VOGT v. COLEMAN et al

Filing 99

MEMORANDUM OPINION AND ORDER denying 98 Motion for Rule 60(b) Relief and denying as moot 95 Motion for Discovery, 96 Motion for Judicial Notice of August 23, 2022 Summary Judgment at Civil Action No. 17-1407 and 97 Motion to Appoint Counsel. It is further ORDERED that a Certificate of Appealability is DENIED. Petitioner has thirty days to file a notice of appeal. Signed by Magistrate Judge Lisa Pupo Lenihan on August 15, 2023. (kcb)

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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
Magistrate Judge Lisa Pupo Lenihan
ECF Nos. 95-98

MEMORANDUM OPINION
This case is before the Court on a Motion for Relief from Judgment filed by Petitioner,
Steven David Vogt (“Vogt”), pursuant to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”).
(ECF No. 98). This is the seventh Rule 60(b) motion Vogt has filed since his federal habeas
petition was dismissed as untimely on January 8, 2010. In this motion, he argues that this Court
should vacate its order dismissing his petition as untimely and review the merits of his claims
because he has new, reliable evidence of his innocence. In support of his motion, he relies on an
entirely typewritten recantation letter purportedly authored by his co-defendant, Arthur
McClearn. For the following reasons, Petitioner’s Rule 60(b) motion will be denied.
Additionally, Vogt’s habeas claims will be denied on the merits in the alternative.
A. Relevant Factual History
On May 12, 1990, Francis Landry (“Landry”) picked up Michael Sopo (“Sopo”),
Margaret Zawodniak 1 (“Zawodniak”) and Steven Vogt (“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 (“Cowfer”) came to Landry’s residence. Vogt, Cowfer, Sopo and

1

Zawodniak passed away on March 8, 2020.
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Zawodniak left and went to Arthur McClearn’s 2 (“McClearn”) apartment where they continued
to drink and discussed a plan to murder Landry. 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. Once there, Landry was ordered out of
the car by Cowfer, Vogt, and McClearn. Zawodniak and Sopo stayed in the car while the others
started walking down the path to the lake. Landry complained that his chest hurt and protested
going any further. Landry was eventually pushed over a hill where he fell 30 to 40 feet into the
lake. The others threw rocks into the water and rolled a huge boulder into the water that hit
Landry. They then went back to the car, drank 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. See Commonwealth v. Vogt, No. 1281 PGH 1991,
unpublished memorandum at 2-3 (Pa. Super. Ct. Oct. 21, 1992); see also (ECF No. 14-4, pp.3536.)
Subsequently, Vogt, Cowfer, Zawodniak, Sopo and McClearn were arrested and charged
with Landry’s murder. Vogt, Cowfer and Zawodniak elected to proceed to a trial by jury. Sopo
and McClearn entered guilty pleas whereby they admitted their involvement in the murder. For
his part, McClearn pled guilty to third degree murder, robbery, theft by unlawful taking,
kidnapping and criminal conspiracy, and in exchange, received a sentence of four to eight years
of imprisonment. Sopo pled guilty to criminal conspiracy. Both men testified on behalf of the

2

McClearn passed away on January 14, 2017.
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Commonwealth at the trial of Vogt, Cowfer and Zawodniak, which commenced before a jury on
January 29, 1991. At the conclusion of the trial, Cowfer and Vogt were convicted of first-degree
murder, robbery, theft by unlawful taking, kidnapping and criminal conspiracy. Zawodniak was
acquitted of all charges. Following the denial of post-verdict motions, on June 17, 1991, Vogt
was sentenced to life imprisonment for the murder conviction.
Relevant to Vogt’s current motion is the testimony of McClearn. McClearn testified at
trial and recounted the events that led up to their arrival at Cupec’s Lake. See ECF No. 72-2,
pp.38-40. McClearn told the jury that he, Vogt, Cowfer and Landry got out of the car and
walked into the woods. Id., p.40. Vogt and Cowfer instructed McClearn to just follow the path
as it led to the lake. Id. McClearn then testified as follows:
Mr. Landry was complaining about his chest hurting. So we stopped for a few
seconds. He said he didn’t want to go any more. Steve [Vogt] said, I’ll help him.
He took him by his arm and his elbow and was helping him walk. He stopped
again. He said his chest was hurting him bad, he didn’t want to go any further.
We stopped. I turned around. Walt [Cowfer] said, here, he threw me a wallet and
he told me to see if there was any money in it.
Id., pp.40-41. McClearn testified that he opened the wallet, which belonged to Landry,
determined it was empty and threw it back to Cowfer. Id., p.41. He testified that as he turned
around to walk away, he heard Landry yell. Id. When he turned around, he saw Landry going
over the hill into the lake. Id. According to McClearn, Landry was yelling, “Don’t do me, I’ll
give you $5,000.00,” then after a little while he yelled, “Don’t do me, I’ll give you $10,000.”
Id., pp.41-42. McClearn testified that he walked away to another spot in the woods and stayed
there for an hour or longer. Id., p.42. He could hear rocks hitting the water and heard Landry
yell a few times more before he didn’t hear him anymore. Id. He stated that he turned around to
walk back and saw Landry over the hill in the water. Id. He also stated, “Every once in a while
you could see his feet, you could see ripples come out into the water.” Id. He testified that Vogt
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asked him to help him get a rock, and he helped him set a rock up on the bank that eventually
went down over the hill. Id. When McClearn started to leave, Cowfer asked him to get a rope,
which he did. Id. He then saw Vogt go down over the hill to where Landry was and then saw
Landry pushed out from the shore. Id. He testified that Landry tried to tread water but “went
under,” and then he turned around and went back to the car. Id. He stated that once he returned
to the car, Vogt and Cowfer emerged from the woods and the group hung around for a few
minutes drinking beer. Id., p.43. Sopo asked where Landry was and someone said “Frank’s
swimming.” Id. He testified that Zawodniak was asleep in the back seat, then everyone got in
the car and they left. Id. When asked where they went, McClearn testified as follows:
Someplace around New Kensington or Tarentum, first. We dropped Maggie
[Zawodniak] off. From there we went a little farther. I’m not sure how far it was.
We stopped at another guy’s house, bought $10.00 worth of marijuana . . . We
left the man’s house. We went back to Export. We got to my house, first, went in
and got clothes. From my house we went to Walt’s [Cowfer]. Walt [Cowfer]
went in his house and got a jacket, clothes, shoes. I don’t know what else he got.
Id.
During cross-examination by Vogt’s attorney that spanned 86 pages of the trial transcript,
McClearn agreed that he plead guilty to criminal charges even though he was not guilty of
committing them because he wanted to obtain a good deal for himself. Id., pp.49-51. McClearn
stated that he was guilty “just for being there.” Id., p.52. The following exchange then occurred:
Q:

Can you tell me whether or not at the time that you entered into this plea
agreement if you were told by the District Attorney’s Office or by your
attorney that in fact you might be facing the death penalty?

A:

They told me I might be facing the death penalty.

Q:

Was that one of the reasons you agreed to plead guilty to these things that
you now say you didn’t do?

A:

Yes, it was.

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Id., p.53. Counsel then reviewed all of the maximum sentences associated with the crimes to
which McClearn pled guilty, pointing out that McClearn only received a sentence of four to eight
years in light of the plea agreement. Id., pp.53-54. McClearn was then questioned about all of
the alcohol he consumed on May 12, 1990, as well as his ingestion of Percocets and marijuana.
Id., pp.55-59, 66.
As far as his relationship with Cowfer, McClearn testified that he had known Cowfer
approximately one and one-half months prior to Landry’s murder and agreed that their
acquaintance basically centered around drinking. Id., pp.59-60. With respect to Vogt, McClearn
stated that he had never met Vogt prior to the evening in question. Id., p.61. During crossexamination, McClearn was questioned about inconsistencies between his statements to police,
his preliminary hearing testimony, and his trial testimony. Id., pp.81-83, 90-93, 104-07, 110-13.
The following exchange occurred at the end of the cross-examination by Vogt’s attorney:
Q:

Then is it also the truth that you in fact did commit murder?

A:

No, it’s not.

Q:

That you did in fact kidnap somebody?

A:

No.

Q:

You made a deal to help yourself, right?

A:

Yes.

