VOGT v. COLEMAN et al

Filing 47

ORDER denying 42 Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b). It is further ordered that a certificate of appealability is denied. It is further ordered that the Clerk of Court mark this case CLOSED. And it is further ordered that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Fed. R. App. P. Signed by Magistrate Judge Lisa Pupo Lenihan on December 16, 2013. (kcc)

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

STEVEN DAVID VOGT,
Petitioner,
v.
SUPERINTENDENT COLEMAN,
Respondent.

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Civil Action No. 08 - 530
Chief Magistrate Judge Lisa Pupo Lenihan

ECF No. 42

MEMORANDUM OPINION AND ORDER
This case is before the Court on a Motion for Relief from Judgment filed by Petitioner,
Steven David Vogt, pursuant to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”). (ECF No.
42). This is the fourth Rule 60(b) motion Vogt has filed since his petition for writ of habeas
corpus was dismissed as untimely on January 8, 2010. This motion is based on the United States
Supreme Court’s recent ruling in McQuiggen v. Perkins, 133 S. Ct. 1924 (2013), which held that
actual innocence, if proved, serves as a gateway through which a habeas petitioner may pass
whether the impediment is a procedural bar or expiration of the statute of limitations. Vogt
claims that he has evidence which demonstrates that he is actually innocent of the crimes for
which he was convicted and therefore the Court should vacate its Order of dismissal of his
petition as untimely and evaluate his claims on their merits. For the reasons explained herein,
Vogt’s Rule 60(b) motion will be denied.

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I.

Relevant Facts and Procedural History1
The facts, as set forth by the Superior Court, are as follows. On May 12, 1990, Francis

Landry picked up Michael Sopo, Margaret Zawodniak and Steven Vogt in his blue Nissan and
took them to his residence in Export, Pennsylvania where, except for Landry, they drank beer. A
while later, Walter Cowfer came to Landry’s residence. Cowfer, Sopo and Zawodniak then left
and went to Arthur McClearn’s apartment where they discussed Landry’s murder. The parties
returned to Landry’s residence where they resumed drinking beer. At some point, Cowfer went
to Landry’s car where Landry was sleeping and asked to take the car to Cupec’s Lake. He then
ordered Landry to get in the back seat where he was surrounded by two of the others. They
drove to the lake where they ordered Landry out of the car and pushed him over a hill where he
fell a 30-40 foot drop into the lake. The others threw rocks into the water and rolled a huge
boulder into the water hitting Landry. They then went back to the car, drank some more beer and
left the area. The next day, Landry’s drowned body was discovered by some area scuba divers.
Several days later, State Trooper Strawbridge received a call from the Monroe County Sheriff’s
Department in Tavernier, Florida that Sopo, Vogt and Cowfer were in custody there and in
possession of the registration plate of Landry’s car and his wallet.
Subsequently, Vogt, Cowfer, Zawodniak, Sopo and McClearn were arrested and charged
with Landry’s murder. Sopo pled guilty to criminal conspiracy and McClearn pled guilty to third
degree murder; both men testified on behalf of the Commonwealth during the trial of Vogt,
Cowfer and Zawodniak, which commenced before a jury on January 29, 1991, in the Court of
Common Pleas of Butler County, Pennsylvania. On January 31, 1991, Cowfer and Vogt were
found guilty of Murder in the First Degree, Robbery, Theft, Kidnapping and Criminal
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As taken from the Court’s Memorandum Opinion and Order dated January 8, 2010. (ECF No. 24.)
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Conspiracy; Zawodniak was acquitted of all charges. Following the denial of post-verdict
motions, on June 17, 1991, Vogt was sentenced to life imprisonment.
Vogt filed a timely notice of appeal to the Superior Court of Pennsylvania, which was
consolidated with the appeal of his co-defendant, Cowfer. Vogt filed his brief in the Superior
Court on March 23, 1992, wherein he raised the following claims.
1. The evidence was insufficient to sustain the guilty verdicts as to the crimes of
kidnapping, theft by unlawful taking and robbery.
2. The lower court erred by failing to grant Vogt’s request for demurrer to
reduce the first degree murder charge to third degree based on Vogt’s
intoxication.
3. A new trial was required due to the prejudicial effect of improper criminal
evidence being submitted to the jury.
On October 21, 1991, the Superior Court affirmed the judgment of the lower court. Vogt
filed a petition for allowance of appeal to the Supreme Court of Pennsylvania, which was denied
by that court on June 25, 1993. He did not seek discretionary review in the United States
Supreme Court.
On September 17, 1997, Vogt filed a pro se petition for relief under the Pennsylvania
Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9542. Following appointment of
counsel, an amended petition was filed asserting that Vogt was entitled to relief due to newly
discovered exculpatory letters from convicted co-conspirator Cowfer. The first letter was written
to Vogt’s counsel and outlined Cowfer’s purported testimony had he elected to testify in his own
defense at the joint trial and stated that Vogt was innocent of Landry’s murder. This letter was
placed in Vogt’s file without Vogt’s knowledge. On March 1, 1997, Cowfer sent another letter
to Vogt’s counsel but mailed it to Vogt instead. After receipt of this letter, Vogt filed his PCRA
petition. A PCRA hearing was scheduled for December 7, 1998; however, on that date, Vogt
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voluntarily withdrew his PCRA petition. The lower court specifically noted that although
Cowfer had been transported to the Butler County Prison and was available for the hearing, Vogt
still chose to voluntarily withdraw his PCRA petition. No appeal was filed.
On July 2, 2004, Vogt filed a second PCRA petition.

