioner’s § 2254 petition and his Rule 60
motion, and the nature of the petitioner’s sentence.
810 F.3d at 152-53.

See Doe,

“Martinez, without more, does not entitle a

habeas petitioner to Rule 60(b)(6) relief.”

Cox, 757 F.3d at

124.
Rhone seeks relief under Martinez, alleging that PCRA
counsel was ineffective in failing to raise trial counsel’s
ineffectiveness in the initial review collateral proceeding.
Relief under Rule 60(b)(6) and Martinez depends on the merits of
the underlying ineffective assistance of counsel claim.
Cox, 757 F.3d at 124.

See

“When 60(b)(6) is the vehicle through
-11-

which Martinez is to be given effect, the claim may well need to
be particularly substantial to militate in favor of equitable
relief.”

See id.

But here, PCRA counsel did in fact assert

that trial counsel was ineffective, and the PCRA court
considered this claim on the merits.

Thus, Martinez, which held

that “[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at
trial,” does not apply in Rhone’s case.

See Martinez, 132

S. Ct. at 1315 (emphasis added).
As the PCRA court explained:
[p]etitioner couche[d] his first argument
under the guise of ineffective assistance of
[trial] counsel stating that Norris E.
Gelman, Esquire, was ineffective for failing
to object to and/or move for a mistrial
and/or obtain judicial rulings following
allegedly improper, prejudicial comments by
the prosecutor during questioning and in his
closing statement.
Commonwealth v. Rhone, No. 2750, at 4 (Pa. Ct. Comm. Pleas
1996).

It concluded that Rhone’s claims “lack arguable merit”

and “counsel will not be found ineffective for failing to make a
frivolous objection or motion.”

See id. at 6.

Rhone is not

entitled to relief under Martinez first because PCRA counsel
raised the issue of trial counsel’s ineffectiveness before the
PCRA court, and second because the PCRA court considered and
-12-

rejected this claim on its merits.

See, e.g., Joseph v. Beard,

2015 WL 1443970, at *4 (E.D. Pa. Mar. 27, 2015).

It is of no

significance that Rhone now alleges that trial counsel committed
additional errors beyond those which he presented to the PCRA
and habeas courts.

Rhone presented ineffective assistance of

trial counsel claims to the PCRA court which were considered and
denied on the merits.

The present motion is a successive

petition and he cannot obtain review under Martinez.
Moreover, we agree with the PCRA court that Rhone’s
claims that trial counsel was ineffective lack merit.

“It is

appropriate for a district court, when ruling on a Rule 60(b)(6)
motion where the merits of the ineffective assistance claim were
never considered prior to judgment, to assess the merits of that
claim.”

Cox, 757 F.3d at 124.

In 1999, in adopting the R & R

by the Magistrate Judge denying Rhone’s habeas petition, this
court determined that trial counsel was not ineffective.

After

finding that many of Rhone’s claims had been procedurally
defaulted, the R & R considered and rejected arguments that
trial counsel was ineffective on the merits.

Rhone cannot now

obtain relief under Martinez because his underlying claims that
trial counsel was ineffective are devoid of all merit.
Martinez, 132 S. Ct. at 1319.

-13-

See

In addition, Rhone’s claim for relief was not “made
within a ‘reasonable time.’”

In re Diet Drugs (Phentermine/

Fenfluramine/Dexfenfluramine) Prod. Liab. Litig., 383 F. App’x
242, 246 (3d Cir. 2010); Doe, 810 F.3d at 152.

Our Court of

Appeals explained that “one of the critical factors in the
equitable and case-dependent nature of the 60(b)(6) analysis
. . . is whether the 60(b)(6) motion under review was brought
within a reasonable time of the Martinez decision.”
757 F.3d at 115–16.

See Cox,

It “warn[ed] — that, unless a petitioner’s

motion for 60(b)(6) relief based on Martinez was brought within
a reasonable time of that decision, the motion will fail.”

See

id. at 116.
The Supreme Court decided Martinez on March 20, 2012.
Yet, Rhone did not file the present motion until December 14,
2015, approximately three and a half years after Martinez was
decided.

We find that Rhone’s motion was not filed within a

reasonable time after Martinez was decided.

See Peterson v.

