VOGT v. COLEMAN et al
ORDER denying 51 Motion for Reconsideration. Signed by Magistrate Judge Lisa Pupo Lenihan on June 8, 2017. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN DAVID VOGT,
Civil Action No. 08 - 530
Magistrate Judge Lisa Pupo Lenihan
ECF No. 51
This case is before the Court on Petitioner’s Motion for Reconsideration of this Court’s
Order dated May 25, 2017 denying his Motion for Relief from Judgment that he filed pursuant to
Federal Rule of Civil Procedure 60(b). In his Rule 60(b) Motion, Petitioner argued that this
Court should vacate its Order dated January 8, 2010 dismissing as untimely his Petition for Writ
of Habeas Corpus, reopen these proceedings and review his claims based on the recent United
States Third Circuit case Dennis v. Secretary, Pennsylvania Department of Corrections, 834 F.3d
263 (3d Cir. 2016) (en banc). In denying his Rule 60(b) Motion, this Court found that Dennis
did not provide Petitioner with any relief. Petitioner now asserts that this Court should
reconsider its denial of his Rule 60(b) Motion because we did not understand the argument he
was making in support of his request for relief. For the following reasons, his Motion for
Reconsideration will be denied.
On January 8, 2010, this Court determined that Petitioner’s Petition for Writ of Habeas
Corpus was untimely filed because he had until April 23, 1997 to file his Petition, but did not do
so until April 14, 2008, almost 11 years after the statute of limitations had expired. However,
with respect to one of Petitioner’s claims involving newly discovered evidence, which he raised
in his first PCRA petition on September 17, 1997, this Court found that the statute of limitations
as to that claim expired on January 7, 2000.
In the Court’s Order dismissing his Petition as untimely, this Court noted that Petitioner
had filed a second PCRA petition in the state court on July 2, 2004, but that the Pennsylvania
Superior Court determined that his petition was untimely filed. Notably, one of the claims raised
in Petitioner’s second PCRA petition (which is at issue now) was that the prosecutor in his
underlying criminal case deliberately withheld evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963). In finding that this claim was untimely, the Superior Court found as follows:
Appellant baldly asserts that the prosecutor deliberately withheld the name
of the “unidentified” man, in violation of Brady v.Maryland, 373 U.S. 83, (1963)
and led the jury to believe that appellant was the person that accompanied Cowfer
and silently agreed to complicity in the crime. While it is well-settled that a Brady
violation can fall within the governmental interference exception appellant has
only sixty days after the discovery of the information to file his PCRA and he
must plead and prove that the information could not have been discovered earlier
with the exercise of due diligence.
Here, appellant has failed to demonstrate that he could not have uncovered
this information earlier through the exercise of due diligence. Appellant filed a
previous PCRA petition in September of 1997, based on information Cowfer
provided to him in a letter, which contradicted the Commonwealth’s version of
the crime. The trial court scheduled a December 7, 1998 evidentiary hearing on
appellant’s petition, and Cowfer was transferred to the trial court for the purpose
of testifying on appellant’s behalf. However, appellant voluntarily withdrew his
petition prior to the evidentiary hearing. Although the information in the present
affidavit is somewhat distinct from that provided in Cowfer’s previous letter,
appellant had the opportunity to question Cowfer at the hearing regarding all of
the events surrounding the murder of Landry, but he declined to do so. Therefore,
appellant has not proven that he could not have discovered this information
For similar reasons, appellant has failed to carry his burden of proving that
Cowfer’s most recent affidavit constitutes “unknown facts” sufficient to toll the
PCRA time of filing requirements. Appellant had the opportunity to question
Cowfer under oath at the scheduled evidentiary hearing in 1998, be he declined to
do so. Thus, he has not demonstrated that the identity of the person who
accompanied Cowfer to the residence of Mayhugh and Deiseroth could not have
been ascertained earlier by the exercise of due diligence.
Sup. Ct. Op. dated October 24, 2007, pp. 7-10 (citations and footnotes omitted) (doc. no. 14-8).
In Petitioner’s Rule 60(b) Motion, he argued that the Court should reopen this case,
review his Brady claim and grant him relief because the Third Circuit clarified in Dennis that
Brady does not impose a due diligence requirement on defense counsel, and this Court
incorrectly relied on the Commonwealth’s defense of “a supposed lack of diligence” when it
dismissed the underlying federal habeas petition. For several reasons, this Court found that
Petitioner was not entitled to relief when it denied his Rule 60(b) Motion.
In his Motion for Reconsideration, it appears Petitioner argues that this Court can reopen
this case and review his Brady claims because in finding that his Petition was untimely filed this
Court gave deference to the Pennsylvania Superior Court’s finding that he did not exercise due
diligence in discovering the factual predicate for his Brady claims, and pursuant to Dennis, his
lack of diligence cannot considered as a defense. Petitioner, however, appears to misunderstand
the application of the statute of limitations.
Petitioner’s Petition for Writ of Habeas Corpus was untimely filed, and as to his Brady
claims, it was untimely filed by eight years. The Pennsylvania Superior Court’s rationale for
finding Petitioner’s second PCRA petition untimely, which is really what Petitioner is
challenging, is of no importance in considering the statute of limitations for filing habeas
petitions. A federal court is bound by a state court’s finding that a petitioner’s PCRA petition
was untimely, even where the petitioner sought to pursue his PCRA petition under a statutory
exception to the PCRA’s time bar. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005); Merritt v.
Blaine, 326 F.3d 157, 165 (3d Cir. 2003). That is exactly the case here. The Pennsylvania
Superior Court concluded that Petitioner’s second PCRA petition was untimely filed and, no
matter what effect Dennis may have on that decision, although it has none, this Court is “bound”
by that finding. As such, to the extent that he argues that this Court should toll the one-year
statute of limitations period during the time his second PCRA proceedings were pending in state
court, he is not entitled to any tolling, statutory or equitable. Nothing in his Rule 60(b) Motion
or his Motion for Reconsideration alters the Court’s decision.
AND NOW, this 8th day of June, 2017, IT IS HEREBY ORDERED that Petitioner’s
Motion for Reconsideration (ECF No. 51) is DENIED.
Lisa Pupo Lenihan
United States Magistrate Judge
cc: Steven David Vogt
LaBelle, PA 15450-0999
Counsel for Respondent
(Via CM/ECF electronic mail)
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