Appointed counsel filed an

amended petition on November 17, 2004, raising the following claims.
1. Newly discovered evidence that Commonwealth witness, Michael Sopo,
entered a guilty plea to burglary pursuant to a plea agreement with the
Commonwealth dated January 14, 1991 and that counsel was ineffective for
failing to effectively use this evidence to impeach this key witness.
2. Newly discovered evidence in the form of statements by codefendant, Walter
S. Cowfer, Jr. and that counsel was ineffective in failing to preserve this issue
for review.
3. Ineffective assistance of counsel for failure to file a motion to sever Vogt’s
trial from his co-defendants.
4. Ineffective assistance of counsel for failure to call character witnesses.
5. Ineffective assistance of counsel for failure to prevent Commonwealth
witnesses Carrie Deiseroth and Leonard Mayhugh from testifying that Walter
S. Cowfer, Jr. was accompanied by an unidentified individual when he
confessed to committing the homicide.
6. Ineffective assistance of counsel for failure to present an intoxication defense.
In the amended petition filed on November 17, 2004, Vogt attached an affidavit by
Cowfer dated September 23, 2004. In the affidavit, Cowfer averred that he went to the home of
Leonard Mayhugh several hours after the murder of Landry. Cowfer related that Vogt, Sopo and
Zawodniak waited in the car while he and McClearn entered the Mayhugh residence. A hearing
was held on Vogt’s PCRA petition on January 27, 2006. On July 12, 2006, the trial court denied
the PCRA petition as untimely. Vogt filed a timely notice of appeal and on October 24, 2007,
the Superior Court of Pennsylvania affirmed the trial court’s determination denying Vogt PCRA
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relief. Vogt filed a petition for allowance of appeal to the Supreme Court of Pennsylvania,
which was denied by that court on April 8, 2008.
II.

Federal Habeas Corpus Proceedings
Vogt’s federal petition for writ of habeas corpus was dated April 14, 2008. In his

