Glover v. Coleman

Filing 99

MEMORANDUM OPINION & ORDER - IT IS HEREBY ORDERED that Glover's 91 motion to set aside judgment is DENIED. Glover's 90 Motion "to expand the record" is DISMISSED as moot. Glover's 92 Motion "for Discovery" i s DISMISSED as moot. In the event that a certificate of appealability is required to appeal in this matter, a certificate of appealability shall not issue, as Glover has not made a substantial showing of the denial of a constitutional right. (See Order for further details.) Signed by Chief Judge Matthew W. Brann on 11/22/2024. (ea)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUSTIN GLOVER,
Petitioner,

No. 3:14-CV-01800
(Chief Judge Brann)

v.
THOMAS MCGINLEY,
Respondent.
MEMORANDUM OPINION & ORDER
NOVEMBER 22, 2024
Petitioner Justin Glover returns to this Court, again seeking to challenge his
2008 state-court conviction and sentence of life imprisonment for homicide and
related offenses. This time, Glover has filed a pro se motion1 under Federal Rule
of Civil Procedure 60(d)(3) to set aside a judgment for alleged “fraud on the
court.”2 Glover cannot satisfy Rule 60(d)(3)’s demanding requirements, so the
Court will deny his motion.
Glover’s original Section 2254 petition was denied in August 2017 by the
late Honorable Richard P. Conaboy.3 Judge Conaboy dismissed some of Glover’s
habeas claims as procedurally defaulted and denied others on the merits.4 The
United States Court of Appeals for the Third Circuit denied Glover’s request for a
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Doc. 91.
See FED. R. CIV. P. 60(d)(3).
Docs. 45, 46.
See Doc. 45 at 4-19.

certificate of appealability,5 and the Supreme Court of the United States denied
certiorari on May 14, 2018.6
Glover, however, has continued to file various petitions and motions in state
and federal court, unsuccessfully attempting to reopen his habeas proceedings or
raise additional post-conviction claims.7 Most recently, in 2021, Glover filed a pro
se Rule 60(b)(6) motion8 and a counseled “supplemental” Section 2254 petition9 in
this Court. The Court denied Glover’s Rule 60(b)(6) motion and dismissed his
“supplemental” Section 2254 petition for lack of subject matter jurisdiction.10
Glover appealed the denial of his Rule 60(b)(6) motion and, in October 2023, the
Third Circuit affirmed this Court’s denial.11
Wasting no time, Glover immediately filed another Rule 60 motion in this
Court seeking to reopen his habeas proceedings and ultimately attack his 2008
state-court conviction. This time, Glover contends that he is asserting an
independent action alleging “fraud upon the court.”12 Glover alleges that the
Commonwealth of Pennsylvania committed fraud on this Court by intentionally

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See Doc. 52.
Glover v. Lane, 138 S. Ct. 1991 (2018) (mem.).
See, e.g., Docs. 53, 54, 56, 57, 59-64, 66, 68.
Doc. 66.
Doc. 68.
See generally Doc. 74.
See generally Doc. 80-1; Doc. 81.
See generally Doc. 91. Although Glover posits that he is asserting an “independent action,”
which would implicate Federal Rule of Civil Procedure 60(d)(1), see United States v. Foy, 803
F.3d 128, 134 n.4 (3d Cir. 2015), he is actually seeking to set aside a judgment for “fraud on
the court” under Rule 60(d)(3).
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“altering four pages” of the state-court trial transcript that contained testimony
from Laura Pawlowski, a forensic biologist employed by the Baltimore Police
Department.13 Glover contends that the Commonwealth “edited and changed
relevant portions of the notes of testimony to make it appear [that] the victim[’]s
blood was found on ductwork allegedly recovered from” his co-defendant’s house
in Harrisburg.14 Glover asserts that Pawlowski actually testified at trial that “the
victim’s blood was ‘not’ found on the ductwork or anywhere in” his codefendant’s residence.15 He maintains that the purportedly altered transcript
deceived this Court and resulted in the denial of one of his habeas claims asserting
“improper jurisdiction.”16
Establishing fraud upon the court under Federal Rule of Civil Procedure
60(d)(3) requires a litigant to meet a “necessarily demanding” standard of proof.17
The litigant alleging fraud must prove: “(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.”18 Fraud upon the court may be justified only by “the most egregious
misconduct directed to the court itself,” and it “must be supported by clear,
unequivocal and convincing evidence.”19
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Doc. 91 at 6, 7.
Doc. 93 at 1.
Doc. 91 at 6.
Id. at 7-13.
Herring v. United States, 424 F.3d 384, 386 (3d Cir. 2005).
Id.
Id. at 387 (citation omitted).
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Glover cannot meet this demanding standard. First, and most importantly,
Glover has not offered “clear, unequivocal[,] and convincing evidence” for his
assertion that the trial transcript was intentionally altered by the prosecution. The
only evidence Glover has proffered for this grave accusation is deposition
testimony from Pawlowski in a different legal matter. In that deposition,
Pawlowski testified that her report “stated that blood was indicated on the
ductwork,” not that it was blood.20 Notably, when shown pages 522 and 523 of the
2008 trial transcript—two of the pages that Glover contends were fraudulently
“altered”—Pawlowski actually confirmed that the transcript accurately portrayed
her trial testimony.21 Furthermore, this Court’s review of the transcript pages to
which Glover cites22 (pages 522 through 525), reflect that Pawlowski testified that
blood was “indicated on that piece of ductwork,” not that it was confirmed as
blood or as the victim’s blood.23 Accordingly, there is simply no evidence that the
trial transcript was intentionally “altered” by the Commonwealth such that fraud
was committed. For this reason alone, Glover’s Rule 60(d)(3) motion fails.