Id., p.134.
B. Applicable Law
Vogt requests relief pursuant to Federal Rule of Civil Procedure 60(b). Federal Rule of
Civil Procedure 60(b) allows a party to seek relief from a final judgment, and request reopening
of his case, under a limited set of circumstances, including (1) mistake, inadvertence, surprise, or

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excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial; (3) fraud or misconduct by an opposing party;
(4) because the judgment is void; (5) because the judgment has been satisfied, released or
discharged; and (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). Vogt specifically
invokes Rule 60(b)(6).
“Rule 60(b)(6) is a catch-all provision that authorizes [the] court to grant relief from a
final judgment for ‘any . . . reason’ other than those listed elsewhere in [Rule 60(b)].” Cox v.
Horn, 757 F.3d 113, 120 (3d Cir. 2014) (quoting Fed. R. Civ. P. 60(b)(6)). Rule 60(b)(6)
“provides ‘a grand reservoir of equitable power to do justice in a particular case.’” Id. at 122
(quoting Hall v. Cmty. Mental Health Ctr., 772 F.2d 42, 46 (3d Cir. 1985)). “The grant or denial
of a Rule 60(b)(6) motion is an equitable matter left . . . to the discretion of [the] district court.”
Id. at 124. The court is, however, “to dispense [its] broad powers under [Rule] 60(b)(6) only in
‘extraordinary circumstances where, without such relief, an extreme and unexpected hardship
would occur.’” Id. at 120 (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)).
“[The] movant . . . bears the burden of establishing entitlement to [Rule 60(b)(6)] equitable relief
. . . .” Id. at 122 (citing Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)).
Vogt argues that McClearn’s recantation letter, and the change in the law brought about
by McQuiggin v. Perkins, 569 U.S. 383, 392 (2013), is an extraordinary circumstance that
entitles him to Rule 60(b)(6) relief. In McQuiggin, the United States Supreme Court recognized
that the actual innocence gateway to federal habeas review for procedurally defaulted claims in
Schlup v. Delo, 513 U.S. 298 (1995) extends to cases where a petitioner’s claims would
otherwise be barred by the expiration of AEDPA’s one-year statute of limitations. 569 U.S. at
386. In other words, McQuiggin allows a petitioner who makes a credible showing of actual

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innocence to pursue his or her constitutional claims even in spite of the statute of limitations bar.
Four years after the Supreme Court issued McQuiggin, the Court of Appeals for the Third Circuit
addressed whether the change brought about by McQuiggin was an extraordinary circumstance
upon which Rule 60(b)(6) relief may issue. In Satterfield v. District Attorney Philadelphia, 872
F.3d 152 (3d Cir. 2017), the Third Circuit held that “a proper demonstration of actual innocence
by [a habeas petitioner] should permit Rule 60(b)(6) relief unless the totality of equitable
circumstances ultimately weigh heavily in the other direction. A contrary conclusion would
leave open the possibility of preventing a petitioner who can make a credible showing of actual
innocence from utilizing the fundamental-miscarriage-of-justice exception simply because we
had not yet accepted its applicability at the time his petition was decided – an outcome that
would plainly betray the principles upon which the exception was built.” Id. at 163. Therefore,
“if a petitioner can make a showing of actual innocence, McQuiggin’s change in law is almost
certainly an exceptional circumstance.” Id.
“[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in
light of new evidence, ‘it is more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 537-38 (2006)
(quoting Schlup, 513 U.S. at 327).
It is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard requires the district court to
make a probabilistic determination about what reasonable, properly instructed
jurors would do. Thus, a petitioner does not meet the threshold requirement
unless he persuades the district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.
Schlup, 513 U.S. at 329.

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Removing the double negative, a petitioner’s burden at the gateway stage is to
demonstrate “that more likely than not any reasonable juror would have reasonable doubt.”
House, 547 U.S. at 538. As this formulation makes clear, “actual innocence” is something of a
misnomer, because “the Schlup standard does not require absolute certainty about the
petitioner’s guilt or innocence” – that is, a petitioner need not make “a conclusive exoneration.”
Id. at 538, 553; see also Schlup, 513 U.S. at 327 (“[T]he showing of ‘more likely than not’
imposes a lower burden of proof than the ‘clear and convincing’ standard.”). Thus, a
“petitioner’s showing of innocence is not insufficient solely because the trial record contained
sufficient evidence to support the jury’s verdict.” Id. at 331; see House, 547 U.S. at 553-54
(granting a gateway innocence claim despite acknowledging that “[s]ome aspects of the State’s
evidence . . . still support an inference of guilt”); Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th
Cir. 2012) (noting that the actual innocence standard “is less strict than the insufficient evidence
standard”).
Nevertheless, the Supreme Court has stressed that the Schlup standard is “demanding,”
McQuiggin, 569 U.S. at 401, and “that tenable actual-innocence gateway pleas are rare,” id. at
386, arising only “in an extraordinary case,” Murray v. Carrier, 477 U.S. 478, 496 (1986). “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.’” McQuiggin, 569 U.S. at 401 (quoting Schlup,
513 U.S. at 316). The actual innocence standard is designed to “ensure[] that petitioner’s case is
truly ‘extraordinary’ while still providing [a] petitioner a meaningful avenue by which to avoid a
manifest injustice.” Schlup, 513 U.S. at 327 (quoting McCleskey v. Zant, 499 U.S. 467, 494
(1991)).

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To be credible, a claim of actual innocence requires a petitioner to present “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. In
assessing the adequacy of a petitioner’s showing, “the habeas court must consider ‘all the
evidence,’ old and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted under ‘rules of admissibility that would govern at trial,’” House, 547
U.S. at 538 (quoting Schlup, 513 U.S. at 327-28). Put another way, the innocence inquiry
“requires a holistic judgment about ‘all the evidence,’ and its likely effect on reasonable jurors
applying the reasonable-doubt standard.” Id. at 539 (quoting Schlup, 513 U.S. at 328).
C. Discussion
1. The McClearn letter and Vogt’s proceedings on his fifth PCRA petition.
As previously stated, Vogt’s Rule 60(b) motion is premised on an entirely typewritten
letter from his co-defendant, Arthur McClearn, that is dated October 23, 2016. In its entirety, the
letter provides:
October 23, 2016
Mr. Vogt,
They say I gotta go back and make amends for past wrongs before I can
put the past completely behind me. Hope they are right and this helps ease my
conscience. I checked online and found you. Saw your appeal or something. I
wish that would have worked for you so I didn't have to do this. It’s me Art
McClearn Please keep reading this, because if I can help I will. You will never
know how sorry I am that things worked out the way they did. I don’ know what
you did to piss those people off but they made me testify the way I did. I did tell
them the truth but they wouldn’t accept it and kept at me until they liked what I
said. I didn’t know you, so it was easier to go through with it, but you have to
understand! It was to save my life! They made me help convict you. It was the
only way to avoid the death penalty. It says online that you don’t remember
much. I’m not surprised you were really wasted. The fact is you did not go to the
quarry where me and Sherm killed Frank. You were passed out in the car. Then
when we came back you were laying on the ground outside the car. Sherm
wanted to leave you there, said he wasn’t babysitting. I helped you get up and put
you back in the car. Can’t believe Sherm did that. Do you know he talked about
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going to the police and telling them you killed Frank right away? He didn’t think
they’d believe it then. I think he may have called them from his friend’s or
somewhere. Maybe that’s why they were so focused on you to blame. I don’t
know. I lied when I said you had anything to do with killing Frank. You did not.
I'm ready to tell the truth. I need to tell the truth. I know you may be mad and I
wouldn’t blame you, but I’m really trying to make it right, now. I’m sorry it has
taken so long.
I don’t feel comfortable giving you my house address there so you’ll have
to have your lawyer contact me on Facebook if you think I could help with an
appeal. I’m willing to testify to the truth now. I really am sorry, Steve!
Art
(ECF No. 98-1, p.3.)
Vogt maintains that he received McClearn’s letter in an interdepartmental mail envelope
that was delivered to his cell on May 17, 2017, over six months after the letter is dated.
According to a civil lawsuit Vogt filed, see FN 3, McClearn’s letter was rejected in compliance
with the prison’s mail policy because it lacked a return address, but he was never notified of the
rejection. In April 2017, Vogt contacted a United States Postal Service reclamation center
looking for a different mailing. In response, the Post Office returned several items, one of which
was McClearn’s letter that was postmarked October 25, 2016, but by that time McClearn had
been dead for about five months.
In June 2017, shortly after receiving McClearn’s letter, Vogt filed a fifth PCRA petition
arguing that the letter entitled him to a new trial. The PCRA court dismissed the petition as
untimely on June 23, 2017, concluding that it was not filed within 60 days of the date on the
letter and that the unsworn letter was not sufficient to repudiate McClearn’s sworn trial
testimony. On appeal, the Pennsylvania Superior Court vacated the order and remanded for

