HOGAN v. GILLIS et al

Filing 41

MEMORANDUM; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 9/16/22. 9/16/22 ENTERED AND NOT MAILED TO UNREP; E-MAILED.(JL)

Case 2:04-cv-00957-ER Document 41 Filed 09/16/22 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN HOGAN,

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Petitioner,
v.
FRANK D. GILLIS, et al.,
Respondents.

CIVIL ACTION
NO. 04-957

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

I.

September 16, 2022

INTRODUCTION

Petitioner Kevin Hogan brings a Rule 60(b) motion to reopen
habeas corpus proceedings. The Commonwealth argues that the
Court lacks jurisdiction over Petitioner’s motion, as it is
really a second or successive petition disguised as a Rule 60(b)
motion and should have properly been filed with the Third
Circuit Court of Appeals. The Court agrees with the Commonwealth
and denies Petitioner’s motion without prejudice, so that he can
properly bring this petition to the Third Circuit Court of
Appeals under 28 U.S.C. § 2244(b)(3).
II.

BACKGROUND

Petitioner was convicted of first-degree murder and related
offenses in the Court of Common Pleas in Montgomery County,
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Pennsylvania, in 1995. Pet’r’s Mot. to Reopen Pet. for Writ of
Habeas Corpus ¶¶ 3, 10, ECF No. 30 (Pet’r’s Mot.). Petitioner
appealed his conviction unsuccessfully, filed multiple PCRA
petitions, and eventually filed a federal habeas corpus petition
in 2004. Pet’r’s Mot. ¶¶ 12-23. The Court adopted Magistrate
Judge Scuderi’s Report and Recommendation denying Petitioner’s
Motion as untimely. Mem. Op. (May 31, 2005), ECF No. 13.
Petitioner then filed another PCRA petition in September 2016,
alleging that he was entitled to relief on the basis of newly
discovered evidence. Pet’r’s Mot. ¶¶ 26-27.
At his criminal trial for murder, “Petitioner’s defense was
that he shot [the victim] in self defense because he thought
that [the victim] and Robert Hall . . . were going to shot [sic]
him for hanging around the bar.” Pet’r’s Mot. ¶ 50. In his
current motion to the Court, brought under Rule 60(b)(2) and
(b)(6), Petitioner points to allegedly new evidence supporting
this prior self-defense claim.
First, Petitioner claims that Hall “falsely told the police
that the person who shot his uncle had previously threatened to
kill his uncle” because Hall thought doing so would “get [the
police] off his back about allegedly being a ‘hitman.’” Pet’r’s
Mot. ¶¶ 60-61; see also id., Ex. B (Aff. of Pierre L. Pinson),
at 1. Petitioner also raises new evidence from an eyewitness
that he learned of while in prison, who claimed to have seen the
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shooting and seen the victim in possession of “what looked like
a gun.” Pet’r’s Mot. ¶¶ 27-30; see also id., Ex. A (Aff. of
Dorian Mathis), at 4.
III. LEGAL STANDARD
At issue here is the interaction of the Federal Rules of
Civil Procedure and the Antiterrorism and Effective Death
Penalty Act--specifically Rule 60(b) and 28 U.S.C. § 2244.
Under Rule 60(b)(2), which applies to all civil actions, a
party may move for relief from a final judgment on the basis of
“newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b).” Fed. R. Civ. P. 60(b)(2).
To obtain relief under subsection (b)(6), the catch-all
category for reopening a judgment under Rule 60(b), a petitioner
must show that “extraordinary circumstances” are present to
justify disturbing a final judgment. Gonzalez v. Crosby, 545
U.S. 524, 535 (2005) (quoting Ackermann v. United States, 340
U.S. 193, 199 (1950)). “This last option is available only when
Rules 60(b)(1) through (b)(5) are inapplicable.” Kemp v. United
States, 142 S. Ct. 1856, 1861 (2022) (citing Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988)).
Extraordinary circumstances have included “expert testimony
linking [Defendant’s] race to violence” such that a defendant
“may have been sentenced to death in part because of his race,”
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Buck v. Davis, 137 S. Ct. 759, 772, 778 (2017), or a subsequent
change in governing law, Gonzalez, 545 U.S. at 531. In
considering whether extraordinary circumstances exist, the court
may look to “the risk of injustice to the parties in the
particular case, the risk that the denial of relief will produce
injustice in other cases, and the risk of undermining the
public’s confidence in the judicial process.” Liljeberg, 486
U.S. at 864.
Under 28 U.S.C. § 2244, which applies specifically to
habeas proceedings, a district court only has jurisdiction to
review a second or successive petition if the petitioner has
first obtained an order from the appropriate court of appeals,
here the Third Circuit, authorizing the district court to
consider the application. 28 U.S.C. § 2244(b)(3)(A). The Third
Circuit Court of Appeals, not this Court, has jurisdiction to
determine whether the petitioner’s claim meets the requirements
of § 2244(b)(2) such that the claim can avoid mandatory
dismissal as a second or successive petition. See Berry v.
Kauffman, 208 F. Supp. 3d 676, 681 (E.D. Pa. 2016).
By contrast, when a petition attacks “not the substance of
the federal court’s resolution of a claim on the merits, but
some defect in the integrity of the federal habeas proceedings,”
such as a fraud on the habeas court, it is properly brought as a
Rule 60(b) motion and can be heard by a district court without
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precertification by a court of appeals. Gonzalez, 545 U.S. at
532 & n.5.
IV.

