CLARK v. BEARD

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RONALD CLARK, :

:

Petitioner, : CIVIL ACTION NO. 10-3164

:

v. :

:

JOHN E. WETZEL, Commissioner, :

Pennsylvania Department of Corrections; :

LOUIS B. FOLINO, Superintendent of the :

State Correctional Institution at Greene; and :

MARIROSA LAMAS, Superintendent of :

the State Correctional Institution at :

Rockview, :

:

Respondents. :

MEMORANDUM OPINION

Smith, J. September 25, 2023

When a habeas petitioner files a motion seeking relief from the dismissal or denial of their

habeas petition pursuant to Federal Rule of Civil Procedure 60(b), a district court must review the

motion to determine if it is a “true” Rule 60(b) motion, or if it is actually a second or successive

habeas petition for which the petitioner would first need authorization from the Third Circuit Court

of Appeals before filing it in this court. Under the applicable precedent from the United States

Supreme Court, a “true” Rule 60(b) motion is one that challenges a procedural ruling by the district

court that precluded a merits determination of the habeas petition, such as a statute-of-limitations

bar, failure to exhaust state remedies, or procedural default. A “true” Rule 60(b) motion is also

one that seeks relief by identifying a defect in the integrity of the habeas proceedings, such as if

the opposing party committed fraud upon the court. If the court determines that the motion is not

a “true” Rule 60(b) motion, the district court must treat the motion as an unauthorized second or

successive habeas petition over which the district court lacks subject-matter jurisdiction.

Here, the pro se movant is currently serving a life sentence for a murder, and related

offenses, committed in Philadelphia in October 1993. He has spent most of the past 30 years

challenging the charges against him, his convictions, and his sentence. He spent a portion of that

period litigating a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court, where

he raised six ineffective assistance of counsel claims, an equal protection claim (combined with an

ineffective assistance of counsel claim) based on the Commonwealth allegedly improperly striking

Black prospective jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and a due process

violation under Brady v. Maryland, 373 U.S. 83 (1963), pertaining to the Commonwealth allegedly

failing to disclose certain information about an eyewitness who testified during the trial. The court

thoroughly reviewed those claims, with great assistance from the comprehensive report and

recommendation crafted by the assigned magistrate judge, and denied them all on the merits in

2015. Although the movant challenged the denial on appeal, the Third Circuit declined to issue a

certificate of appealability.

Slightly more than seven years later, the movant filed his first Rule 60(b)(6) motion, based

in large part on allegedly newly discovered evidence pertaining to various incidents of misconduct

in other criminal cases committed by the two lead detectives who investigated his case. This

information led the movant to conduct additional research, during which he discovered an alleged

Brady violation, based on the Commonwealth failing to turn over evidence of misconduct

concerning one of those detectives prior to his trial.

After reviewing this first Rule 60(b)(6) motion, the court concluded that it was not a “true”

Rule 60(b) motion insofar as the movant was seeking to assert new claims, instead of challenging

a procedural ruling or alleged defect in the integrity of the prior habeas proceedings. As such, the

court characterized it as an unauthorized second or successive section 2254 petition over which

the court lacked jurisdiction. Instead of dismissing it, the court determined that the interests of

justice warranted transferring it to the Third Circuit, which later denied the movant’s application

for authorization to file a second or successive section 2254 petition.

The movant, incorrectly claiming that he had withdrawn his application for authorization

to file a second or successive section 2254 petition, has now returned here with a new Rule 60(b)(6)

motion in which he “cured” the defects identified with the prior motion. Despite this assertion, and

upon closer examination, the movant is essentially replicating his first Rule 60(b)(6) motion. He

argues the same Brady claim and identifies the same evidence showing acts of misconduct in other

cases committed by the two lead detectives. The only differences in the current motion are that the

movant now claims that (1) the Third Circuit’s decision in Dennis v. Secretary, Pennsylvania

Department of Corrections, 834 F.3d 263 (3d Cir. 2016) constitutes a change in controlling

precedent applicable to his case and (2) he can demonstrate his actual innocence. These differences

are wholly incapable of reforming the instant motion into a true Rule 60(b)(6) motion.