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See Doc. 96-1 at 5-6.
Id. at 6-7; see also Doc. 17-18 at 22-23 (pages 522 and 523 of 2008 trial transcript).
See Doc. 91 at 8.
Doc. 17-18 at 22-25 (emphasis added). At trial, Julie Kowalewski—a DNA analyst—testified
that she had performed DNA testing on swabs taken from the at-issue ductwork and confirmed
that DNA from the ductwork matched the comparator sample DNA taken from the victim. See
Doc. 17-18 at 29-37 (trial transcript pages 529 through 537).
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Second, in Judge Conaboy’s memorandum opinion denying Glover’s
Section 2254 petition, the Court resolved the at-issue habeas claim alleging
“improper jurisdiction” by holding as follows:
Ground Four clearly lacks merit since ample forensic evidence
presented by the Commonwealth sufficiently established that the victim
was killed in the basement of a home in Harrisburg which was owned
by Glover’s co-defendant. Accordingly, since Petitioner has not
provided clear and convincing facts showing that the murder did not
occur in Dauphin County, the state court’s exercise of jurisdiction will
not be overturned.24
As is readily apparent from the foregoing rationale, the Court did not specifically
rely on the trial transcript, Pawlowski’s testimony, or any particular assertion in the
Commonwealth’s briefing. Rather, after providing the legal standard for granting
habeas relief based on state-court findings of fact,25 the Court determined that
Glover had not proffered “clear and convincing” evidence that the state court’s
determination on this jurisdictional claim was an unreasonable determination of the
facts in light of the evidence presented at trial.26
The state court’s determination on this claim, in fact, relied on much more
than the ductwork to tie the murder of the victim (whose body was discovered in
Maryland) to Harrisburg. Specifically, the trial court—in its recitation of the
relevant facts—noted (1) “remnants of drywall, drywall screws, plastic and other

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Doc. 45 at 15 (emphasis added).
See 28 U.S.C. § 2254(d)(2), (e)(1).
See Doc. 45 at 14-15.
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construction debris” found near the body of the victim, and that Glover’s codefendant’s house in Harrisburg was being renovated; (2) “paint chips” found near
the victim’s body that were “chemically, elementally, and microscopically
consistent” (or “originating from a common source”) with paint chips collected
from Glover’s co-defendant’s house; and (3) antiquated plaster made from animal
hair found near the victim’s body that was “chemically, elementally, and
microscopically consistent” with plaster from Glover’s co-defendant’s house.27
Additionally, Glover’s cellular telephone records tracked his cell phone traveling
south from Harrisburg to Maryland during the approximate time of the murder.28
Thus, even assuming arguendo that the transcript of Pawlowski’s trial
testimony was somehow “altered” by the Commonwealth—which Glover has not
proven and which Pawlowski expressly denied—Glover has not established that
the purported fraud deceived this Court. Furthermore, Glover’s argument
demonstrates that—if fraud had been perpetrated—it was directed at the state
courts and not this Court. After all, Glover initially raised the jurisdictional
challenge to his conviction in the trial court and then renewed that challenge on
direct appeal, 29 and that is where the trial transcript and Pawlowski’s testimony
was first presented to any judicial body.

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See Doc. 17-5 at 4-6.
See id. at 5.
See Doc. 17-5 at 15; Doc. 17-6 at 7.
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Glover thus fails to establish three out of the four elements of a claim
asserting fraud on the court. His Rule 60(d)(3) motion is wholly meritless and will
therefore be denied.
AND NOW, upon consideration of the foregoing, IT IS HEREBY
ORDERED that:
1.

Glover’s motion (Doc. 91) to set aside a judgment pursuant to Federal
Rule of Civil Procedure 60(d)(3) is DENIED.

2.

Glover’s motion “to expand the record” (Doc. 90) is DISMISSED as
moot in light of paragraph 1 above.

3.

Glover’s motion “for discovery” (Doc. 92) is DISMISSED as moot in
light of paragraph 1 above.

4.

In the event that a certificate of appealability is required to appeal in
this matter, a certificate of appealability shall not issue, as Glover has
not made a substantial showing of the denial of a constitutional right.
See 28 U.S.C. § 2253(c)(2).
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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