petition, he raised the following claims.
1. Prosecutorial misconduct in illegally suppression/withholding [sic] Brady
material; the identity of male party to confession.
2. Prosecutorial misconduct in illegally redacting trial testimony of Com.
witnesses Deiseroth and Mayhugh.
3. Prosecutorial misconduct in the knowing use of false evidence to convict
Petitioner.
4. Prosecutions [sic] knowing use of false evidence when it elicited only some of
the details of witness Sopo’s plea agreement.
On January 8, 2010, this Court dismissed the petition as untimely, finding that it was not filed
within the AEDPA’s one-year statutory limitations period, see 28 U.S.C. § 2244(d), for any of
his claims. Vogt then appealed and the Third Circuit Court of Appeals denied his request for a
certificate of appealability on May 24, 2010.
Vogt filed his first Rule 60(b) motion on September 24, 2010. In his motion, he argued
that the Court’s order of dismissal should be vacated because he had new evidence that proved
his innocence; specifically, an affidavit from Margaret Zawodniak dated August 27, 2010,
stating that Vogt severely injured his ankle from a drunken fall earlier that night and was too
intoxicated to have played a part in Landry’s death. She claimed that on the night Landry was
killed Vogt was with her in the car or just right outside of it throwing up. Vogt also had an
affidavit from Tricia Holfelder, his assistant, who stated that she had spoken to Michael Sopo,
and, although he was too reluctant to provide a sworn statement, he represented to her that Vogt
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had nothing to do with Landry’s death. Sopo also presumably relayed to Holfelder that his
testimony was coerced. Finally, Vogt provided the Court with the March 1997 letter written by
Cowfer, which stated that Vogt was innocent. Vogt’s Rule 60(b) motion was denied because he
had not first exhausted his newly discovered evidence claim in the state courts. His request for
reconsideration of that order was also denied. He then filed an appeal with the Third Circuit,
which denied his request for a certificate of appealability on February 7, 2011, stating in its order
that it was not settled law that actual innocence could serve as a basis for overcoming AEDPA’s
statute of limitations, and, to the extent that it could, Vogt’s evidence did not establish such
innocence.
Vogt filed his second Rule 60(b) motion on November 17, 2011, again asserting that he
had evidence to establish his actual innocence – the aforementioned affidavits from Zawodniak
and Holefelder and the letter from Cowfer. Vogt stated that in accordance with the Court’s
previous order he attempted to exhaust his innocence claim in state court by filing another PCRA
petition but that the trial court denied the petition stating that Vogt had failed to prove that the
new evidence would have changed the outcome of the trial. Vogt’s Rule 60(b) motion was
denied in accordance with the directive issued by the Third Circuit denying his previous request
for a certificate of appealability with respect to his first Rule 60(b) motion. His motion for
reconsideration was denied on December 6, 2011.
Subsequently, Vogt filed an application with the Third Circuit for permission to file a
second or successive federal habeas petition based on the Supreme Court’s decision in Martinez
v. Ryan, 132 S. Ct. 1309 (2012), which held that ineffectiveness of post-conviction counsel can
serve to excuse a procedural default of claims alleging trial counsel ineffectiveness. His request
was denied on May 31, 2012.
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Vogt filed his third Rule 60(b) motion on July 9, 2012, also based on Martinez v. Ryan,
132 S. Ct. 1309 (2012), and this Court denied the motion on July 18, 2012.
One year later, Vogt has filed his fourth Rule 60(b) motion, this time based on
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), where the Supreme Court held that a “colorable”
claim of actual innocence constitutes an equitable exception that can overcome the bar of
AEDPA’s one-year statute of limitations.
III.