As the famous proverb goes: “When I see a bird that walks like a duck and swims like a

duck and quacks like a duck, I call that bird a duck.” Here, despite the movant’s attempt to contort

his habeas claims into a true Rule 60(b) motion by referencing actual innocence and Dennis, it

relies on the same primary claims as his prior motion that this court construed to be an unauthorized

second or successive habeas petition, references most of the same supporting evidence as the prior

motion, and asserts an actual innocence claim based on several arguments that this court rejected

as part of his habeas action. Thus, as with the prior motion, the instant motion does not challenge

a procedural ruling which prohibited a merits analysis in the habeas action (as there is no

procedural ruling to challenge) or demonstrate a defect in those habeas proceedings. Accordingly,

the court is once again faced with an unauthorized second or successive habeas petition which, on

this occasion, the court will dismiss instead of transferring it to the Third Circuit.

I. PROCEDURAL HISTORY

In December 1994, a jury sitting in the Court of Common Pleas of Philadelphia County

convicted the pro se movant, Ronald Clark (“Clark”), of multiple offenses, including first-degree

murder.1 See Commonwealth v. Clark, No. 2142 EDA 2021, 2023 WL 2151613, at *1 (Pa. Super.

Feb. 22, 2023). The facts underlying those convictions have been previously set forth as follows:

At approximately 9:30 p.m. on the evening of October 7, 1993 Aineis Sunn

Life and his friend, Kevin Pettiway, were ordering food at the Wayne Junction Deli

at 4500 North 20th Street in Philadelphia. While standing in the order line Mr. Sunn

Life asked [Clark], who was standing behind him to “back up off me.” [Clark]

replied “Oh, it’s like that,” and left the Deli. According to the record there was no

previous relationship between Mr. Sunn Life and [Clark]. Kevin Pettiway heard the

exchange between Mr. Sunn Life and [Clark].

[Clark] was observed by Nigel Bell, a man who lived in the vicinity and

happened to be a close friend of Mr. Sunn Life, as he exited the Deli. Mr. Bell

watched [Clark] walk away from the Deli to a playground where he spoke with the

co-defendant, Kevin Dwight. Mr. Bell knew Mr. Dwight and also knew from prior

observations that Mr. Dwight always carried a shotgun inside an umbrella. Mr. Bell

saw [Clark] whisper into Mr. Dwight’s ear, and then observed Mr. Dwight hand

[Clark] the umbrella containing the shotgun. [Clark] returned to the Deli at a fast

pace.

Sherry Taggart, who was employed to sweep the parking lot of the Deli,

observed [Clark] enter the Deli with the umbrella. Ms. Taggart clearly recalled her

observation of [Clark] as it was not raining, thus, she found it strange that he was

carrying an umbrella. Mr. Pettiway was standing next to Mr. Sunn Life when

[Clark] re-entered the Deli. Mr. Sunn Life was standing at the cash register when

[Clark] held the shotgun to the back of his head and asked Mr. Sunn Life “What

you got to say now m_________ ?” [Clark] pulled the trigger and Mr. Sunn Life

was declared dead at the scene, the result of a massive shotgun blast to the side of

his head.

Mr. Bell after observing [Clark’s] encounter with Mr. Dwight in the

playground, and hearing the shotgun blast, immediately entered the Deli. It was at

1 This was actually Clark’s retrial. He was first tried before a jury in July 1994, with that trial ending in a mistrial

when the jury was unable to reach a unanimous verdict. See Resp. to Pet. for Writ of Habeas Corpus at 5, Doc. No.

32.

that point Mr. Bell realized his friend had been shot. Mr. Bell took Mr. Sunn Life’s

chain from his neck, to return it to his family, before the police arrived. Mr. Bell

exited the Deli and confronted Mr. Dwight about the shooting. Mr. Dwight told Mr.

Bell, “Don’t worry I’ll take care of it.” The next day a woman Mr. Bell knew as an

associate of Mr. Dwight, brought a shotgun to Mr. Bell’s home. The ballistics

expert testified that a shotgun shell recovered from the scene had been fired from

the shotgun delivered to Mr. Bell’s home the day after the shooting.

Commonwealth v. Clark, 710 A.2d 31, 34–35 (Pa. 1998) (third to last alteration in original)

(internal footnote omitted), abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d

385 (Pa. 2003).

Clark’s case then proceeded to a penalty-phase hearing, after which the jury sentenced him

to death. See id. Clark appealed from his conviction and death sentence, which was upheld by the

Pennsylvania Supreme Court. See id. at 43. Although Clark also filed a petition for a writ of

certiorari with the United States Supreme Court, the Court denied the petition on April 19, 1999.