DISCUSSION
Petitioner’s motion cannot rightly be considered a Rule

60(b)(2) motion, as he requests relief on the basis of allegedly
new facts underlying a claim that he brought in his initial
habeas petition. Petitioner contests the integrity of the state
criminal proceedings, rather than the federal habeas
proceedings, by alleging that a key witness, Robert Hall,
committed perjury on the stand. Pet’r’s Mot. Ex. B, at 46-47. He
also alleges that there is a new eyewitness to testify on his
behalf who was not known at the time of trial or in the
appropriate time to move for a new trial, as such witness had
his own “troubles” and “did not want to see any court house.”
Pet’r’s Mot. Ex. A, at 43. These new allegations are thus
related to Petitioner Hogan’s original claims for relief on the
basis of ineffective assistance of counsel in presenting a
defense such as voluntary intoxication or self-defense that
would negate the specific intent required for first-degree
murder. See Pet’r’s Mot. ¶¶ 50, 104, 112; see also United States
v. Santarelli, 929 F.3d 95, 105 (3d Cir. 2019) (“[A] Rule 60(b)
motion that raises a claim attacking the underlying criminal
judgment must be a second or successive petition . . .” (quoting
Blystone v. Horn, 664 F.3d 397, 413 (3d Cir. 2011))).
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Furthermore, Petitioner does not show “extraordinary
circumstances” that would justify reopening these proceedings.
Rather, his petition, even viewed under 60(b)(6), still
“reassert[s] claims of error in the state conviction” and
accordingly must be treated as a successive habeas petition.
Waliyud-Din v. Att’y Gen. Pa., No. 10-5851, 2020 WL 6262982, at
*2 (E.D. Pa. Oct. 23, 2020).
V.

CONCLUSION
Under the conditions that Petitioner presents here, by

raising “newly discovered evidence” to challenge the underlying
criminal proceedings, the “use of Rule 60(b) would impermissibly
circumvent the requirement that a successive habeas petition be
precertified by the court of appeals as falling within an
exception to the successive-petition bar.” Gonzalez, 545 U.S. at
532 (citing 28 U.S.C. § 2244(b)(3)). This is because
Ҥ 2244(b)(2)(B) requires a more convincing factual showing than
does Rule 60(b).” Id. at 531.
Accordingly, Petitioner’s motion is denied without
prejudice so that he may properly file his motion with the Court
of Appeals for the Third Circuit. An appropriate order follows.

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