Brennan, 2015 WL 3631762, at *3 (E.D. Pa. June 10, 2015), aff’d
sub nom. Peterson v. Mahoney, No. 15-2580, at 1 (3d Cir. Oct. 8,
2015); Cox, 757 F.3d at 116.

Rhone has not cited any

“extraordinary circumstances” that justify the three and a half
year delay.

-14-

Rhone also has not set forth any extraordinary
circumstances in support of his claim for relief under Rule
60(b).

Relief is not available where the petitioner has “stated

no conceivable bases for reopening under Rule 60(b)(6)” and does
“not even acknowledge the reasons for most of the [federal
court’s] underlying rulings, let alone set forth anything that
might constitute ‘extraordinary circumstances’ warranting relief
from those rulings.”

See Dougherty v. Advanced Wings LLP, 611

F. App’x 752, 753 (3d Cir. 2015) (citing Cox, 757 F.3d at 120).
III.
We also construe Rhone’s motion as seeking relief
under Rule 60(d)(1) of the Federal Rules of Civil Procedure,
which permits the court to “entertain an independent action to
relieve a party from a judgment, order, or proceeding.”
Fed. R. Civ. P. 60(d)(1).

See

“An independent action brought under

Rule 60(d) is generally treated the same as a motion under Rule
60(b).”

Sharpe v. United States, 2010 WL 2572636, at *2 (E.D.

Pa. June 22, 2010) (citing Nevada VTN v. Gen. Ins. Co. of Am.,
834 F.2d 770, 775 (9th Cir. 1987)).

“[T]he requirements for an

independent action under Rule 60(d)(1) are at least as
stringent” as those for a Rule 60(b)(6) motion.

See United

States v. Brown, 2013 WL 3742444, at *9 (E.D. Pa. July 17, 2013)
(citing United States v. Beggerly, 524 U.S. 38, 46–47 (1998)).
-15-

“In other words, a petitioner cannot relitigate the merits of
his habeas petition under the guise of a Rule 60(d) motion.”
Sharpe, 2010 WL 2572636, at *2.
As under Rule 60(b)(6), relief is available under Rule
60(d)(1) only in extraordinary circumstances where relief is
necessary to “prevent a grave miscarriage of justice.”

See

Jackson v. Danberg, 656 F.3d 157, 166 (3d Cir. 2011) (quoting
Beggerly, 524 U.S. at 47).

The petitioner “must show a

meritorious claim or defense” and “relief under Rule 60(d) is
reserved for the rare and exceptional case where a failure to
act would result in a miscarriage of justice.”

See Sharpe, 2010

WL 2572636, at *2 (citing Beggerly, 524 U.S. at 42–46); Brown,
2013 WL 3742444, at *8-9.
As explained above, Rhone’s claims that trial counsel
was ineffective must fail.

In addition, as discussed above,

Rhone has not supplied any extraordinary circumstances or reason
to believe that a grave miscarriage of justice has occurred in
this case.

Accordingly, we will deny his request for relief

under Rule 60(d)(1).
IV.
Rhone further claims that he is entitled to relief
under Rule 60(d)(3), which authorizes the court to “set aside a
judgment for fraud on the court.”
-16-

See Fed. R. Civ. P. 60(d)(3).

Although generally final judgments cannot be altered, the court
may make an exception pursuant to Rule 60(d)(3) where the
judgment was fraudulently obtained.

See Hazel-Atlas Glass Co.

v. Hartford-Empire Co., 322 U.S. 238, 245 (1944), overruled on
other grounds, Standard Oil Co. of Cal. v. United States, 429
U.S. 17, 18 n.2 (1976).

As our Court of Appeals has explained

“[i]n order to meet the necessarily demanding standard of proof
of fraud upon the court we conclude that 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” supported by “clear, unequivocal and convincing
evidence.”

See Herring v. United States, 424 F.3d 384, 386–87

(3d Cir. 2005); United States v. Burke, 193 F. App’x 143, 144
(3d Cir. 2006).

The fraud “must constitute egregious misconduct

. . . such as bribery of a judge or jury or fabrication of
evidence by counsel.”