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consideration of the timeliness of the petition. See Commonwealth v. Vogt, 2018 WL 1516372
(Pa. Super. Mar. 28, 2018). 3
Vogt was appointed counsel on October 3, 2018, and counsel filed an amended PCRA
petition on his behalf on January 7, 2019. The following is a summary of the proceedings
following counsel’s filing of the amended petition.
. . . . In the Amended petition, [Vogt]’s prior filings were incorporated, including
the October 23, 2016 typewritten letter purportedly authored by Arthur
[McClearn]. Also incorporated was a July 24, 2017 handwritten letter from
Heidru Maureschat (“Maureschat”) which stated that she sent a letter to Appellant
in November 2016 that contained photographs. Maureschat Letter, 7/24/17,
attached as Exhibit C to Appellant’s Amended Fifth PCRA Petition. “Thinking
about it later,” she realized that she may have forgotten to put her return address
on the envelope. Id. She then wrote that in January 2017, she asked [Vogt] if he
ever received the photographs and he responded that he did not. Although he was
supposedly notified by Maureschat in January 2017 that there was a problem with
his mail, [Vogt] did not make inquiry about the status of his mail with the prison
until April 17, 2017. See Exhibit D attached to Appellant’s Amended Fifth
PCRA Petition.
As the amended PCRA petition also incorporated [Vogt]’s brief on the timeliness
of his petition, an April 2, 2018 statement from Phyllis Vogt, [Vogt]’s mother,
was included, providing as follows:
I cannot recall an exact date, but sometime around 2005 my son
[Vogt] requested that I try to find Arthur McClearn. [Vogt]
wanted some information concerning an appeal he was planning to
file. It was something that would not have negatively impacted
[Arthur McClearn] or his credibility. I found the address on the
internet and went to visit [Arthur McClearn]. He came to the door
While his appeal from the dismissal of his fifth PCRA petition was pending before the Superior Court, Vogt filed a
civil action in this Court against the Secretary of the Department of Corrections and the mailroom employees at SCIFayette wherein he alleged that his due process rights and his right to access the courts were violated when his letter
from McClearn was rejected by the prison officials without notice to him in October 2016. See Vogt v. Wetzel, No.
17-cv-01407 (W.D. Pa. 2017). This Court ultimately dismissed his complaint for failure to state a claim. Id., 2018
WL 3388484 (W.D. Pa. July 12, 2018). On appeal, the Third Circuit Court of Appeals vacated the order dismissing
Vogt’s procedural due process claim and directed this Court to address it at summary judgment or trial, as
appropriate. The Third Circuit also vacated the order dismissing Vogt’s access to the courts claim as unripe with
instructions to stay that claim while his PCRA litigation proceeded. See Vogt v. Wetzel, 8 F.4th 182, 187 (3d Cir.
2021). On remand, the parties filed motions for summary judgment, to which the Court granted Vogt’s motion only
as to the Secretary’s liability for a violation of Vogt’s due process rights. The Court then granted a stay of the action
pending resolution of Vogt’s PCRA litigation and “any related federal habeas litigation.” See Vogt v. Wetzel, No.
17-cv-01407, ECF No. 101 (W.D. Pa. Aug. 23, 2022). It is necessary to point out that the authentication of
McClearn’s letter was not and is not an issue in Vogt’s civil suit.
3

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and, on learning my identity, was totally uncooperative and
indicated by word and demeanor that he wanted nothing to do with
me or [Vogt]. So I left. [Vogt] asked me at a later time if I could
try to contact [Arthur McClearn] again. But I couldn’t find his
address then and felt it would be useless anyway based on his
earlier responses.
Mrs. Vogt’s Letter, 4/2/18. [Vogt]’s father, William Vogt, also submitted a
statement, indicating that he drove his wife [Vogt]’s mother)] to Arthur
[McClearn]’s residence and waited in the vehicle. Mr. Vogt’s Letter, 4/2/18. Mr.
Vogt stated that “I saw [Arthur McClearn] come to the door. He and [Mrs. Vogt]
exchanged words very briefly and then he went inside and closed the door. When
she came back to the car, [Mrs. Vogt] was disappointed that [Arthur McClearn]
refused to talk to her.” Id.
On August 26, 2019, the PCRA court conducted a hearing on [Vogt]’s Amended
Fifth PCRA Petition, following which it determined the petition to be timely filed.
On March 8, 2021, the PCRA court held a hearing on the merits of the petition.
Although [Vogt]’s parents were present, [Vogt] did not call them to the stand to
testify on his behalf. See N.T., Hearing, 3/8/21, at 3.
***
[At the hearing, Vogt] . . . presented the testimony of Judson McClearn, Jr. (“J.
McClearn”), the first cousin of Arthur [McClearn]. Through introduction of
Arthur [McClearn]’s death certificate, it was established that Arthur [McClearn]
died on January 14, 2017. According to J. McClearn, while Arthur [McClearn]
was incarcerated for the murder, he would send J. McClearn typewritten letters.
J. McClearn was quick to add that Arthur [McClearn] would always write just
“Art” on the bottom.
Q: Okay. Did he actually sign it in like a pen, or was it just a typed
signature?
A: I believe it was pen.
Q: You think he wrote to you in pen?
A: No. No. He typed it, but it seemed to me like it looked bigger from
what I can remember.
Q: Are you actually – are you certain that that’s how it was?
A: I’m actually not certain, to tell you the truth. I – you know, it – I do
believe it was typed actually now – now that I’m recollecting it. It was
many years ago, I believe it was just typed, all typed.
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J. McClearn characterized his relationship with Arthur [McClearn] as estranged
following Arthur [McClearn]’s release from prison.
Q: Okay. When he was released from prison, did you still have
communications with him in that format [typed]?
A: Yeah – writing?
Q: Uh-huh.
A: No, I actually spoke with him a couple times, but not face to face.
Q: Okay. Would you say your relationship to Art was close or estranged?
How would you describe it?
A: I would say estranged. But we also – I mean we wrote because – my
family really just kind of disowned him, but he’s still my cousin no matter
what happened.
Q: Okay. And how often would you say that you received letters from
Art in the typed fashion?
A: Two, three times a month.
J. McClearn, however, could not locate any of these letters for purposes of the
hearing. According to J. McClearn, a woman reached out to him and asked if he
had any knowledge of Arthur [McClearn] sending a letter to a prison. J.
McClearn testified that “Art[hur] did tell me that, that he had – he wanted to get
reprieve and tell the truth about [Vogt].” When asked when he was made aware
of this letter, J. McClearn stated he “really can’t remember” and “believe(d) it
was after Art[hur] passed.” J. McClearn testified that he stopped receiving letters
from Arthur [McClearn] in 2013 or 2014 “because he had moved closer to us and
stuff like that. So we started talking on the phone more.” J. McClearn, however,
testified that he did not know the town where Arthur [McClearn] lived. He stated
that he only saw Arthur [McClearn] twice after Arthur was released from prison.
When asked where Arthur [McClearn] was living in 2016, J. McClearn initially
did not recall but then stated that Arthur was in a nursing home at the time.
However, J. McClearn did not know the location of the nursing home. Although
he previously testified that he stopped receiving letters from Arthur [McClearn] in
2013 or 2014, he later testified that Arthur told him about the letter to [Vogt] in a
letter that he (Arthur) sent to J. McClearn in 2015. He also told the court that he
“believed” that Arthur [McClearn] sent him letters from the nursing home.
Although he claimed to have received these letters, he stated that he never saw
Arthur [McClearn]’s signature. J. McClearn neither attended Arthur
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[McClearn]’s funeral, nor did he receive any of his belongings. The following
exchange then occurred with respect to whether J. McClearn ever provided any
written statements.
Q: There was a certification that was filed in this matter by [Vogt’s]
attorney wherein she indicated that she attempted to contact you on
several occasions to obtain a certification from you, but the efforts were
unsuccessful. How did anyone reach out to you with respect to [Vogt’s]
defense?
A: The only person that’s ever reached out to me was the Mary lady and
her.
Q: And how did [Vogt’s counsel] reach out to you?
A: Via phone. Or Facebook I do believe.
Q: All right. Did you write out a statement?
A: I believe I did.
Q: Who did you give that statement to?
A: I – maybe I – maybe I didn’t write out a statement. I thought I wrote
something down or something with [Vogt’s counsel], but maybe I didn’t
write down a statement.
Finally, [Vogt] testified on his own behalf. He stated that he discovered Arthur
[McClearn]’s letter on May 17, 2017 when an inter-department mail envelope was
placed in his cell. [Vogt] testified that he had written to mail recovery centers
looking for lost mail after he failed to receive a letter and photographs sent to him
by his friend, Maureschat. He claimed that the envelope that contained Arthur
[McClearn]’s letter was confiscated during a search of his cell.
[Vogt] identified Exhibit “H” as his sworn affidavit dated April 3, 2018 wherein
he stated, in relevant part, that he had tried to contact Arthur [McClearn] “many
times over more than two decades through various family members and friends”
and that “occasionally people declined to help, but when he was actually
contacted he refused to speak on the matter, and typically quite rudely.” He
further averred in his affidavit that “prior to receiving the recantation letter I did
not know [Arthur McClearn’s] whereabouts and had no reason to believe he had a
change of heart since my last attempts pertaining his willingness to speak with me
or anyone else on the matter.”
When asked if he recalled the events leading up to the murder, [Vogt] responded
“[u]m, not very much reliable.” This exchange followed.
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Q: Okay. And you’ve had a chance to review both the affidavit that was
offered and admitted from Miss Zawodniak as well as Arthur
[McClearn]’s recantation letter? Is that right?
A: Yes.
Q: Okay. And from what you do remember from that night, are those
events or are those recitations accurate?
A: Yes they are.
[Vogt] subsequently testified:
I would like to point out that the affidavit and the letter match each other
in content for the events of that night, and they are certainly more accurate
with my recollection of what happened compared to what was testified to
at trial.
When asked whether anything in Arthur [McClearn]’s letter stood out to him to
cause him to believe that Arthur had personal knowledge of the information
contained within the letter, [Vogt] responded, “Yes. One of the things I noticed
was that the author knew that [Arthur McClearn] did not know me prior to that. I
don’t think that is public knowledge anywhere. I’m not sure of that.” [Vogt] then
added: “Another thing is [Arthur McClearn] had referred to Walter Cowfer as
Sherm. Only close friends of him referred to him as that.” [Vogt] thereafter
identified a photocopy of an envelope with his name, address and the words
“Legal mail” handwritten on the front of it that he claimed contained Arthur
[McClearn]’s letter. The envelope contained no return address.
Near the conclusion of his testimony on direct examination, [Vogt] stated that
with respect to Arthur [McClearn]’s trial testimony, “I suspected [Arthur] was
lying, which is why I kept trying to contact him, but he would never respond to
it.”
On cross-examination, [Vogt] acknowledged that he typed the letter to the Mail
Recovery Center and his April 3, 2018 affidavit on a word processor located in
the library at the prison. He stated that all inmates can utilize the word processor.
When asked about the averments in the affidavit with respect to attempts made to
contact Arthur [McClearn], Vogt testified that “nobody ever gave me his
address.” He acknowledged that his mother had visited Arthur [McClearn] on
one occasion to speak with him and that he believed Holfelder (Meade) might
have contacted him. He noted that “just a bunch of people over the years” had
tried to reach Arthur [McClearn].

