HILL v. LANE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHAWN HILL, :

Petitioner, :

:

v. : CIVIL ACTION NO. 17-CV-1076

:

JAY LANE, et al., :

Respondents. :

MEMORANDUM

RUFE, J. FEBRUARY 21, 2023

Pro se Petitioner Shawn Hill, a prisoner in state custody serving a mandatory life

sentence for murder and lesser terms of imprisonment on other charges, has filed a Motion for

Relief from Judgment Under Fed. R. Civ. P. 60(b).1 Hill 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 Hill’s conviction is fully set forth in the

Report and Recommendation (“R&R”) prepared by Magistrate Judge Elizabeth T. Hey, which

this Court adopted in approving the R&R.2 Accordingly, the Court outlines only the information

necessary to place the pending Motion in context. After completing his direct appeal and

proceedings under the Pennsylvania Post Conviction Relief Act (“PCRA”), in which Hill raised a

claim pursuant to Brady v. Maryland,3 Hill filed his federal habeas petition raising the Brady

1 See ECF No. 46.

2 ECF Nos. 32, 36.

3 373 U.S. 83 (1963).

claim as well as claims of trial court error involving DNA and fingerprint analyses, ballistics

evidence, and a claim of prosecutorial misconduct.4 The R&R determined that the Brady claim

was exhausted, reviewed the law applicable to the Brady claims under the AEDPA standard, and

concluded that the state court’s decision was neither contrary to nor an unreasonable application

of Brady and its progeny.5 Specifically, the R&R found that there was nothing in the state court

record to indicate that bullet fragments extracted from Hill’s surviving victims were provided to

the police and suppressed by the Commonwealth. Therefore, there was no way to determine

whether meaningful ballistics analysis of the alleged fragments would have been possible or

whether such analysis would have been exculpatory.6 Moreover, even if the bullet fragments

existed, they would not have been exculpatory, nor would they have impeached any of the

Commonwealth’s evidence because no ballistics evidence directly incriminated Hill and the trial

court convicted Hill based on the testimony of numerous eyewitnesses.7 The Court overruled

Hill’s objections and adopted the Report and Recommendation by Order filed on September 4,

4 ECF No. 32 at 9.

5 Id. at 15-18 (citing Dennis v. Sec’y, 834 F. 3d 263 (3d Cir. 2016) (“The focus [in considering a Brady claim] is

disclosure by the prosecutor, not diligence by the defense.”). The Pennsylvania Superior Court had determined that

Hill failed to establish that there was ballistics evidence that was favorable to him, that such evidence was

suppressed by the Commonwealth, and that prejudice ensued, stating “[m]ost glaringly, [Hill] points to nothing in

the record that proves the Commonwealth suppressed evidence. Instead, [Hill] notes that the Commonwealth

‘presumably’ had the medical records of the victims . . . and ‘presumably had knowledge that the projectiles were

removed from their bodies.’ [Hill] cannot meet his burden with unsupported presumptions. Furthermore, as no

ballistics evidence offered at trial incriminated [Hill], the missing evidence was not material, because no testing on

the bullets removed from the victims could have exculpated [him] or impeached the Commonwealth’s evidence

against him.” ECF No. at 16 (quoting state court record).

6 ECF No. 32 at 18.

7 Id. at 19. The R&R determined that the other claims were unexhausted and procedurally defaulted. Id. at 22-31.

Hill’s Rule 60(b) Motion is not directed to any of these claims.

2019, and declined to issue a certificate of appealability.8 The Court of Appeals for the Third

Circuit denied Hill a certificate of appealability on April 27, 2020.9

In the current Motion, Hill seeks relief pursuant to Rule 60(b). He asserts that the

resolution of the Brady claim should be set aside based on the decision of the United States

Court of Appeals for the Third Circuit in Bracey v. Superintendent Rockview SCI.10 Specifically,

Hill argues that he should be permitted to revisit the issue of whether the state court’s resolution

of whether the Commonwealth illegally suppressed ballistics evidence was proper.11

II. LEGAL 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.12

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

8 ECF Nos. 36, 37.

9 ECF No. 45. In denying the certificate of appealability, the Third Circuit stated, inter alia, that “Hill’s first claim

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), is meritless for substantially the reasons discussed in the

Magistrate Judge’s report.” Id. at 1.

10 986 F.3d 274 (3d Cir. 2021). See ECF No. 46 at 1. The Court adopts the pagination supplied by the CM/ECF

docketing system.

11 ECF No. 46 at 9-12.

12 Fed. R. Civ. P. 60(b).

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.13

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.14 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.15 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.16

In Gonzalez v. Crosby, the United States Supreme Court addressed the circumstances in

which a motion filed as under 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

13 Fed. R. Civ. P. 60(c).

14 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).

