The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KENNETH BROWN, :
Petitioner, :
:
v. : CIVIL ACTION NO. 13-CV-3424
:
BICKELL, et al., :
Respondents. :
MEMORANDUM
Chief Judge Juan R. Sánchez October 26, 2022
Pro se Petitioner Kenneth Brown, a prisoner in Pennsylvania custody and currently serving
an aggregate term of 30 to 60 years of incarceration after his negotiated guilty plea to charges of
third-degree murder, theft, flight to evade apprehension, false imprisonment, abuse of a corpse,
and tampering with evidence,1 has filed a Motion for Relief from Order (ECF No. 18), seeking
relief under Fed. R. Civ. P. 60(b). Brown seeks to reopen the judgment dismissing his Petition for
Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Because the Motion must be deemed
to be an unauthorized second or successive habeas petition over which this Court lacks jurisdiction,
the Motion is dismissed.
I. BACKGROUND
The procedural history and factual background of Brown’s conviction is fully set forth in
the Report and Recommendation (R&R) prepared by Magistrate Judge Carol Sandra Moore Wells.
(ECF No. 9.) Accordingly, the Court outlines only the information necessary to place the instant
Motion in context.
On May 22, 2013, Brown filed a federal habeas petition in which he articulated one claim:
trial counsel were ineffective in that they failed to conduct an adequate investigation or prepare
1 See CP-36-CR-0000353-2009.
defenses and failed to discuss the possibility of a manslaughter verdict with Brown but, rather than
go to trial, instead recommended that Petitioner accept the guilty plea offered by the
Commonwealth. Pet. (ECF No. 1-1) at 8 ¶ 12; Resp. (ECF No. 6) at 4 ¶ 14. The Commonwealth
responded that the claim lacked merit. Resp. at 4 ¶ 15. This Court referred the matter to Magistrate
Judge Wells, who recommended that this Court find Brown’s claim lacked merit and that he not
be afforded habeas relief. R&R (ECF No. 9). Petitioner did not file objections. After careful and
independent consideration, on June 15, 2015, this Court agreed, found the claim lacked merit;
approved and adopted the Report and Recommendation; denied the petition; and denied a
certificate of appealability. Order (ECF No. 12).
In the current Motion, Brown seeks relief pursuant to Rule 60(b). Re-asserting that his trial
counsel were ineffective, he asserts that this Court and the state courts erred in multiple ways by
finding his counsel were not ineffective and therefore also by upholding his guilty plea and
negotiated sentence (ECF No. 18 throughout, & esp. at 25-33.)2
II. STANDARDS
A. Federal Rule of Civil Procedure 60
Federal Rule of Civil Procedure 60(b) provides as follows:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
2 The Court adopts the pagination supplied by the CM/ECF docketing system.
Fed. R. Civ. P. 60(b). Rule 60(c) in turn provides the timing within which a Rule 60(b) motion
must be made: either within a year of the entry of order or judgment from which the motion seeks
relief if the motion is made pursuant to Rule 60(b)(1), (2), or (3), or “within a reasonable time” if
the motion is made under any other provision. Fed. R. Civ. P. 60(c).
B. Second or Successive Habeas Petitions
Because this is a federal habeas action, the Court must evaluate whether the Rule 60(b)
Motion is actually an unauthorized second or successive habeas petition. That is because the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in relevant part at 28
U.S.C. § 2244(b), mandates that before a state prisoner may file a second or successive habeas
petition in which he challenges a judgment of sentence that he previously challenged in a federal
habeas action, must first obtain an order from the appropriate court of appeals authorizing the
district court to consider the application. 28 U.S.C. § 2244(b)(3)(A); see, e.g., Magwood v.
Patterson, 561 U.S. 320, 330-31 (2010); United States v. Winkelman, 746 F.3d 134, 135 (3d Cir.
2014); In re Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per curiam). Importantly, AEDPA’s
allocation of “gatekeeping” responsibilities to the courts of appeals has divested district courts of
jurisdiction over habeas applications that are second or successive. See, e.g., Burton v. Stewart,
549 U.S. 147 (2007). A habeas petitioner cannot avoid AEDPA’s second or successive
gatekeeping mechanism by raising habeas claims in a filing that he designates as a Rule 60(b)
motion. See, Brian R. Means, Federal Habeas Manual § 11:42 (2022) (a habeas petitioner “is not
permitted to circumvent AEDPA’s second or successive petition requirements simply by labeling
the petition or motion as something other than what it is”).
In Gonzalez v. Crosby, 545 U.S. 524 (2005), the United States Supreme Court addressed
the circumstances in which using Rule 60(b) is “inconsistent with” AEDPA’s second or successive
petition requirements and, as a consequence, not available to a state prisoner seeking habeas relief.3
It explained that a Rule 60(b) motion must be construed as a “second or successive habeas corpus
application” when it advances one or more “claims.” Id., 545 U.S. at 531-32 (quoting § 2244(b)(1)
and (2)). “In most cases,” the Supreme Court observed, “determining whether a Rule 60(b) motion
advances one or more ‘claims’ will be relatively simple.” Id. at 532. “A motion that seeks to add
a new ground for relief . . . will of course qualify.” Id. The Supreme Court further instructed that
a petitioner is also advancing a habeas claim in a Rule 60(b) motion if he “attacks the federal
court’s previous resolution of a claim on the merits, since alleging that the court erred in denying
habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under
the substantive provisions of the statutes, entitled to habeas relief.” Id. (footnote omitted).
Similarly, a motion that seeks to present newly discovered evidence in support of a claim that was
previously denied represents a habeas claim. Id.
In contrast, a motion is a “true” Rule 60(b) motion if it challenges a procedural ruling made
by the district court that precluded a merits determination of the habeas petition, or “challenges a
defect in the integrity of the federal habeas proceedings,” such as an assertion that the opposing
party committed fraud upon the court. Id. at 532 and n.4.
III. DISCUSSION
Because, pursuant to 28 U.S.C. § 2244(b)(2), a federal court does not possess jurisdiction
to review an unauthorized second or successive habeas petition cloaked as a Rule 60(b) Motion,
the threshold question before the Court is whether Brown’s Rule 60(b) motion is a true Rule
60(b) motion, or, in reality, a successive habeas petition. The answer to this question is clear.
3 “Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings
under 28 U.S.C. § 2254 only ‘to the extent that [it is] not inconsistent with’ applicable federal
statutory provisions and rules.’” Gonzalez, 545 U.S. at 529 (footnote omitted, bracketed text added
by Supreme Court) (quoting what is now Rule 12 of the Rules Governing Section 2254 Cases).
Because Brown is again asserting that counsel were ineffective, and that this Court erred on the
merits, he is presenting a substantive claim that challenges his judgment of sentence. Therefore,
the Motion must be construed as an unauthorized second or successive habeas petition. Because
he has not received authorization from the Court of Appeals to file another federal habeas
petition in order to attack that judgment of sentence, this Court lacks jurisdiction to consider
those claims.
An appropriate Order dismissing the Rule 60(b) Motion for lack of jurisdiction and
finding no probable cause to issue a certificate of appealability follows.
BY THE COURT:
/s/ Juan R. Sánchez
__________________________
JUAN R. SÁNCHEZ, C.J.