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Q: Those individuals that did make contact with [Arthur McClearn], how
did they contact him? Was it in person? Was it by telephone?
A: I believe my mother visited him. Other people, I don’t know.
Q: They didn’t explain to you how they located him?
A: No. A lot of them never even said they got with him at all. They tried
to find his address and couldn’t.
Q: But your mother found it? She found his address?
A: Yes.
Q: How did she find his address?
A: She did not tell me that?
Q: You didn’t ask her?
A: No.
....
Q: Why were you attempting to contact him for two decades?
A: Because I believe he was lying at my trial.
Q: And what happened when your mother actually spoke with him?
A: I’m not sure, but he was not cooperative.
Q: Well, you’ve been trying to reach him for two decades. Didn’t you
ask her some follow-up questions such as where is he living? Who is he
living with? What did he say about my case?
A: I did not. I did not. If he doesn’t want to talk or – if he doesn’t want
to talk about it, I can’t make him, you know. I wasn’t trying to force
myself on him. If he wanted to talk, I wanted to hear it, but –
Q: So you weren’t interested in knowing where he lived?
A: No.
[Vogt] stated that his mother visits him at the prison “once every couple months
or so.” He was then asked whether he recalled a visit to the prison that she made
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on July 10, 2017 shortly after the discovery of Arthur [McClearn]’s letter and the
filing of his fifth PCRA petition. He stated that he did not recall that visit
specially and did not know whether he told her about the letter.
Q: You didn’t tell her that you’re pursuing a new appeal based on this
letter that you received from Arthur [McClearn]?
A: I don’t believe I did. No.
....
Q: Did you ask your mother if [Arthur McClearn] was living in
Pittsburgh?
A: I don’t believe so.
Additionally, [Vogt] testified that his friend Dawn Bruner (“Bruner”) sent him an
e-mail on April 19, 2017 wherein she advised him that Arthur [McClearn] had
passed away. Although he claimed that Bruner had been trying to find Arthur
[McClearn], he did not recall if he told her that his mother had actually located
and met with Arthur. [Vogt] could not explain how or where his friends and
family searched for Arthur [McClearn].
Although he testified that the Zawodniak affidavit and Arthur [McClearn]’s letter
were “certainly more accurate with my recollection of what happened compared
to what was testified to at trial,” [Vogt] stated on cross-examination that he did
not remember anything “beyond leaving Arthur McClearn’s residence” and that
the next thing he remembered was “being in a motel in Kentucky.”
Q: [S]o it’s your testimony that you have no recollection of what
happened at the quarry?
A: Yes.
Q: And you indicated that you always thought [Arthur McClearn] was
lying? Correct?
A: Yes.
Q: But you have no recollection of what actually happened? Correct?
A: Correct.
Q: So why would you believe he would be lying?

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A: Because it’s just not in my nature to do what he was saying I did. But
beyond that, earlier that night I hurt my ankle like really bad. My foot was
swollen and I couldn’t get a shoe on because I couldn’t walk due to
intoxication. It didn’t seem likely that after that I would be doing what he
testified to at trial.
Q: But that – it doesn’t seem likely? Correct?
A: Yeah.
Q: But you don’t know because you don’t remember?
A: That’s true.
Commonwealth v. Vogt, 2023 WL 3736814, at *8-13 (Pa. Super. May 31, 2023) (internal
citations and footnotes omitted).
Ultimately, on September 29, 2021, the PCRA court denied Vogt’s fifth PCRA petition
after concluding that the alleged recantation letter from McClearn was inadmissible because
Vogt failed to properly authenticate it. Specifically, the PCRA court explained:
There is not any direct proof to authenticate that the document at issue was
written by Arthur [McClearn]. First, the one-page letter [Vogt] alleges he
received is typewritten, including the signature. Second, there is not a return
address on the envelope the letter allegedly was in to indicate where it was sent
from. Moreover, the original envelope is not available for inspection, and only a
photocopy was produced.
The [c]ourt further finds the circumstantial evidence presented is not sufficient to
authenticate the typewritten letter. [J. McClearn’s] testimony regarding the
format of the signature on the letters he received from Arthur [McClearn] was
conflicting, as he initially stated the signature was in pen, and then stated it was
typed, and then said he was not certain, before settling on that it was typed as his
answer. Further, [J. McClearn] stated he received a letter in 2015 from Arthur
[McClearn] that referenced Arthur [McClearn] had sent a letter to a prison.
However, the envelope from the letter [Vogt] allegedly received was postmarked
October 25, 2016. Moreover, [J. McClearn] testified he had stopped receiving
letters from Arthur [McClearn] in 2013 or 2014. For these reasons, the [c]ourt
finds that the testimony of [J. McClearn] is too indeterminate to support
authentication of the document at issue. Additionally, [Vogt’s] testimony about
statements in the letter that he did not believe were public knowledge are
inadequate to indicate the trustworthiness of the letter.

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Commonwealth v. Vogt, No. 1186 WDA 2021, 2023 WL 3736814, at *17 (Pa. Super. May 31,
2023) (citing PCRA Court Opinion, 9/29/21, at 10 (record citations omitted)). The Superior
Court affirmed the denial of the fifth PCRA petition on May 31, 2023, and, in relevant part, that
court stated:
We agree with the PCRA court’s foregoing findings, which fully are supported by
the record. Instantly, as outlined earlier, J. McClearn’s testimony in support of
[Vogt]’s effort to authenticate the letter was insufficient as it was inconsistent and
incredible. J. McClearn described his relationship with Arthur [McClearn] as
estranged, speaking with Arthur a couple of times, never face-to-face, after
Arthur’s release from prison. J. McClearn then seemingly contradicted himself
on cross-examination, stating that he saw Arthur [McClearn] twice upon Arthur’s
release from prison. J. McClearn did not know where Arthur resided. He
believed Arthur was in a nursing home in 2016, but did not know where or for
how long. Additionally, J. McClearn did not attend Arthur [McClearn]’s funeral
or receive any of his possessions. Yet, despite their limited contact, J. McClearn
claimed that Arthur [McClearn] would send him typewritten letters two to three
times per month until 2013 or 2014, following his release from prison. J.
McClearn further claimed that the letters stopped because Arthur [McClearn] had
moved closer to family, but their communication resumed telephonically. Once
again contradicting himself, J. McClearn claimed that he specifically remembered
that Arthur [McClearn] told him about the October 23, 2016 letter to [Vogt] in a
letter that Arthur [McClearn] had sent to J. McClearn in 2015. The contradiction
continued, when J. McClearn stated that he believed Arthur [McClearn] sent him
letters from the nursing home.
Despite J. McClearn’s claim that he received letters from Arthur [McClearn], he
never observed Arthur’s signature. According to J. McClearn, Arthur [McClearn]
only sent typewritten, and unsigned, letters until 2016 when he was in a nursing
home. Tellingly, even though J. McClearn specifically and clearly recalled
certain dates and years in question, he was unable to recall whether he himself
had provided a written statement prior to the 2021 evidentiary hearing.
Next, [Vogt]’s own testimony to authenticate the letter did not fare any better.
When asked whether anything in Arthur [McClearn]’s letter stood out to him to
cause him to believe that Arthur had personal knowledge of the information
contained within the letter, [Vogt] responded, “Yes. One of the things I noticed
was that the author knew that [Arthur] did not know me prior to that. I don’t
think that is public knowledge anywhere. I’m not sure of that.” [Vogt] continued
stating, “[a]nother thing is he had referred to Walter Cowfer as Sherm. Only
close friends of him referred to him as that.” [Vogt] completely ignored the fact
that Arthur [McClearn] testified at trial that he had known Cowfer for one and
one-half months prior to the murder and that their acquaintance centered around
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drinking. Thus, Cowfer could hardly be considered a stranger. He also ignored
the fact that Arthur [McClearn] testified at trial that he only met [Vogt] on the
evening in question.
[Vogt] intimated that Arthur [McClearn] eluded him, and all of his friends and
family actively working on his behalf over the past two decades. When pressed
for details on how attempts to contact Arthur [McClearn] were made, he could not
provide the details. As mentioned, [Vogt]’s mother actually located Arthur
[McClearn] according to her statement and his father drove her to Arthur’s house
around 2005, on the heels of the 2004 Cowfer affidavit. Yet, despite finding
Arthur [McClearn], [Vogt] stated that he never asked his mother any questions
about him or where he lived. When his mother visited him in prison on July 10,
2017, he failed to inform her of this miraculous recantation letter or his latest
appeal.
Given the insufficiency of the evidence presented by [Vogt] to support the
authentication of the recantation letter, purportedly written by Arthur [McClearn],
we conclude that the PCRA court did not abuse its discretion in declining to admit
it into evidence.
Commonwealth v. Vogt, No. 1186 WDA 2021, 2023 WL 3736814, at *17-18 (Pa. Super. May
31, 2023) (footnotes omitted).
Within weeks of the Superior Court’s decision, Vogt filed his current Rule 60(b) motion
in this case.
2. The McClearn letter is not in the habeas record, and Vogt could not
succeed on a request to expand the record to include it.
Initially, this Court notes that McClearn’s letter is not a part of the habeas record. Vogt’s
attempt at getting it admitted into the record before the state court during the evidentiary hearing
on his fifth PCRA petition failed because he could not properly authenticate it, and in order for
Vogt to carry his burden under Schlup, he must introduce this new evidence into the record. See,
e.g., Johnson v. Bobby, No. 2:08-CV055, 2021 WL 6125049, at *30 (S.D. Ohio Dec. 28, 2021)
(Although the evidence attached to the petitioner’s state court petition for post-conviction relief
was arguably presented to the state court, there is a “critical distinction between state courts
being presented with evidence and state courts having evidence before them . . . .”). Indeed, a
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petitioner may not simply attach documents to his habeas petition, or in this case, his Rule 60(b)
motion, and ask the district court to consider them. “Rather, evidence relied upon by the
petitioner that is not otherwise part of the state court record must be properly admitted into the
record before the district court.” Wilcott v. Wilson, No. 1:07-cv-299, 2010 WL 582367, at *5
(W.D. Pa. Feb. 15, 2010).
Although Vogt has not made a request to expand the record or requested that this Court
hold an evidentiary hearing for purposes of admitting McClearn’s letter into the record, the Court
assumes that by relying on the letter to support his request for relief pursuant to Rule 60(b), that
is exactly what he is attempting to do. See, e.g., Daniels v. Warden, Noble Correctional
Institution, 2022 WL 6765091, at *2 (S.D. Ohio Oct. 11, 2022) (finding that petitioner was
seeking to expand the record to include photographs to support a claim of actual innocence to
overcome a procedural default or statute of limitations bar).
While this Court does have some discretion to expand the record or order an evidentiary
hearing as provided in Rules 7 and 8 of the Rules Governing § 2254 Cases, there are some
constraints worth noting. For example, under Rule 7, which “can be used to introduce new
factual information into the record in lieu of an evidentiary hearing,” Boyko v. Parke, 259 F.3d
781, 790 (7th Cir. 2002), a judge may require that the additional evidence sought to be admitted
be authenticated. Additionally, AEDPA, as codified at 28 U.S.C. § 2254(e)(2), limits the ability
of a federal district court to hold an evidentiary hearing pursuant to Rule 8. See Williams v.
Taylor, 529 U.S. 420, 429-45 (2000). Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that–
(A)