Rule 60(b) Standard
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment

on several grounds, including the catch-all category “any other reason justifying relief form the
operation of the judgment.” Fed. R. Civ. P. 60(b)(6). Subsection (b)(6) is the provision under
which Vogt brings his motion. A motion under subsection (b)(6) must be brought “within a
reasonable time,” Fed. R. Civ. P. 60(c)(1), and requires a showing of “extraordinary
circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The Supreme Court has
explained that “[s]uch circumstances will rarely occur in the habeas context.” Id. at 534. A
change in decisional law after judgment is entered rarely justifies Rule 60(b)(6) relief. See, e.g.,
id. at 536-38 (concluding that the change in habeas law brought by Artuz v. Bennett, 531 U.S. 4
(2000), did not amount to “extraordinary circumstances” justifying the reopening of a final
judgment under Rule 60(b)(6)). See also 11 Charles Alan Wright, Arthur R. Miller, Mary Kay
Kane & Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE § 2864 (3d ed. April
2013).
As an initial matter, a district court must first determine whether a Rule 60(b) motion is,
in actuality, a second or successive habeas petition. Because federal courts lack jurisdiction to
consider a second or successive habeas petition if a petitioner does not first obtain an order from
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the circuit, Burton v. Stewart, 549 U.S. 147, 157 (2007), the district court would lack jurisdiction
over the motion if it was in fact a second or successive habeas petition. The Supreme Court has
held that the use of Rule 60(b) to advance a claim that is “in substance a successive habeas
petition” would constitute an impermissible circumvention of the standards set forth in the
AEDPA. Gonzalez, 545 U.S. at 531-32.
In this case, Vogt’s Rule 60(b) motion is not a prohibited second or successive habeas
petition. See Gonzalez, 545 U.S. at 535 (A Rule 60(b) motion challenging “only the District
Court’s previous ruling on the AEDPA statute of limitations . . . is not the equivalent of a
successive habeas petition.”); Lewis v. United States, No. 12-4085, 2013 U.S. App. LEXIS
14347 (1st Cir. June 26, 2013) (finding that the petitioner’s Rule 60(b) motion asserting actual
innocence was not a prohibited second or successive § 2255 motion because it sought to correct
what it claimed was an error in the district court’s prior judgment that his motion was untimely
but nevertheless denying his application for a certificate of appealability); Parham v. Klem, 496
F. App’x 181 (3d Cir. 2012) (holding that the district court had jurisdiction over the petitioner’s
Rule 60(b) motion and that it was not a second or successive habeas petition because the court’s
consideration of “new” evidence of actual innocence “does not transform a gateway claim into
the assertion of a federal basis for relief”). But see Ellis v. Marshall, No. 01-cv-12147, 2013
U.S. Dist. LEXIS 96320 (D. Mass. July 10, 2013) (finding that the petitioner’s Rule 60(b)
motion based on evidence of actual innocence was in essence an attempt to raise a new
constitutional argument and therefore he had to file a request with the circuit to file a second
habeas petition).
However, the Court’s research did not yield a case in which a petitioner has actually been
permitted to reopen a judgment under Rule 60(b)(6) based solely on the change in law brought
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about by McQuiggin. In other words, it is unclear whether an actual showing of innocence
constitutes “extraordinary circumstances” that justifies reopening a final judgment pursuant to a
Rule 60(b)(6) motion so that a district court can evaluate the merits of claims in an untimely filed
habeas petition. However, this Court need not address this issue because Vogt’s evidence does
not establish his innocence such that it is more likely than not that no reasonable juror would
have voted to convict him. See McQuiggin, 133 S. Ct. at 1933.
IV.

Discussion
As previously noted, in McQuiggin the Supreme Court held that a “colorable” claim of