See Clark v. Pennsylvania, 526 U.S. 1070 (1999).

Clark then challenged his convictions and death sentence on state collateral review by filing

a petition under Pennsylvania’s Post Conviction Relief Act, 42 Pa. C.S. §§ 9541, et seq., on May

17, 1999. See Commonwealth v. Clark, 961 A.2d 80, 83 (Pa. 2008). In 2003, the PCRA court

granted Clark a new penalty hearing due to his counsel’s ineffectiveness in failing to present

certain mitigation evidence, and denied his request for a new trial on those charges upon which he

was convicted. See id. at 83 n.1, 84. Clark appealed from the denial of PCRA relief on his guilt-

phase claims to the Pennsylvania Supreme Court. See id. On December 17, 2008, the Pennsylvania

Supreme Court affirmed the PCRA court’s denial of his guilt-phase claims. See id. at 83, 96. On

August 16, 2011, the PCRA court resentenced Clark to life imprisonment without the possibility

of parole on his first-degree murder conviction. See Clark, 2023 WL 2151613, at *3. Clark did not

appeal from this sentence. See id.

In between the Pennsylvania Supreme Court affirming the PCRA court’s denial of Clark’s

PCRA claims pertaining to the guilt phase of his case and the PCRA court resentencing him to life

imprisonment, Clark filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in

this court, which the clerk of court docketed on June 29, 2010. See Doc. No. 1. Soon thereafter,

Clark filed a motion for the appointment of counsel, which the Honorable Timothy J. Savage

granted on August 5, 2010. See Doc. Nos. 4, 5. Clark then filed a counseled amended habeas

petition on February 9, 2012. See Doc. No. 12. This amended habeas petition included the

following claims:

1. Trial counsel was ineffective for failing to reasonably investigate, develop

and present evidence to impeach the credibility of the three Commonwealth

witnesses that purported to identify Mr. Clark; appellate counsel was

ineffective for failing to raise these meritorious issues on direct appeal.

. . .

2. The Commonwealth violated its obligations under Brady v. Maryland by

failing to disclose evidence that could have been used to impeach the

Commonwealth’s key witness.

. . .

3. The trial court erred in giving a “flight” instruction as to Mr. Clark; trial

counsel was ineffective in failing to pursue a curative instruction; and

appellate counsel was ineffective for failing to raise this meritorious issue

on direct appeal.

. . .

4. Trial counsel was ineffective for failing to present adequate evidence to

support Mr. Clark’s alibi defense; appellate counsel was ineffective for

failing to raise this meritorious issue on direct appeal . . . .

5. Trial counsel was ineffective for failing to present the Stop ‘N Go

videotapes from the night of the shooting; appellate counsel was ineffective

for failing to raise this meritorious issue on direct appeal . . . .

6. The trial court improperly instructed the jury on the meaning of reasonable

doubt; trial and appellate counsel were ineffective . . . .

7. Trial counsel was ineffective for failing to renew his motion to suppress

upon learning of the police misconduct during the photo arrays; appellate

counsel was ineffective . . . .

8. The prosecutor used her peremptory challenges in a racially discriminatory

manner; Trial and appeal counsel were ineffective . . . .

Am. Pet. for Writ of Habeas Corpus at ECF pp. 2–4, Doc. No. 12 (use of small caps omitted).

Approximately a month after Clark filed the amended habeas petition, Judge Savage

referred the case to the Honorable David R. Strawbridge for the preparation of a report and

recommendation. See Doc. No. 13. While the case was before Judge Strawbridge, Clark filed a

supplement to his amended habeas petition, where he claimed that he should be released due to

the Commonwealth’s failure to provide all the original surveillance videotapes from the crime

scene. See Suppl. to Am. Pet. for Writ of Habeas Corpus at ECF p. 4, Doc. No. 31. After the

amended petition, as supplemented, was fully briefed, this matter was reassigned from Judge

Savage’s calendar to the undersigned’s calendar on April 22, 2014. See Doc. No. 46.