the claim relies on–

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(B)

(i)

a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or

(ii)

a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.

28 U.S.C. § 2254(e)(2). “Under the opening clause of § 2254(e)(2), a failure to develop the
factual basis of a claim is not established unless there is lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner’s counsel.” Williams, 529 U.S. at 432; see also Shinn
v. Ramirez, 142 S. Ct. 1718, 1734-35 (2022). When § 2254(e)(2) does not prohibit a federal
habeas court from holding an evidentiary hearing, it is within the district court’s discretion
whether to hold one under Rule 8 of the Rules Governing § 2254 Cases in the United States
District Courts. See, e.g., Schriro v. Landrigan, 550 U.S. 465, 473-75 (2007). 4
Since the United States Supreme Court issued Shinn, however, this Court recognizes that
precedent is unclear whether the limitations on evidentiary hearings found in § 2254(e)(2)
applies to claims premised on actual innocence under Schlup. Prior to Shinn, courts, including
the Third Circuit, overwhelmingly found that it did not. See Cristin v. Brennan, 281 F.3d 404,
417 (3d Cir. 2002) (concluding that there is no indication that Congress intended § 2254(e)(2)
restrictions on evidentiary hearings to apply to “hearings on excuses to procedural defaults”);
accord Coleman v. Hardy, 628 F.3d 314 (7th Cir. 2010) (finding that the requirements of

In deciding whether to exercise that discretion, the federal habeas court “must consider whether such a hearing
could enable the applicant to prove…factual allegations [that] would entitle [him] to federal habeas relief.” Shinn,
142 S. Ct. at 1739 (quoting Landrigan, 550 U.S. at 474). “‘This approach makes eminent sense,’” Shinn explained,
“for if ‘district courts held evidentiary hearings without first asking whether the evidence the petitioner seeks to
present would satisfy AEDPA’s demanding standards, they would needlessly prolong federal habeas proceedings.’”
Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 208-09 (2011) (Sotomayor, J., dissenting).
4

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2254(e)(2)(A) do not have to be met in order for a court to hold an evidentiary hearing on
whether the petitioner has met the actual innocence threshold necessary to consider the merits of
his procedurally defaulted claim); Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th Cir. 2004);
McSwain v. Davis, 287 F. App’x 450, 462 (6th Cir. 2008); Vineyard v. Dretke, 125 F. App’x
551, 554 (5th Cir. 2005). This is largely because courts have found that the word “claim” in §
2254(e)(2) refers only to the substantive claims for relief upon which the petition for habeas
corpus is based. See Cristin, 281 F.3d at 418-19 (a hearing used to support an excuse for
procedural default is not a hearing on “a claim”). Despite the fact that courts often refer to these
as “claims,” an actual innocence allegation is not a “claim” but instead a “gateway through
which a habeas petitioner must pass to have his otherwise barred constitutional claim considered
on the merits.” Sibley, 377 F.3d at 1207, n.9 (quoting Herrera v. Collins, 506 U.S. 390, 404
(1993)). Shinn, however, “suggests that [t]here is good reasons to doubt’ [the Court of Appeals’]
reading of the word ‘claim’ in Cristin, [but] it [did] not abrogate [Cristin’s] holding that,
generally, AEDPA’s text does not forbid federal courts from developing the facts needed to
excuse a procedural default.” Williams v. Sup’t Mahanoy SCI, 45 F.4th 713, 723 (3d Cir. 2022).
Whether or not he is aware of it, Vogt’s ultimate goal is to introduce McClearn’s letter
into the record and to have this Court evaluate his actual innocence claim in light of the
information provided in the letter. However, whether or not the restrictions on evidentiary
hearings found in § 2254(e)(2) apply to this new evidence appears to be a question not worth
answering. This is because even if this Court was not barred from holding a hearing under §
2254(e)(2), the Court would otherwise decline to exercise its discretion to hold one given that
Vogt already had an evidentiary hearing before the PCRA court, and such a hearing here would
in essence amount to a waste of time and resources since it is abundantly clear that Vogt would

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have the same problems authenticating McClearn’s letter. Indeed, the requirement of
authentication is a condition precedent to admitting evidence. The Federal Rules of Evidence
recognize the requirement of authentication or identification of documentary evidence as a
condition precedent to admissibility, and provides that such requirement is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims. See Fed.
R. E. 901(a) (“[t]o satisfy the requirement of authenticating or identifying an item of evidence,
the proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.”). Vogt had the opportunity to authenticate McClearn’s letter in the
evidentiary hearing on his fifth PCRA petition and the state court found that he could not do so.
Although the state court applied the rule with respect to authenticating evidence under the
Pennsylvania Rules of Evidence, that rule is identical to its corresponding Federal counterpart.
See Pa. R. E. 901 (“Unless stipulated, to satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.”) Vogt does not point to any additional evidence that he
would present at an evidentiary hearing to authenticate McClearn’s letter, and the state court’s
findings regarding authentication are equally applicable here. As such, the Court finds that the
only new evidence Vogt relies on to support his claim of innocence under Schlup is not
admissible and without it Vogt’s Rule 60(b) motion must be denied. Nevertheless, the Court will
proceed in the alternative as if Vogt has satisfied his burden under Schlup and demonstrated that
Rule 60(b) relief is warranted.
3. In the alternative, Vogt’s habeas claims are without merit.
The Court would like to reiterate what it thought it made clear in its opinion denying
Vogt’s previous Rule 60(b) motion. See ECF No. 91, pp. 29-30. That is that Vogt’s habeas

