GRAY v. KLEM et al

Filing 65

MEMORANDUM. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 8/19/21. 8/20/21 ENTERED AND COPIES MAILED TO PRO SE; E-MAILED.(amas, )

Case 2:05-cv-02382-TJS Document 65 Filed 08/19/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES ANDREW GRAY

:
:
v.
:
:
THE DISTRICT ATTORNEY OF THE
:
COUNTY OF PHILADELPHIA, THE
:
ATTORNEY GENERAL OF THE STATE :
OF PENNSYLVANIA, JOHN KERESTES :

CIVIL ACTION

NO. 05-2382

MEMORANDUM

Savage, J.

August 19, 2021

The Philadelphia District Attorney’s Office continues to be haunted by the infamous
“McMahon” tape instructing young prosecutors how to systematically exclude Blacks from
juries. In this case, it was personal -- McMahon was petitioner’s prosecutor.
James Andrew Gray, a state prisoner who is serving a life sentence for first degree
murder and related offenses, has filed a motion under Fed. R. P. 60(b)(2) and (6). In
essence, he is seeking reconsideration of the ruling that the untimely filing of his habeas
petition was not excused by equitable tolling. He cites as new evidence supporting his
equitable tolling contention a magistrate judge’s finding in an unrelated case that his
PCRA counsel had a history of neglecting to inform his clients of the status of their
appeals. Gray complains that his PCRA attorney did not advise him that the Superior
Court had denied his appeal. As a result of this failure, he contends he missed the
deadline for perfecting further appeals, preventing him from exhausting his state remedies
in a timely manner.
His substantive claim that the prosecutor in his case purposefully excluded Black
venirepersons from his jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986), has

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not been considered on the merits. Each time Gray sought to raise the issue in state
and federal courts, his claim was dismissed as time-barred or procedurally defaulted.
Petitioner was convicted on July 14, 1988, and his conviction was affirmed by the
Pennsylvania Superior Court on May 11, 1992. In his petition under Pennsylvania’s Post
Conviction Relief Act (“PCRA”) filed almost eight years later on March 2, 2000, petitioner
asserted a Batson claim for the first time. The PCRA court dismissed his petition as
untimely on December 7, 2001. The Superior Court affirmed on December 26, 2002,
finding that because Gray’s conviction was final on June 10, 1992 and he had until June
10, 1993 to file a timely PCRA petition, his petition filed on March 2, 2000 was untimely.
The Pennsylvania Supreme Court denied allocatur on August 6, 2003.

Gray

claims he was unaware of the Supreme Court’s action until May 5, 2005, when, in
response to his inquiry regarding the status of his petition, the Pennsylvania Supreme
Court advised him that his petition had been denied.
On May 20, 2005, Gray filed a petition under 28 U.S.C. § 2254. He raised the
Batson issue and acknowledged he had presented the McMahon tape as new evidence
in his PCRA proceeding. He referred to the Basemore decision.
On his motion, proceedings on his habeas petition were stayed pending the state
court’s disposition of a second PCRA petition. When the state court denied his PCRA
petition, the stay was lifted. Upon the recommendation and report of a magistrate judge,
the habeas petition was dismissed as untimely on February 4, 2009. The Third Circuit
denied a certificate of appealability on October 6, 2009.
On May 23, 2011, under another docket, Gray filed a motion under Rule 60
2

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claiming that the statute of limitations had been improperly calculated when his first
habeas petition was dismissed. 1

In that motion, he made essentially the same

arguments he makes in the motion now before us. That motion was denied on August
17, 2011.
More than eight years later, Gray filed a second Rule 60(b) motion on December
6, 2019.

He claimed that “after discovered” evidence excused his untimely habeas

petition. His “new evidence” was that his PCRA counsel had been found in an unrelated
case to have had a history of failing to inform clients of the disposition of their appeals,
allowing the statute of limitations to expire and depriving them of timely exhausting their
state remedies. So, he argues, the delay in filing his § 2254 motion should be excused
and his Batson claim decided on the merits.
Gray’s claim is not newly-discovered nor is it newly made. He has made the same
argument in other forms and at various times.
As he did in his first Rule 60(b) motion, Gray contends he learned of the tape after
he read the Pennsylvania Supreme Court decision in Basemore. The McMahon tape
was made public during a contested District Attorney’s race in April 1997. It was again
exposed in Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000). Indeed, when Gray
filed his second habeas petition on May 15, 2012,2 he cited the McMahon tape as newlydiscovered evidence. His petition was transferred to the Third Circuit as a request for
authorization to file it as a second or successive petition. The Third Circuit denied the
request.

1
2

Gray v. Kerestes, Civil Action No. 11-3349.
Gray v. Kerestes, C.A. No. 12-2694.

3

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To say he did not know the basis for a Batson claim until he discovered the tape
is not credible. At his trial, he was aware of the composition of the jury and McMahon’s
striking Black persons. Nevertheless, he did not make this claim until eight years after
the Superior Court affirmed his conviction.
One of Gray’s co-defendants, Marvin Spence, was granted a new trial on March
22, 2004, based upon McMahon’s purposeful discrimination during jury selection. See
Commonwealth v. Hackett, 956 A.2d 978, 981-82 (Pa. 2008). Unlike Gray, Spence had
made a Batson challenge at trial.
The only intervening event between when Gray’s habeas petition was dismissed
and his first Rule 60 motion was denied, and when he filed his second Rule 60 motion
was a magistrate judge’s finding in an unrelated case that the same PCRA counsel that
had represented Gray had a history of neglecting to inform his clients of the status of their
appeals. That his PCRA counsel had such a history does not excuse Gray from taking
steps to comply with the time requirements of the Rules.
Gray’s second Rule 60(b) petition was filed more than eight years after his first
was denied, and almost eleven years after his habeas petition was denied. He does not
assert newly-discovered evidence justifying equitable tolling. He merely attempts to
circumvent the time requirements for filing a timely habeas petition. What he proffers is
corroborating, not new, evidence to justify equitable tolling, not to prove his innocence.
Therefore, we shall deny his motion.

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