The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARK A. BROWN, :
Petitioner, :
:
v. : CIVIL ACTION NO. 13-CV-3068
:
JOHN KERESTES, et al., :
Respondents. :
MEMORANDUM
ROBRENO, J. DECEMBER 16, 2022
Pro se Petitioner Mark A. Brown, a prisoner in state custody serving a life sentence for
first-degree murder and a term of years for related convictions, has filed a Motion for Relief
from Judgment Under Fed. R. Civ. P. 60(b). (See ECF No. 53.) 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 prepared by Magistrate Judge Lynn A. Sitarski. (ECF No. 37.)
Accordingly, the Court outlines only the information necessary to place the instant Motion in
context. As part of her Report, Magistrate Judge Sitarski recommended that Ground Six of
Brown’s habeas corpus petition, asserting that trial counsel was constitutionally ineffective for
failing to explain to Brown that he had a right to testify in his own defense, was both
procedurally defaulted and meritless. As part of the procedural default analysis, Magistrate
Judge Sitarski determined that because the claim was found to be untimely when Brown
attempted to raise it on PCRA review, the claim was procedurally defaulted on federal habeas
review. (Id. at 16-17.) Nonetheless, as part of a determination whether the claim could be
resurrected under the narrow holding of Martinez v. Ryan, 132 S.Ct. 1309 (2012) due to PCRA
counsel’s alleged ineffectiveness in failing to raise the trial counsel ineffectiveness issue,
Magistrate Judge Sitarski also had cause to analyze whether the underlying claim was
meritorious. (ECF No. 37 at 20 (analyzing under Martinez whether Brown could show the
underlying trial counsel ineffectiveness issue was ‘“substantial,’ meaning that it has ‘some
merit’”).) Magistrate Judge Sitarski recommended that the claim of trial counsel ineffectiveness
was meritless (stating that because Brown “has failed to show that counsel’s alleged error
prejudiced his trial, his claim fails under [the test in] Strickland [v. Washington, 466 U.S. 668,
687 (1984)] and is without merit”), and that the claim, therefore, was not “substantial” under the
Martinez analysis. (Id. at 17.) The Court adopted the Report and Recommendation, overruling
Brown’s objection with regard to this issue. (See ECF No. 48 at 3, n.1 (“The Court agrees with
the R&R that even if counsel did fail to fully inform Petitioner of his right to testify, the habeas
petition does not adequately explain how such an error impacted Petitioner’s case [because he
could not demonstrate the prejudice prong of Strickland]”.).)
In the current Motion, Brown seeks relief pursuant to Rule 60(b) based on the issue
concerning trial counsel and PCRA counsel ineffectiveness for failing to adequately explain his
right to testify at trial. He asserts that PCRA counsel should have recognized that a violation of
Strickland occurred at trial, and it was unreasonable under Martinez for him not to raise the issue
of trial counsel ineffectiveness in the PCRA process. (ECF No. 53 at 5-7.)1
1 The Court adopts the pagination supplied by the CM/ECF docketing system.
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.
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, he 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. Brian R. Means, FEDERAL HABEAS MANUAL § 11:42, Westlaw
(database updated May 2019) (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 the utilization of 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.2 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
2 “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).
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.
The issue of whether trial counsel was constitutionally ineffective for failing to explain Brown’s
right to testify was adjudicated on the merits even though it was alternatively determined to be
procedurally defaulted. Because there was a merits determination of the issue, Brown’s Rule
60(b) Motion must be construed as an unauthorized second or successive habeas petition to the
extent that in it he is challenging his judgment of sentence. Because Brown 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:
Cauarde . Rebrene
EDUARDO C. ROBRENO, J.