See Herring, 424 F.3d at 390 (citations

and internal quotation marks omitted).
For example, in Hazel-Atlas, there was “conclusive”
proof that a party and its attorneys had committed egregious
misconduct by “a deliberately planned and carefully executed
scheme to defraud not only the Patent Office but the Circuit
Court of Appeals.”

See Hazel–Atlas, 322 U.S. at 245-46.

The

party and its attorneys had drafted an article in support of its
-17-

patent claims.

They then fraudulently published the article and

argued to the Patent Office and our Court of Appeals that the
article provided support for their claims as if it had been
written by a third-party.

The Supreme Court held that this was

a fraud on the court.
On the other hand, courts in this district have held
that false answers to interrogatories and perjured testimony
“do[ ] not rise to the level of fraud upon the court.”

See

Advanced Multilevel Concepts, Inc. v. Bukstel, 2014 WL 6907973,
at *9 (E.D. Pa. Dec. 9, 2014) (quoting Petry v. Gen. Motors
Corp., 62 F.R.D. 357, 361 (E.D. Pa. 1974)); Herring, 424 F.3d at
390.
In his pending motion, Rhone appears to assert that
counsel for the Commonwealth committed a fraud in failing to
inform the state trial court in 1991 about:

(1) a 1975

memorandum from the Homicide Division stating that tire
impressions from the car in which Rhone was apprehended “do not
compare favorably with photographs of tire impressions removed
from the scene” and (2) a “show up” following the murder at
which no witness was able to identify Rhone.

He again alleges

that trial counsel was ineffective in failing to object to the
prosecution’s purported misconduct.

However, as the

Commonwealth noted in its responsive brief, we do not have
-18-

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.”

See

Wells v. King, 340 F. App’x 57, 58 (3d Cir. 2009).
In apparent acknowledgment of this, Rhone contends in
his reply brief that the alleged fraud occurred before the
federal court in 1999 when counsel for the Commonwealth failed
to supply the 1975 memorandum to the federal court.

He also

claims that the Commonwealth committed a fraud on the federal
court in failing to inform the court of the 1991 testimony of
Detective Brian Muldoon of the Philadelphia Police Department
Homicide Division at Rhone’s state criminal trial and the 1976
testimony of Carol Impromota, a witness to the murder, at the
trial of co-defendant Lonnie Dawson.
merit.

This argument is without

Just as perjury and false answers to interrogatories

“do[ ] not rise to the level of fraud upon the court,” neither
is counsel’s failure to submit these documents to the federal
court.

See Advanced Multilevel, 2014 WL 6907973 at *9.

In

responding to Rhone’s motion for relief pursuant to § 2254,
counsel for the Commonwealth was under no obligation to submit
these documents.

See Rules Governing Section 2254 Cases in the

United States District Courts, Rule 5; Flamer v. Chaffinch, 774
F. Supp. 211, 215 (D. Del. 1991).
-19-

Aside from briefs and orders

not at issue here, counsel for the Commonwealth was responsible
only for “attach[ing] to the answer parts of the transcript that
[the Commonwealth] considers relevant.”

See Rules Governing

Section 2254 Cases in the United States District Courts, Rule 5.
Certainly, counsel for the Commonwealth cannot have committed
egregious misconduct in failing to submit a document that it was
under no duty to provide.

Accordingly, we will deny Rhone’s

motion for relief under Rule 60(d)(3). 3
V.
Finally, we turn to Rhone’s claim for relief based on
actual innocence.

A habeas petitioner may obtain review of a

procedurally defaulted claim if he has a viable claim of actual
innocence that places the case within the “narrow class of cases
. . . implicating a fundamental miscarriage of justice.”

See

Schlup v. Delo, 513 U.S. 298, 314-15 (1995) (citation omitted).
“[T]he fundamental miscarriage of justice exception seeks to
balance the societal interests in finality, comity, and
conservation of scarce judicial resources with the individual
3. Rule 60(b)(3) provides relief from judgment based on “fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.” See
Fed. R. Civ. P. 60(b)(3). However, “an independent action
alleging fraud upon the court is completely distinct from a
motion under Rule 60(b).” See Herring, 424 F.3d at 389. A
motion pursuant to Rule 60(b)(3), unlike a motion under Rule
60(d)(3), must be brought within one year of entry of judgment.
See Fed. R. Civ. P. 60(c). Rhone’s present motion was filed
nearly twenty-five years after judgment was entered.
-20-

interest in justice that arises in the extraordinary case.”