15 See, e.g., Burton v. Stewart, 549 U.S. 147 (2007).

16 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.”).

relief.17 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

Under 28 U.S.C. § 2244(b)(2), a federal court does not possess jurisdiction to review an

unauthorized second or successive habeas petition filed as a Rule 60(b) Motion, the threshold

question before the Court is whether Hill’s Rule 60(b) motion is a true Rule 60(b) motion, or, in

17 545 U.S. 524 (2005). “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.’” Id. at 529 (footnote omitted, bracketed text added by Supreme Court) (quoting what is now

Rule 12 of the Rules Governing Section 2254 Cases).

reality, a successive habeas petition. Here, Hill’s Brady claim was adjudicated on the merits

under the AEDPA standard and therefore is not properly brought under Rule 60(b).

Hill’s arguments regarding Bracey do not alter this result. In Bracey, the Third Circuit

evaluated an appeal based on the statutory limitation that requires a petitioner attacking his state

conviction to file his habeas petition in federal court within one year of the date on which the

“factual predicate of the claim” could have been “discovered through the exercise of due

diligence.”18 The decision focuses squarely on what due diligence a petitioner must be required

to undertake in regard to the discovery of evidence for a Brady violation.

Bracey’s initial federal habeas petition asserting Brady claims based on allegedly

withheld material exculpatory evidence was dismissed as untimely under 28 U.S.C.

§ 2244(d)(1)(D).19 The district court found that the allegedly exculpatory evidence was a matter

of public record that petitioner could have discovered through the exercise of due diligence and

more than one year had passed since the factual predicate for the Brady claim could have been

discovered.20 However, in 2016, the Third Circuit ruled in Dennis that a defendant does not

have a duty to search public records for undisclosed Brady material because Brady is an

affirmative duty for the prosecution to disclose information and allows defendants to presume

the government will fulfill that obligation.21 After the ruling in Dennis, Bracey moved for

reconsideration under Rule 60(b), alleging that since the ruling made clear “‘there is no due

diligence requir[e]ment under Brady for defendants to discover impeachment material and it is

stric[t]ly the duty of the prosecutor to provide this information,’ § 2244(d)(1)(D) does not require

18 Bracey, 986 F.3d at 278 (citing 28 U.S.C. § 2244(d)(1)(D)).

19 Id. at 280.

20 Id.

21 See Dennis, 834 F.3d at 289-91.

petitioners in his position to undertake efforts to find exculpatory material.”22 The court

reasoned that the due diligence requirement is a highly context-specific analysis that involves an

assessment of what the petitioner reasonably would have expected from investigative efforts.23

The court determined that its decision in Dennis constituted a material change in the decisional

law with respect to the reasonable expectations of a petitioner in Bracey’s position and thus

shifted the ground on which Bracey’s habeas petition was dismissed.24 The Third Circuit

ultimately concluded that “[a] petitioner’s failure to search for Brady material of which he is

unaware and which he is entitled to presume is non-existent does not fall short of the diligence

required by § 2244(d)(1)(D)” and that its decision in Dennis “changed the relevant decisional

law on which the dismissal of Bracey’s underlying habeas petition rested.”25 Thus, the district

court decision was vacated and remanded for consideration of Bracey’s Rule 60(b) motion.26

The Third Circuit was clear that the scope of its holding was narrow. First, “[t]he

baseline expectations that Dennis established for Brady claimants in the context of AEDPA’s

due diligence requirements hold true only where the petitioner has no reasonable basis in fact to

be aware of the potential Brady material.”27 Second, “[a]nd as far as Brady claims go, due

diligence requirements remain substantial: If there is a reasonable basis for a petitioner to believe

additional investigation will yield undisclosed Brady material, that petitioner must investigate or

else risk the statutory consequences.”28

22 Bracey, 986 F.3d 280-81.

23 Id. at 288-89.

24 Id. at 291.

25 Id. at 291, 294.

26 Id. at 297.

27 Id. at 294 (internal citation and quotation marks omitted).

28 Id. at 294.

Hill’s claim does not fall within the scope of Bracey because the Brady claim in the

original habeas petition was not dismissed on procedural grounds as untimely for a failure to

exercise due diligence. It was dismissed on its merits because the state court’s adjudication of

the claim was neither contrary to nor an unreasonable application of Brady. Nor does Hill posit

that there is Brady material in the form of otherwise undisclosed ballistics evidence, regardless

of whether he had a reasonable basis to believe additional investigation would disclose it. Thus,

the change in decisional law has no effect on the Court’s prior ruling dismissing the Brady claim

on the merits under the AEDPA standard.

Rather than a “true” Rule 60(b) motion, Hill’s Motion clearly seeks a new merits

determination of his Brady claim.29 His Bracey argument, however, is nothing more than a

fishing expedition seeking to open the door to discover new evidence notwithstanding the fact

that his Brady claim was dismissed on the merits because the state court’s finding that ballistics

evidence would not have been exculpatory was not an unreasonable application of Brady.

Therefore, the 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 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 will be entered.

29 See ECF No. 46 at 6 (arguing that, like in Bracey, “it is equally apparent [] that the Magistrate and this District

Court had misapprehended what a person in [Hill’s] position would have ‘reasonable expected’ about the possibility

of wrongfully withheld ballistics – namely, that without any reason for believing the prosecution had failed to

comply, [Hill] was entitled to rely on the prosecutor’s fulfilling its Brady obligation.”); see also id. at 12 (seeking

discovery and an evidentiary hearing).