On June 1, 2015, Judge Strawbridge issued a comprehensive report recommending that the

court deny the amended habeas petition without an evidentiary hearing and decline to issue a

certificate of appealability. See Doc. No. 48. Regarding his analysis of the claims in the amended

petition, Judge Strawbridge determined that the state courts had reasonably adjudicated each claim

and as such, Clark claims were meritless, and he was not entitled to habeas relief. See R. & R. at

1, Doc. No. 48.

On June 11, 2015, Judge Strawbridge entered a separate memorandum opinion and order

addressing a motion for discovery Clark had filed on August 14, 2013. See Doc. Nos. 41, 53–54.

On August 14, 2015, Clark filed objections to the report and recommendation, and the respondents

filed a response to the objections on September 30, 2015. See Doc. Nos. 55, 59. On November 18,

2015, this court entered an order (1) overruling Clark’s objections to Judge Strawbridge’s report

and recommendation, (2) approving and adopting the report and recommendation, (3) denying the

amended habeas petition without an evidentiary hearing, and (4) declining to issue a certificate of

appealability. See Doc. No. 60.

On December 16, 2015, Clark appealed from the denial of his amended habeas petition to

the Third Circuit Court of Appeals. See Doc. No. 62. On April 24, 2017, the Third Circuit affirmed

the denial of the petition. See Clark v. Sec’y Pa. Dep’t of Corrs., 687 F. App’x 152 (3d Cir. 2017).

Clark then filed a petition for a writ of certiorari with the United States Supreme Court, which the

Court denied on December 11, 2017. See Docket, Clark v. Wetzel, No. 17-6339 (U.S.), available

at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-

6339.html.

After his habeas proceedings had concluded, Clark then returned to the Court of Common

Pleas of Philadelphia County by filing a pro se second PCRA petition on March 30, 2018. See

Clark, 2023 WL 2151613, at *1. In this second petition, Clark

invoke[ed] newly-discovered facts concerning alleged misconduct in an unrelated

case by Detective Santiago and Detective Frank Jastrzembski, who also assisted in

[Clark’s] murder investigation. Essentially, [Clark] pled that he discovered the

pertinent allegations of police corruption and prosecutorial misconduct in that

unrelated case on February 20, 2018, after reading an article published the

preceding day in the Philadelphia Daily News. The article reported on the potential

effects of the 2016 exoneration of Anthony Wright and his civil suit against

Philadelphia and the eleven police detectives that investigated him. Detective

Santiago was identified in the 2018 article and both detectives were named in Mr.

Wright’s 2016 civil complaint.

Id. Although the PCRA court dismissed this second petition without a hearing on September 12,

2019,2 Clark appealed from the decision to the Pennsylvania Superior Court, which, on September

2 Rule 907 of the Pennsylvania Rules of Criminal Procedure provides the process should a PCRA court intend to

dismiss a PCRA petition without a hearing.

11, 2020, entered an order that vacated the dismissal order, appointed counsel to represent Clark

on his second PCRA petition, and remanded the case to the PCRA court for further proceedings.

See id.; see also Docket, Commonwealth v. Clark, No. CP-51-CR-1241151-1993 (Phila. Cnty. Ct.

Com. Pl.), available at: https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-

51-CR-1241151-1993&dnh=OtoLMJB7aBsvlexUTzpQyw%3D%3D (“CCP Docket”).

Clark’s newly appointed counsel filed an amended second PCRA petition on Clark’s behalf

on February 1, 2021. See Clark, 2023 WL 2151613, at *1. The amended petition

raised a substantive claim asserting that he is entitled to a new trial based upon

newly-discovered evidence that Detectives Jastrzembski and Santiago corrupted

Mr. Wright’s criminal investigation. Re-asserting the merits of his prior

unsuccessful claim relating to the alleged coercion of Sherry Taggart, as well as

new claims of coercion relating to two other Commonwealth witnesses, [Clark]

argued that [t]he prior PCRA court and appellate courts relied on the other witness

statements but did not have any of the newly-discover[ed] evidence regarding the

corrupt detectives when it previously rejected his claims.

The documents attached to the amended petition included Mr. Wright’s

2016 civil complaint, which was laden with various allegations of police corruption

in cases unrelated to [Clark’s] murder conviction, including averments that

Detective Santiago invoked his Fifth Amendment right against self-incrimination

while testifying in the criminal prosecution of Percy St. George and that Detectives

Jastrzembski and Santiago concealed exculpating evidence in a case against Jimmy

Dennis. While none of the new facts related directly to [Clark’s] murder conviction,

the amended petition also asserted an unspecified Brady3 claim, ostensibly based

upon the Commonwealth’s supposed failure to disclose to him the detectives’

alleged corruption in the various unrelated cases.