Id.

at 324.
“A case in which a petitioner seeks to excuse his
procedural default by advancing a claim of actual innocence is
known as a ‘gateway’ case.”

See Houck v. Stickman, 625 F.3d 88,

93 (3d Cir. 2010) (citing Albrecht v. Horn, 485 F.3d 103, 122
(3d Cir. 2007)).

In other words, actual innocence is “not

itself a constitutional claim, but instead a gateway through
which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.”

See Schlup, 513

U.S. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404
(1993)).

It “depends critically on the validity of” the

underlying claims.

See id.

To obtain review based on a theory of actual
innocence, first the petitioner must “support his allegations of
constitutional error with new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence-that was not presented
at trial.”

See Schlup, 513 U.S. at 324.

The petitioner must

“present[ ] evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial.”

See id. at 316.

Where the new evidence raises “sufficient doubt about [the
petitioner’s] guilt to undermine confidence in the result of the
-21-

trial without the assurance that that trial was untainted by
constitutional error” the new evidence meets the “threshold
showing of innocence [to] justify a review of the merits of the
constitutional claims.”

See id. at 317.

“Without any new

evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself sufficient
to establish a miscarriage of justice that would allow a habeas
court to reach the merits of a barred claim.”

Id. at 316.

Second, the petitioner must “show by a preponderance
of the evidence that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.”
U.S. at 327).

See Houck, 625 F.3d at 93 (citing Schlup, 513
In assessing a petitioner’s actual innocence

claim based on new evidence:
the habeas court must consider “‘all the
evidence,’” old and new, incriminating and
exculpatory, without regard to whether it
would necessarily be admitted under “rules
of admissibility that would govern at
trial.”
House v. Bell, 547 U.S. 518, 537-38 (2006).

Then, “[b]ased on

this total record, the court must make ‘a probabilistic
determination about what reasonable, properly instructed jurors
would do.”

See id. at 538.

“The court’s function is not to

make an independent factual determination about what likely
-22-

occurred, but rather to assess the likely impact of the evidence
on reasonable jurors.”

Id.

“[I]t bears repeating that the

Schlup standard is demanding and permits review only in the
‘extraordinary’ case.”

Id.

We need not hold an evidentiary hearing where, after
“assess[ing] the probative force of the newly presented evidence
in connection with the evidence of guilt adduced at trial,” we
find that no reasonable juror would have acquitted the
petitioner in light of the new evidence.

See Schlup, 513 U.S.

at 331-32; Houck, 625 F.3d at 95.
Here, the jury convicted Rhone after a trial at which:
the Commonwealth presented a strong case
based on circumstantial evidence establishing
the petitioner’s guilt. The Commonwealth’s
evidence included a statement by petitioner
that he had been at the murder scene, and
witnesses who could place the car in which
petitioner and his codefendants were
apprehended at the murder scene, identify the
number of individuals in that car, and
identify the hat and other clothing
petitioner and his codefendants were wearing
at the time of the murder.
See R. & R. at 13.

There was substantial circumstantial

evidence to support the jury’s decision to convict Rhone.
Witnesses testified that “three men in a green cadillac” were
responsible for the murder and “[t]wo of the men wore brown
hats; one of the hats was identified as a brown jeff cap.”
-23-

See

Commonwealth v. Rhone, 619 A.2d 1080, 1081 (Pa. Super Ct. 1993).
There was also testimony that “[p]olice stopped a car matching
the description” and “[a]t the time of his arrest [Rhone] was
wearing a brown jeff cap.”

See id.

There was “police testimony

that [Rhone] had been seen the day before, in the same green
cadillac, driving behind the victim’s car.”

See id.

Significantly, Rhone told the police shortly after the shooting
that he was present at the scene of the shooting and heard the
gunshots.