actual innocence constitutes an equitable exception that can overcome the bar of the AEDPA
one-year statute of limitations. 133 S. Ct. 1924. “Colorable,” as that term has been used in the
context of consideration whether a “miscarriage of justice” warrants excusing procedural
defaults, means “reliable evidence of factual innocence.” Schlup v. Delo, 513 U.S. 298, 324
(1995). To establish a colorable claim of actual innocence, a petitioner must show, usually by
way of new evidence, that it is more likely than not, that no reasonable jury would have
convicted him. Schlup, 513 U.S. at 327; Glass v. Vaughn, 65 F.3d 13, 16-17 (3d Cir. 1995).
This showing requires “new reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.”
Schlup, 513 U.S. at 324; see also Cristim v. Brennan, 281 F.3d 404, 420-21 (3d Cir. 2002).
The Supreme Court’s opinion in McQuiggin makes clear the limitations on its holding
and stresses the “demanding” nature of the test for permitting the gateway to open: “The
gateway should open only when a petition presents ‘evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error.’” Id. at 1936 (quoting Schlup, 513 U.S. at 316).
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The Court also noted that the degree of diligence displayed by the petitioner in pursuing and
presenting the new evidence “bears on the determination whether the petitioner has made the
requisite showing [of actual innocence].” Id. at 1935.
In this case, the Court is not persuaded that Vogt has made a credible showing of actual
innocence. Notwithstanding the fact that this “new” evidence is the same evidence in which the
Third Circuit stated did not establish Vogt’s innocence when it denied his application for a
certificate of appealability on February 7, 2011, and in which the Court of Common Pleas of
Butler County stated would not have compelled a different verdict when it denied his PCRA
petition on November 16, 2010, and is the same evidence that has been presented before this
Court at various points throughout these habeas proceedings, it is clear that it does not meet
Schlup’s high actual innocence threshold.
Vogt first offers the August 25, 2010 affidavit from Zawodniak in which she states that
Vogt was highly intoxicated the night of Landry’s death and that earlier in the night he had
sprained his left ankle and could barely walk on it. She further states that when Cowfer, Landry
and McClearn left the car that she and Vogt remained in the back seat with Sopo sitting in the
front passenger seat. When Vogt started to get sick, she leaned over and opened his door and
shoved him outside so he wouldn’t throw up in the car. She states that he laid on the ground
outside while she went to sleep. When she woke up she saw that Vogt was crawling back into
the car. She states that he was in and out of consciousness and did not know what was going on.
This evidence does not support a showing of factual innocence. Notably, Zawodniak does not
account for Vogt’s actions during the time, however long it was, when she was asleep, nor could
she as she clearly has no first-hand knowledge of what occurred during that time.

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The affidavit of Tricia Holfelder, which purports to recount a conversation she had with
Michael Sopo in 2010, is hearsay, and despite Holfelder stating that Sopo would be willing to
make a statement that Vogt was not involved in Landry’s death, Sopo has never done so.
Moreover, besides Sopo’s conclusive statement that Vogt had no involvement in Landry’s
murder, Holfelder provides no basis for Sopo’s alleged knowledge to such a fact beyond a simple
bald assertion. Nevertheless, for the reasons stated in the response to Vogt’s Rule 60(b) motion,
even accepting Sopo’s purported testimony at face value it fails to establish that no reasonable
juror would have convicted Vogt in light of the other evidence presented against him at trial.
Finally, the March 1997 letter written by Cowfer directly contradicts Zawodniak’s claim
that Vogt was incapacitated in the back seat or directly outside of the car by either an ankle
injury or intoxication. Cowfer states that Sopo and Zawodniak were passed out by the time the
party arrived at the scene of the crime and that they remained in the car while he, Vogt,
McClearn and Landry made their way through the wooded area and eventually down to another
area. He states that the four of them sat around drinking before he walked to the edge and was
eventually joined by McClearn and Landry, while Vogt stayed at the tree line drinking.
Cowfer’s story represents Landry’s death as merely the result of horseplay gone awry and claims
that Vogt had nothing to do with it.
The Court notes that Cowfer was available to testify in Vogt’s PCRA hearing that was
scheduled for December 7, 1998; but, on that date, Vogt voluntarily withdrew his PCRA petition.
Nevertheless, notwithstanding the crucial fact that Vogt has presented two differing theories of
actual innocence with evidence that does not meet the Schlup standard, McClearn testified at
trial that Vogt was an integral participant in Landry’s murder. Therefore, Vogt’s evidence, even
if taken at face value and put before the jury, does not remotely persuade the Court that no
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reasonable juror would have voted to convict him as it is possible that the jury would have
chosen to believe McClearn’s testimony over the others.
Petitioner provides no cause to disturb the Court’s dismissal of his petition as timebarred. Therefore,
IT IS HEREBY ORDERED that Petitioner’s Motion for Relief from Judgment pursuant
to Federal Rule of Civil Procedure 60(b) (ECF No. 42) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
Dated: December 16, 2013.

_________________________
Lisa Pupo Lenihan
Chief United States Magistrate Judge

cc: Steven David Vogt
BN-3436
SCI Fayette
Box 9999
LaBelle, PA 15450-0999
Counsel of Record

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