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claims would have been denied as without merit even if they were not untimely or otherwise
procedurally defaulted. 5 Vogt raised four claims in his habeas petition. The Court will proceed
to review each of the claims de novo.
The first claim raised in the petition was a prosecutorial misconduct claim. Specifically,
Vogt alleged that the Commonwealth withheld Brady 6 material from the defense. In Brady, the
United States Supreme Court held “that the suppression by the prosecution of evidence favorable
to the accused . . . violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. To
constitute a Brady violation, the undisclosed evidence must meet three criteria: “‘The evidence
at issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully or
inadvertently; and, prejudice must have ensued.’” Banks v. Dretke, 540 U.S. 668, 691 (2004)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In other words, a petitioner must
establish both “that evidence in the possession of the government was actually suppressed, and . .
. that the suppressed evidence was material.” Slutzker v. Johnson, 393 F.3d 373, 386 (3d Cir.
2004). Materiality “is a ‘reasonable probability’ of a different result” which is “shown when the
government’s evidentiary suppression undermines confidence in the outcome of the trial.” Kyles
v. Whitley, 514 U.S. 419, 434 (1995) (internal quotations omitted).
Vogt claims that the Commonwealth withheld the identity of a male individual who
accompanied Cowfer into the residence of Deiseroth and Mayhugh when Cowfer confessed to

While the Court ultimately dismissed the petition as untimely, it appears that a number of Vogt’s claims, if not all
of them, are also procedurally defaulted.
6
Brady v. Maryland, 373 U.S. 83 (1963).
5

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Landry’s murder. 7 This claim has been addressed in different variations throughout these habeas
proceedings ad nauseam, and most recently the Court essentially addressed it on the merits in its
opinion denying Vogt’s previous Rule 60(b) motion. In pertinent part, this Court stated as
follows:
At the outset, the Court notes that since the initiation of these proceedings
in 2008, Vogt has repeatedly represented to the Court that the identity of the male
individual who accompanied Cowfer into the residence of Deiseroth and
Mayhugh on the morning following Landry’s murder is “Brady” material.
However, simply labeling something as Brady material doesn’t make it so, and
over the last nearly thirteen years, Vogt has never once demonstrated to this Court
that this information actually constitutes Brady material. Indeed, for the
information to constitute true Brady material, Vogt would have to show that the
identity of the unknown individual who accompanied Cowfer into the residence
was exculpatory or impeaching, that said information was willingly or
inadvertently suppressed by the Commonwealth and that had the jury known the
identity of this individual then there was a reasonable probability of a different
verdict. He has not done so.
First the Court notes that all that Vogt has ever produced in support of his
claim that it was McClearn, and not he, who was the unidentified individual who
accompanied Cowfer is a letter allegedly written and signed by Cowfer, his
convicted co-defendant, whose credibility has not only been called into question
by Vogt himself [FN6] but is called into question by this Court for how his story
has changed over the years. However, Cowfer’s letter has never been
authenticated and is signed “Walter S. Cowfer” and now “Walter S. Cowfer, Jr.”
as had appeared in the letters addressed to Vogt’s trial counsel from 1991 and
1997. Nevertheless, even assuming the truthfulness of such information provided
by Cowfer, Vogt has never demonstrated that the Commonwealth ever knew or
could have known of the identity of the unknown male individual who
accompanied Cowfer into the residence, and, in fact, the evidence that was
introduced at trial indicates that it is highly unlikely that they ever did know of
such information as both Deiseroth and Mayhugh testified that neither of them
knew the name of the individual and neither were asked while on the stand
whether they could identity the individual as either Vogt, Sopo or Mcclearn.
Thus, common sense would suggest that neither the police nor the
Commonwealth ever learned of the identity of this individual, at least as it could
have come from Deiseroth and Mayhugh, and the only individuals who actually
did know were those who were present at the residence that morning, including
Cowfer, Sopo, McClearn and Vogt himself. [FN7] However, during his
The Court would like to note for the record that neither Deiseroth nor Mayhugh testified or inferred that the
individual who was with Cowfer that morning was a male. Instead, they referred to this individual as “some other
kid” and “a friend” of Cowfer. See ECF No. 72-2, pp. 5, 16.

7

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testimony, Sopo did not admit to stopping at the residence, and, to the extent one
can speculate that the Commonwealth may have learned of the identity of this
individual through McClearn, counsel for Vogt could have but did not question
McClearn about the stop at the residence or who went inside with Cowfer when
cross-examining him at trial. [FN8] This is most likely because such information
was irrelevant, or, in other words, not “material” to Vogt’s involvement in
Landry’s death. [FN9] Simply put, Vogt has not shown that the identity of this
individual was ever known, or should have been known, by the Commonwealth,
and to the extent that Vogt would like to think of such information as “material,”
even though it was not, then the Third Circuit made clear . . . that . . . he had a
duty to exercise due diligence in investigating this information . . . because since
the beginning of his criminal case, or, at least since his trial, Vogt had a
reasonable basis to believe that the identity of this individual was important. Vogt
clearly had at least two opportunities to investigate. His counsel could have
questioned McClearn, Deiseroth or Mayhugh about the identity of said individual
at trial and Vogt himself could have questioned Cowfer about the identity of said
individual at the scheduled hearing on his first PCRA petition on December 7,
1998. He did neither . . . . The fact is that this is not Brady material . . . .
FN6 In response to why he chose to forgo calling Cowfer as a witness at
the evidentiary hearing scheduled on his first PCRA petition on December
7, 1998, Vogt stated, “When I was transported to court my counsel on that
action showed me a different statement he had made when he was trying
to wriggle out of responsibility, which drastically conflicted with the gist
of what he’s sent me. Because I realized he lacked credibility and so not
to waste the time of the court I withdrew the petition.” (ECF No. 57, p.3,
n.3.)
FN7 It is not clear whether Zawodniak was waiting outside in the car or
not. McClearn testified that the group dropped her off at home before they
went to Deiseroth and Mayhugh’s residence, and Deiseroth testified to
seeking only two people waiting in the car outside. However, Cowfer
stated in his letter dated September 23, 2004 that Zawodniak was waiting
in the car with Vogt and Sopo.
FN8 The prosecutor also did not question McClearn about who it was
that went inside with Cowfer, nor did he question Deiseroth or Mayhugh
about whether they recognized Vogt as being the individual who
accompanied Cowfer inside that morning.
FN9 Vogt has failed to show how the outcome of his trial would have
been different had the jury actually known who it was that accompanied
Cowfer into the residence of Deiseroth and Mayhugh. Even if it was
McClearn, said information is by no means exculpatory as to Vogt’s
involvement in Landry’s death. Whether Vogt was with Cowfer inside the
residence or with the other(s) in the car, is of no importance since both
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Deiseroth and Mayhugh testified that it was Cowfer who incriminated
himself and admitted to killing Landry.
(ECF No. 91, pp.27-29) (emphasis within). When the Third Circuit denied Vogt a certificate of
appealability from the denial of his last Rule 60(b) motion, it specifically found that “there is
inarguably no merit to Vogt’s Brady claim concerning the allegedly withheld evidence of the
identity of the person who accompanied Vogt’s co-defendant during a confession made to two
future Commonwealth witnesses – even assuming, arguendo, that the evidence was favorable to
Vogt and suppressed by the Commonwealth – because that evidence could not ‘reasonably be
taken to put the whole case is such a different light as to undermine confidence in the verdict.’”
(ECF No. 94, p.2) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). There is no merit to
this claim and the Court declines to spend any more time addressing it.
The second and third claims raised in Vogt’s petition are intimately intertwined with his
first claim. To recap, at trial, Deiseroth and Mayhugh testified that Cowfer arrived at their
residence on the morning after the murder and confessed to his participation in the crime. They
further testified that “some other kid”/“friend” of Cowfer, who was never identified at trial,
accompanied Cowfer into their house. Vogt alleges that Cowfer’s confession introduced through
the testimony of Deiseroth and Mayhugh violated his right to confront his accusers under the
Sixth Amendment (claim two) and his right to due process under the Fourteenth Amendment
(claim three). 8
With regard to claim two, Vogt states that because he was the only male co-defendant on
trial with Cowfer, the implications drawn from the testimony of Deiseroth and Mayhugh was that

Vogt’s second and third claims appear to have evolved since the filing of his petition in April 2008. Vogt initially
presented these claims simply as prosecutorial misconduct claims. See ECF No. 4, pp.7-8. However, he appears to
have expounded on them over the years.
8