See id. at 1081-82.
Rhone now claims that an absence of eyewitnesses and

physical evidence connecting him to the crime are new evidence.
He contends that:

(1) no one identified him as the perpetrator

at a “show up” after the murder; (2) the green Cadillac in which
he was apprehended contained weapons that did not match the
murder weapon 4; (3) “the shooter wearing the Jeff-Cap” was
identified as a “light brown black male”; and (4) that there was
no physical evidence connecting Rhone to the crime. 5

Even

assuming that these allegations are new evidence, “[w]e do not
4. The murder weapon was found in a street sewer near the scene
of the crime.
5. Rhone also contends that trial counsel erroneously failed to
object to evidence admitted by the prosecution and instructions
administered by the court. Not only were these arguments
already rejected by the state courts and the federal court as
discussed above, but they are legal arguments and not new
evidence of Rhone’s innocence.
-24-

think that a reasonable juror would acquit [the petitioner]
after hearing this evidence, especially in light of all the
other evidence of his guilt.”

See Houck, 625 F.3d at 96-97.

Rhone was wearing a “Jeff” cap when he was arrested, admitted to
being present at the crime scene when the shooting occurred, and
was apprehended shortly after the murder in a green Cadillac
that matched the description of the getaway car.

Rhone cannot

“show that, in light of all the evidence, it is more likely than
not that no reasonable, properly instructed juror would have
convicted him.”

See United States v. Tyler, 732 F.3d 241, 254

(3d Cir. 2013) (citing Bousley v. United States, 523 U.S. 614,
623 (1998)).
Rhone further contends that he could not have
committed the murder because he was apprehended while riding in
a green Cadillac on the Schuylkill Expressway some unspecified
number of minutes after the murder took place.

According to

Rhone, a police officer arrived “[a]t approximately 12:45 pm
. . . at the shooting scene” at 8654 Bayard Street in
Philadelphia, and Rhone was pulled over on the Schuylkill
Expressway at 1:07 P.M.

(Emphasis added).

He claims that this

timeline proves that he could not have been at the murder scene
when the murder took place.

This argument is unavailing.

officer estimated that he arrived at the murder scene at
-25-

The

“approximately 12:45 pm.”

The murder took place at some point

before the officer arrived at the scene.

Thus, Rhone had

approximately twenty minutes, if not more, to kill Williams and
flee the scene in the green Cadillac before being apprehended in
a green Cadillac on the Schuylkill Expressway.
In the brief accompanying his motion, Rhone claims
that “it would be almost impossible for the shooting to occur at
12:52 and the police to spot a green Cadillac on the Expressway
at approximately 12:52.”
and unclear.

His timeline argument is inconsistent

We are not persuaded by his argument, nearly forty

years later, that this uncertain timeline of events proves that
he could not have been at the murder scene.

Rhone told police

shortly after the shooting that he was present at the scene of
the shooting and heard the gunshots.

In light of his statement

to the police and other evidence placing him at the scene of the
murder, we cannot say that no reasonable juror would convict
Rhone, even if Rhone were able to present his “new” evidence.
Additionally, Rhone claims that a memorandum by the
Homicide Division investigating the murder in November 1975 is
new evidence that entitles him to habeas relief.

He cites a

statement in that document that tire impressions of the green
Cadillac in which he was apprehended “do not compare favorably
with photographs of tire impressions removed from the scene.”
-26-

Rhone argues that if his trial counsel had elicited testimony
from the memorandum’s author, the outcome at trial would have
been different.

We disagree.

In light of all the evidence of

Rhone’s guilt, including his statement to police that he was
present at the scene of the murder, this testimony concerning
the tire tracks, in our view, would not persuade a reasonable
juror to acquit.

As in Houck, the memorandum “is of limited

value as it is unlikely it would convince a reasonable juror
that [the petitioner] could not have been one of [the victim’s]
assailants.”

See Houck, 625 F.3d at 96.

Rhone does not even argue “that no reasonable juror
would convict him after considering the newly supplemented
record.”

See id. at 95.

Instead, Rhone contends only that this

evidence creates “a reasonable probability of an acquittal.”
This is insufficient.

Rhone has the burden to prove that no

reasonable juror would have convicted him in light of the new
evidence, not merely that there is a reasonable probability that
a jury might acquit him if presented with this evidence.

Rhone

ignores the weight of the evidence against him at trial, which,
even taking into account the so-called new evidence, remains
sufficient to support a conviction.

Accordingly, we will deny

Rhone’s request for review and a hearing based on allegations of
actual innocence.
-27-