Id. at *1–2 (second alteration and footnote in original) (internal citations and quotation marks

omitted). Clark also claimed that his second PCRA petition was timely because it was based on

newly-discovered evidence. See id. at *2.

The PCRA court ultimately determined that Clark’s second PCRA petition was untimely

and meritless, and it entered an order dismissing the petition without a hearing on October 14,

3 Brady v. Maryland, 373 U.S. 83 (1963).

2021. See id.; CCP Docket. Although Clark appealed from this decision, the Superior Court

affirmed the dismissal on timeliness grounds via an unpublished decision entered on February 22,

2023. See Clark, 2023 WL 2151613, at *3–4.

Several days after the Superior Court’s decision, the clerk of court docketed Clark’s first

motion for relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure. See Doc. No. 69. In

this motion, Clark asserted that the court should grant him a new trial because he discovered

evidence relating to the “corruption” of two detectives who were “central to the preparing and

prosecution of [his] case.” Pet’r’s Mot. for Fed. R. Civ. P. 60(b)(6) Relief at ECF p. 9, Doc. No.

69. Clark argued that the Commonwealth failed to turn over this evidence to the defense and, as

such, violated his due process rights as recognized under Brady v. Maryland, 373 U.S. 83 (1963)

and Giglio v. United States, 405 U.S. 150 (1972). See id. at ECF pp. 10–14.

In addition to the aforementioned claims, Clark acknowledged in his motion that he had an

appeal from the dismissal of his second PCRA petition still pending before the Pennsylvania

Superior Court. See id. Since Clark appeared to have an appeal currently awaiting decision by the

Superior Court, this court entered an order denying Clark’s Rule 60(b)(6) motion without prejudice

because he was still exhausting his state-court remedies when he filed the motion.4 See Doc. No.

71.

Thereafter, Clark filed a motion for appointment of counsel and a motion for discovery,

both of which this court denied without prejudice because Clark did not have any pending Rule

60(b) motion before the court at that time. See Doc. Nos. 72–74. Clark then filed another document

on March 23, 2023, where he indicated that he had received the Superior Court’s decision, which

4 In the order, the court indicated that it was deferring analyzing whether Clark’s Rule 60(b) motion was actually an

improperly filed second or successive section 2254 habeas petition. See March 3, 2023 Order at 1 n.1.

was dated February 22, 2023, and expressed his belief that the Superior Court’s decision was

contrary to clearly established federal law. See Doc. No. 75.

Clark next submitted a “Motion in Request of the Court to Rescind its 03/03/23 Order,”

which the clerk of court docketed on March 30, 2023. See Doc. No. 76. In this motion, Clark

appeared to request that this court vacate the March 3, 2023 order denying without prejudice his

Rule 60(b)(6) motion for the failure to first exhaust his available state-court remedies because he

lacked the financial means to reproduce his voluminous motion with attached exhibits.5 See Mot.

in Request of the Ct. to Rescind its 03/03/23 Order at 1.

A few days after the docketing of Clark’s motion to rescind, the clerk of court docketed

Clark’s “Letter in Application.” See Doc. No. 77. In this submission, Clark requested that this

court dismiss his motion to rescind the March 3, 2023 Order because he understood his need to

exhaust state remedies. See Ltr. in Appl. at 1. Clark also requested that the court stay and abey this

case because he had filed a petition for allowance of appeal with the Pennsylvania Supreme Court.

See id.

After reviewing Clark’s motion and letter, and after reexamining Clark’s Rule 60(b)(6)

motion, it became apparent that Clark’s Rule 60(b)(6) motion was a second or successive section

2254 habeas petition for which he did not first receive authorization from the Third Circuit before

filing it here. As such, this court lacked jurisdiction to enter the March 3, 2023 Order, which denied

Clark’s Rule 60(b) motion without prejudice. Therefore, the court entered an order on May 23,

2023, which, inter alia, vacated the March 3, 2023 Order, construed Clark’s Rule 60(b)(6) motion

as an unauthorized second or successive section 2254 petition, and transferred the petition to the

Third Circuit for consideration. See May 23, 2023 Order at 1–6, Doc. No. 79.