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it was him who was present with Cowfer that morning when Cowfer confessed and that
Cowfer’s confession inculpated him. Because Cowfer did not testify, Vogt claims that he did not
have the opportunity to test the truth of Cowfer’s confession with cross-examination and
therefore its introduction was a violation of his right to confrontation under the Sixth
Amendment.
The relevant law with respect to this claim is found in Bruton v. United States, 391 U.S.
123 (1968). The Third Circuit recently set forth the law with respect to Bruton and is progeny.
. . . . The Confrontation Clause of the Sixth Amendment guarantees a
criminal defendant’s right to be “confronted with the witnesses against him.”
U.S. Const. amend. VI. This includes the ability to cross-examine witnesses. See
Pointer v. Texas, 380 U.S. 400, 404, 406-07 (1965). When a non-testifying codefendant’s statement is introduced, it is in effect the testimony of a witness who
cannot be cross-examined. Three Supreme Court cases – Bruton; Richardson v.
Marsh, 481 U.S. 200 (1987); and Gray v. Maryland, 523 U.S. 185 (1998) –
establish the relevant controlling precedent. We discuss each in turn.
In Bruton, the Supreme Court held that a defendant’s right to
confrontation is violated when a non-testifying codefendant’s confession is
introduced in a joint trial, and that confession implicates the other defendant. The
Court held that even when the trial court clearly instructs the jury not to consider
the statement against the non-confessing defendant, it “cannot accept limiting
instructions as an adequate substitute for petitioner’s constitutional right of cross
examination.” 391 U.S. at 137. When such “powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with
the defendant, are deliberately spread before the jury in a joint trial,” practically
speaking, it is as though “there had been no instruction at all.” Id. at 135-36. In
this context, “the risk that the jury will not, or cannot, follow instructions is so
great, and the consequences of failure so vital to the defendant, that the practical
and human limitations of the jury system cannot be ignored.” Id. at 135.
The Supreme Court clarified Bruton’s reach in Richardson, holding that
no constitutional violation exists where a confession is redacted to eliminate “not
only the defendant’s name, but any reference to his or her existence.” 481 U.S. at
211. In those cases, a limiting instruction “may well be successful” since there is
not the “overwhelming probability” that the jury will be unable to disregard the
inculpatory confession against the defendant. Id. at 208. The Richardson Court
expressed “no opinion” on whether a confession is admissible when a defendant’s
name is replaced with a “symbol or neutral pronoun.” Id. at 211 n.5. The
Supreme Court refined the acceptable parameters of a redacted confession in
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Gray, holding that redactions cannot be so ineffectual that they actually could
signal to the jury that the co-defendant’s name was deleted. Such obvious
redactions are “similar enough to Bruton’s unredacted confessions as to warrant
the same legal results.” 523 U.S. at 195.
While using a neutral pronoun may satisfy Bruton in some circumstances,
we have clearly stated that courts should not apply a bright-line rule that such use
will never violate Bruton. Bruton and its progeny require courts to take a holistic
approach when considering redacted confessions, by viewing the redaction in the
context of the entire record. See Washington v. Sec’y Pa. Dep’t of Corr., 801
F.3d 160, 167 (3d Cir. 2015) (“It is not enough to say that because there were
redactions of [the defendants’] names that the rules from Bruton and Gray do not
apply.”); United States v. Harwick, 544 F.3d 565, 573 (3d Cir. 2008) (“[T]he
nature of the linkage between the redacted statement and the other evidence in the
record is vitally important in determining whether a defendant’s Confrontation
Clause right has been violated.”).
Johnson v. Superintendent Fayette SCI, 949 F.3d 791, 795-96 (3d Cir. 2020).
In this case, Cowfer’s confession was introduced through the testimony of Deiseroth and
Mayhugh. The relevant testimony from Deiseroth is as follows:
Q:

Tell us what happened at that time.

A:

He come in. Well, he knocked on the door, him and some other kid had
come in. And he asked me if Leonard was there. I asked him what he was
doing at my house that early in the morning. He asked if he could see
Leonard. He was kneeling down talking to Leonard down beside the
couch.

Q.

Were you able to hear what the conversation was about.

A:

Yes.

Q:

And who was talking to each other at that time?

A:

Leonard Mayhugh and Sherman Cowfer.

Q:

What did you hear at that time?

A:

Well, Sherman said, I never thought I could do it. Leonard says, what are
you talking about. I never thought I could do it. I killed somebody.
Come on, Sherman, you didn’t do nothing like that, he said. Yes, I did.
He said, we pushed him over the quarry and blub, blub, blub, to the
bottom of the quarry he went.
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Q:

Did you see how Mr. Cowfer got to your apartment that day?

A:

Yes. A little, blue car. He was driving a little, blue car.

Q:

Do you recall whether or not there was anyone else in that car?

A:

Yes. Two other people besides the one that come in the house with him.

Q:

All right. What happened after that conversation?

A:

He was - - he just said - - and I didn’t believe him. I said, come on,
Sherman, you know. And he was drinking and that. And I just started
watching t.v., and him and Leonard were talking and that. And him and
the other kid got up and left.

Q:

And you had not seen him from that time until today?

A:

Yes.

(ECF No. 72-2, pp.5-7.) The relevant testimony from Mayhugh is as follows:
Q:

What happened on May the 13th?

A:

He showed up at my house. And him and a friend walked in. And he
came in and he kneeled down and he was talking to me. And he says to
me, he says, I don’t believe I did it. He goes, never thought I could do
something like that, but I killed someone. And I really didn’t know if he
was telling the truth like joking around or serious, but the more I looked at
him I knew that he must have. But after he - - after he left and that - -

Q:

Okay. Let’s go into more detail. What else did he say after he said he
killed someone?

A:

Yes. He said he had been out partying and that he says that someone was
giving him trouble or something like that. And he told him to come over
here and he was showing somebody to look over this hill. And he said, I
run and I pushed him over the hill. And he says after that he says he went
down over the hill. He said, we did - - he said we went over the hill and
they drownt this guy. I mean, I didn’t know who it was and that. And I
listened to the news and that and I heard about a guy found in the pond.
But - - and Sherman said that he drownt somebody in the quarry.

Q:

Since that day on the 13th of May, 1990, have you seen Mr. Cowfer?

A:

No, I haven’t.
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(ECF No. 72-2, pp.16-17.)
No objection was made to the introduction of Cowfer’s confession through the testimony
of Deiseroth and Mayhugh by any of the defendants’ attorneys, including no objection by Vogt’s
defense attorney on the basis that the single reference to “we” in Deiseroth’s testimony and the
single reference to “they” in Mayhugh’s testimony somehow violated Vogt’s Sixth Amendment
right to confront a witness against him. 9 As such, no limiting instruction was requested and none
was given.
Despite what Vogt proclaims, the single reference to “we” and “they” in the testimony of
Deiseroth and Mayhugh could not reasonably be said to have inculpated Vogt since there was no
evidence presented at trial that the other individual or individuals Cowfer was referring to when
he confessed was Vogt. Neither Deiseroth nor Mayhugh testified that the other individual who
accompanied Cowfer into their residence that morning was Vogt, nor did they testify that Vogt
was one of the two other individuals who were waiting outside in the car. Furthermore, neither
Deiseroth nor Mayhugh testified that it was a male who came into the house with Cowfer that
morning, nor did they refer to that individual as a “he.” Therefore, it cannot be inferred that it
was in fact Vogt who was with Cowfer in the house just because he was the only other male who
was on trial with Cowfer. And, even if they had referred to the other individual as a “he,” the
jury was very much aware that there were two other male individuals, McClearn and Sopo, who
were also charged with Landry’s murder, and the fact that they had chosen to plead guilty and
not stand trial in no way suggests that the “he” whom Deiseroth and Mayhugh could have been

For this reason alone, this claim would have been deemed waived had Vogt attempted to raise it on direct appeal.
Furthermore, Vogt has never raised a claim of ineffective assistance of trial counsel for failing to object to said
testimony as a violation of Vogt’s Sixth Amendment right to confrontation.

9

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referring to must have been Vogt. As such, the Court does not find that there was a violation of
Vogt’s Sixth Amendment right to confrontation.
Nevertheless, even if the single references to “we” and “they” in Cowfer’s confession as
related by Desieroth and Mayhugh somehow inculpated Vogt and amounted to a violation of his
right to confrontation, the issue then turns on whether that violation had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 638 (1993). “When a federal judge in a habeas proceeding is in grave doubt about whether
a trial error of federal law had a substantial and injurious effect or influence in determining the
jury’s verdict, that error is not harmless.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995)
(quotation marks omitted); Bond v. Beard, 539 F.3d 256, 276 (3d Cir.2008). This Court is not in
grave doubt that the aforementioned references to “we” and “they” in Cowfer’s confession had a
“substantial and injurious effect or influence” on the jury’s verdict. For this additional reason
this claim is without merit.
With regards to claim three, Vogt states that the Commonwealth actually knew that it was
McClearn who was with Cowfer at Deiseroth and Mayhugh’s residence that morning, but he
claims that the Commonwealth knowingly presented false testimony in order to bolster
McClearn’s credibility in violation of Voght’s right to due process.
The relevant law with respect to this claim is found in Napue v. People of State of Ill.,
360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972). In both Napue and
Giglio, the prosecution made agreements with witnesses in exchange for their testimony. Both
witnesses falsely denied the existence of the agreements, and the prosecutors failed to correct
their testimony. In Napue, the Supreme Court held that a conviction is obtained through the use
of false evidence, and therefore violates the Fourteenth Amendment, when the state, “although