5 Clark’s Rule 60(b) motion, with exhibits, was 279 pages in length.

The petition was docketed with the Third Circuit at No. 23-1949, and on July 17, 2023, the

Third Circuit denied Clark’s application to file a second or successive habeas corpus petition

because he failed to “show[] that the newly-discovered evidence that he proffers is sufficient to

establish by clear and convincing evidence that no reasonable factfinder would have found him

guilty.”6 July 17, 2023 Order at 1, In re: Ronald Clark, No. 23-1949 (3d Cir.), Doc. No. 9 (citing

28 U.S.C. § 2244(b)(2)(B)).

The clerk of court docketed Clark’s instant Rule 60(b)(6) motion on August 2, 2023. See

Doc. No. 81. On August 23, 2023, the clerk of court docketed a motion from Clark in which he

sought an order (1) directing the respondents to file an answer to his motion and (2) setting a

schedule so he could obtain discovery from the respondents. See Doc. No. 82. Then, on September

14, 2023, the clerk of court docketed a letter from Clark in which he appears to inform Assistant

District Attorney Katherine Ernst of the Office of the Philadelphia District Attorney of her

obligations under Brady and requests that she provide him any information relating to Detectives

Santiago and Jastrzembski. See Doc. No. 83.

II. DISCUSSION

A. Clark’s Claims in the Rule 60(b)(6) Motion

In Clark’s Rule 60(b)(6) motion, he generally claims that he is entitled to relief from this

court’s November 18, 2015 Order denying his habeas petition because he has identified Brady

violations, there has been a material change of decisional law, and he can demonstrate his actual

6 In Clark’s instant Rule 60(b) motion, he claims to have moved to withdraw his application with the Third Circuit by

submitting a motion on July 13, 2023. See Doc. No. 81 at ECF pp. 1, 3. Although it is unclear whether Clark believes

that he succeeded in withdrawing his application, this court notes that the Third Circuit appears to have received

Clark’s motion on July 17, 2023, and entered it on the docket on July 18, 2023. See In re: Ronald Clark, No. 23-1949

(3d Cir.), Doc. No. 10. On August 7, 2023, the Third Circuit entered an order indicating that it would take no action

on the request to withdraw because it had already denied his application to file a second or successive habeas petition

before Clark filed his motion to withdraw. See Aug. 7, 2023 Order at 1, In re: Ronald Clark, No. 23-1949 (3d Cir.),

Doc. No. 11.

innocence. See Mot. for Fed. R. Civ. P. Rule 60(b)(6) Relief (“Mot.”) at ECF p. 6, Doc. No. 81.

With regard to the purported Brady violations, Clark asserts that

[t]he Commonwealth suppressed information evidencing criminality and deliberate

deceptive practices being involved in investigations conducted by Philadelphia

Homicide Detectives Frank Jastrzembski and Manual Santiago. The former

detectives were lead detectives in [Clark’s] case, and were facing charges of

perjury, suborning perjury and obstruction of justice while investigating

petitioner’s case, when former Detective Santiago testified at [Clark’s] mistrial, and

during his retrial. The record submitted is clear in establishing that[] the former

detectives are directly involved in collection of all the evidence in [Clark’s] case

that: (a) resulted in his wrongful conviction and having been initially sentenced to

death; and (b) his claims and evidence of innocence were based upon at the above-

captioned habeas proceeding.

Id. at ECF p. 7. Clark goes on to allege that the respondents also “suppressed evidence of probative

value to development of the factual basis of the claims and evidence” he raised as part of his habeas

petition. See id. at ECF p. 8.

As for the evidence Clark believes was unlawfully suppressed, the court notes that Clark

has attached numerous exhibits to his motion, with those exhibits covering 584 pages. See Doc.

Nos. 81-1, 81-2. Out of those 584 pages, it appears that Clark is asserting that the government

violated Brady only by not disclosing allegations of misconduct against Detective Santiago made

by a defendant in a separate criminal case (albeit one that Clark alleges was proceeding at the same

time as his case moved towards its retrial), Commonwealth of Pennsylvania v. St. George, No. CP-

51-CR-1012571-1993. See Mot. at ECF p. 16, Ex. B. The defendant had alleged that Detective

Santiago threatened to incarcerate a witness unless the witness signed a fabricated statement. See

Mot. at ECF p. 16, Ex. B. In addition, in response to those allegations, Detective Santiago (through

his attorney) informed the trial judge in St. George that if he was called to testify, he would invoke

his right to remain silent under the Fifth Amendment. See id.