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not soliciting false evidence, allows it to go uncorrected when it appears.” 360 U.S. at 269. In
Giglio, the government’s case depended almost entirely on the testimony of a witness whom the
government promised it would not prosecute if he testified. The trial prosecutor had not himself
made the agreement and was unaware of it, but the Court charged him with knowledge of the
agreement made by his predecessor. The Court held that because the evidence was relevant to
the jury’s assessment of the credibility of the witness, a new trial would be “required if ‘the false
testimony could . . . in any reasonably likelihood have affected the judgment of the jury[.]’”
Giglio, 405 U.S. at 154 (quoting Napue, 360 U.S. at 271).
Vogt’s entire claim is premised on the fact that the Commonwealth knew that it was
McClearn who accompanied Cowfer into the residence of Deiseroth and Mayhugh the morning
after Landry’s murder, but Vogt has never once presented any evidence that the Commonwealth
knew the identity of the individual who accompanied Cowfer. The only evidence supporting
Vogt’s position that it was, in fact, McClearn has come from a letter purportedly authored by
Cowfer years after the trial. However, that letter does not impute knowledge onto the
Commonwealth, rendering Vogt’s claim that the Commonwealth knowingly presented false
evidence in violation of his due process rights without merit.
Furthermore, the Court would like to point out that for decades now Vogt has maintained
that the identity of this individual was of vital importance to his defense, but the simple fact is
that it was not. If it were, then Vogt’s trial counsel would have most certainly questioned both
Deiseroth and Mayhugh as to whether Vogt was that individual, as both likely would have been
able to identify the person they saw with Cowfer that morning if that person. Counsel did not do
so because whether Vogt went into the house or waited outside in the car was irrelevant to his
involvement in the crimes with which he charged and of which he was ultimately convicted. In

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other words, the identity of this person would simply not have compelled a different outcome for
Vogt.
In his fourth claim, Vogt alleges that at the time of his trial, he was unaware of the full
extent of the plea agreement offered to Commonwealth witness and co-conspirator, Sopo, which
Sopo entered into on January 14, 1991, approximately two weeks before Vogt’s trial.
Specifically, Vogt claims that he did not know that the plea agreement also covered charges
Sopo was facing in a separate and unrelated case. 10 He states that he first learned the specifics of
the plea agreement on May 28, 2004, after his mother uncovered a copy of the agreement while
checking the criminal records of Sopo. Vogt maintains that the plea agreement was essential to
his own defense at trial, that the Commonwealth engaged in unfair tactics by failing to disclose
to the jury that Sopo’s plea agreement included charges in an unrelated matter, and that his trial
counsel was ineffective in failing to question Sopo about the full benefit he was receiving as part
of the plea agreement.
This claim was raised by Vogt in a second PCRA petition in July 2004. (ECF No. 14-9.)
Counsel was appointed for him who filed an amended and second amended PCRA petition on
Vogt’s behalf. (ECF Nos. 14-10, 14-11.) A PCRA hearing on this issue was held on January 27,
2006, at which time Vogt’s trial counsel testified that at the time of Vogt’s trial he had been
aware of Sopo’s entire plea agreement with the Commonwealth, including his plea to charges in
the separate case; however, he did not feel that the introduction of such evidence would have

It is not entirely clear from the record, but it appears that the charges Sopo was facing in the separate case
included burglary, theft and receiving stolen property. See ECF No. 83-1, p.22. It is also not clear from the record
whether Sopo was sentenced in these cases before or after Vogt’s trial.
10

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benefited Vogt. When asked why he did not question Sopo at trial regarding the specifics of
Sopo’s plea agreement with the Commonwealth, 11 trial counsel testified as follows:
A:

Well, from a trial strategy standpoint, I think as defense attorney I really
would have been ineffective if I had opened up that area with Mr. Sopo.
Because the very charges that he pled guilty to were the same charges that
were charged against Steve [Vogt]. To get into that area would have in
fact amplified his testimony as to what had occurred. To me that would
have made absolutely no sense. And specifically, you will note in the
cross-examination I did not ask about specific charges. And that was the
reason for it.

Q:

Is that your full explanation on why you failed to do that?

A:

It’s my explanation at this point, yes. If I might - - and again, you are
talking about trial strategy. It’s been my impression as a trial attorney that
where you get a witness such as Mr. Sopo who has made the type of deal
that he made with the Commonwealth, that the more you open up the areas
where he in fact has acted with your client, you in effect become almost an
assistant District Attorney at that point. Because you are opening up areas
that are wide open from the standpoint of what he can say relative to your
client. If your question is, do I have a recollection today of having the
specific plea agreement that you have shown to me - -

Q:

Yes.

A:

- - prior to that. My answer is I don’t’ have a recollection of that. But we
knew that he had pled guilty to those charges.

Q:

But you did not know of that specific plea agreement prior to Mr. Vogt’s
trial?

A:

No. That’s not what I said. We knew that he had pled guilty to burglary.
We knew that he had pled guilty to everything that’s on there including - and we knew that he had the deal that he had. And you know, very
frankly, the deal from this standpoint based on what has - - had occurred
may have been a good deal. But it still was a fairly, fairly stringent
sentence of six to 12. He is not and was not the average person you get
that in fact you are trying to impeach by showing that it’s such a

11
It is noted that at trial, Sopo was asked by both the prosecutor and Vogt’s trial counsel whether he entered into a
plea agreement with the Commonwealth for the charges brought against him in connection with Landry’s murder,
which included the condition that he testify on behalf of the Commonwealth, and he answered yes. See ECF No. 72,
pp.104-05, 142-43. However, Sopo was not questioned about the specifics of what sentence he received, or the
Commonwealth would recommend, as a result of that agreement.

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sweetheart deal that it’s a lie. I mean, he didn’t walk away like most
people like to do in that situation. So, that’s my explanation.
(ECF No. 83-1, pp.22-24.)
Even though Vogt’s PCRA petition was ultimately dismissed as untimely (ECF No. 1413), and that ruling was affirmed on appeal (ECF No. 14-17), the PCRA court found that trial
counsel’s failure to question Sopo about his prior convictions and plea agreement at Vogt’s trial
was a matter of reasonable trial strategy and therefore he was not ineffective in his defense of
Vogt at trial (ECF No. 14-14, pp.27-28.).
To the extent this claim is raised as one of ineffective assistance of counsel, Vogt has not
met his burden. Claims of ineffectiveness of counsel are grounded in rights guaranteed under the
Sixth Amendment to the United States Constitution. In Strickland v. Washington, 466 U.S. 668
(1984), the Supreme Court announced a two-prong test that a habeas petitioner must meet before
a federal court can find counsel failed to provide effective assistance under the Sixth
Amendment. Under the first prong of Strickland, often called the “performance” prong, a
petitioner must show that counsel’s performance fell below an objective standard of
reasonableness. Id. at 688. Under the second prong, often called the “prejudice” prong, a
petitioner must demonstrate that the deficient performance prejudiced him, meaning that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at
692. Although a petitioner must satisfy both prongs to succeed on an ineffectiveness claim, the
Supreme Court noted that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be followed.”
Id. at 697.
Vogt has failed to demonstrate deficient performance on the part of his trial counsel or
that he was prejudiced as a result of counsel’s failure to cross-examine Sopo about the additional
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unrelated charges that were covered under his plea agreement. The record demonstrates that
counsel strategically chose not to go into the details of Sopo’s plea agreement with the
Commonwealth and Vogt has not shown that this strategy was objectively unreasonable.
However, even if Vogt could demonstrate that counsel was deficient for failing to question Sopo
on those details, the record shows that the jury was already well aware that Sopo entered into an
agreement with the Commonwealth in exchange for pleading guilty for his part in this case and
Vogt has not shown that the result of his trial would have been any different had the jury been
informed that Sopo’s agreement also encompassed charges in a separate and unrelated matter.
For these reasons, this claim is without merit.
Finally, to the extent Vogt intended this claim as asserting misconduct on the part of the
Commonwealth for what he characterizes as a “knowing presentation of false evidence” when
they elicited testimony from Sopo about his plea agreement with the Commonwealth only as this
case, and not the other unrelated case, his claim is also without merit since there is absolutely
nothing in the record to suggest that the Commonwealth elicited false testimony from Sopo or
failed to correct testimony that they knew to be false.
D. Certificate of Appealability
A certificate of appealability is required to appeal from the denial of a Rule 60(b) motion.
See Bracey v. Superintendent Rockview SCI, 986 F.3d 274, 283 (3d Cir. 2021) (reaffirming
Morris v. Horn, 187 F.3d 333 (3d Cir. 1999), and holding that a certificate of appealability is
required to hear an appeal from the denial of a Rule 60(b) motion). A court should issue a
certificate of appealability where a petitioner makes a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2254(c)(2). The Court finds that Vogt has not made the

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requisite showing in this case. See Slack v. McDaniel, 529 U.S. 473 (2000). A separate order
follows.
____________________
Lisa Pupo Lenihan
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN DAVID VOGT,
Petitioner,
v.
SUPERINTENDENT COLEMAN,
Respondent.

)
)
)
)
)
)
)
)
)

Civil Action No. 08 – 530
Magistrate Judge Lisa Pupo Lenihan
ECF Nos. 95-98

ORDER
AND NOW, this 15th day of August, and in accordance with the Memorandum Opinion
issued contemporaneously herewith,
IT IS HEREBY ORDERED that the Motion for Rule 60(b) Relief (ECF No. 98) is
DENIED.
IT IS FURTHER ORDERED that the Motion for Discovery (ECF NO. 95), Motion for
Judicial Notice of August 23, 2022 Summary Judgment at Civil Action 17-1407 (ECF No. 96)
and the Motion to Appoint Counsel (ECF No. 97) are DENIED a moot.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
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.
_________________________
Lisa Pupo Lenihan
United States Magistrate Judge

Cc:

Steven David Vogt
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BN-3436
SCI Fayette
50 Overlook Drive
LaBelle, PA 15450
Counsel of record
(Via CM/ECF electronic mail)

41