Regarding the material change in decisional law Clark is referencing, he appears to be

referring to the Third Circuit’s decision in Dennis v. Secretary, Pennsylvania Department of

Corrections, 834 F.3d 263 (3d Cir. 2016). See Mot. at ECF p. 7 (“The claims raised herein are

premised on extraordinary circumstances and equitable factors that, when paired with the material

change in decisional law effectuated by Dennis undermines confidence in the habeas judgment

rendered at the above-captioned docket.”); id. at ECF p. 17 (indicating that this court must

determine “whether [Clark] is entitled to Rule 60(b)(6) relief when pairing the evidence in it’s [sic]

entirety with the material change in law effectuated by Dennis”). However, Clark also refers to the

Third Circuit’s decisions in Bracey v. Superintendent Rockview SCI, 986 F.3d 274 (3d Cir. 2021)

and Satterfield v. District Attorney Philadelphia, 872 F.3d 152 (3d Cir. 2017) on several occasions

in his motion. See, e.g., id. at ECF p. 7. Overall, while it strongly appears that Clark is focusing on

Dennis, it is nonetheless unclear whether he is also arguing that Bracey or Satterfield also qualify

as a change in decisional law that would support this court granting him relief.

Concerning his actual innocence claim, it appears that Clark relies on most of the 584 pages

of exhibits he attached to his motion to support this claim. Those exhibits include:

• A January 14, 2019 report authored by a criminologist, R. Paul McCauley,

Ph.D., in the matter of Shaun Thomas v. City of Philadelphia, et al., Civil Action

No. 17-4196 (E.D. Pa.). See id., Ex. A, Doc. No. 81-1. In Dr. McCauley’s

report, he discusses, inter alia (1) widespread and long-standing practices in the

City of Philadelphia Police Department (“PPD”) that deviated from generally

accepted police practices, (2) eight other homicide cases (none of which were

Clark’s case) where investigatory misconduct, including misconduct associated

with Detectives Santiago and Jastrzembski, was identified and documented, (3)

the PPD’s failure to investigate misconduct in Mr. Thomas’s case, (4) the PPD’s

widespread interrogation tactics of using improper coercion, threats, and

inducements of suspects and witnesses, and (5) the PPD’s long-standing

failures to reasonably direct, supervise, investigate, discipline, and correct

police misconduct. See id. at ECF pp. 2–32.

• A letter dated October 3, 1994, from Jeffrey M. Kolansky, Esq. to the

Honorable Carolyn Engel Temin of the Philadelphia County Court of Common

Pleas, now retired, in the matter of Commonwealth v. St. George, No. CP-51-

CR-1012571-1993. See id., Ex. B, Doc. No. 81-1. In this letter, written on

behalf of Detective Santiago, Attorney Kolansky responds to the defendant’s

motion to bar his retrial based on allegations that at least one detective perjured

themselves and other officers coerced witnesses to give false statements

implicating the defendant in a murder.7 See id. at ECF p. 34. Attorney Kolansky

informs Judge Temin that even though the defendant’s allegations are false,

Detective Santiago would assert his Fifth Amendment right to remain silent

should he be called to testify in the case, unless he was granted immunity. See

id. at ECF p. 36.

• An August 2021 Court of Common Pleas of Philadelphia County grand jury

presentment after it had

investigate[d] the facts and circumstances surrounding the potential

criminal activities of former Philadelphia Homicide Detectives

Manuel Santiago and Martin Devlin as it relates to the 2016 jury

trial of Anthony Wright and the former detectives’ trial testimony as

well as their sworn testimony taken during subsequent 2017

depositions in the civil lawsuit filed after Wright was acquitted of

all charges.

Id., Ex. C at ECF p. 68, Doc. No. 81-1. Based on its investigation, the grand

jury recommended that criminal charges be filed against Detectives Santiago,

Devlin, and Jastrzembski. See id. at ECF pp. 104–05.

• The Commonwealth’s answer to an amended petition for post-conviction relief

filed in the matter of Commonwealth v. Swainson, No. CP-51-CR-431311-1988

filed in February 2020. See id., Ex. D, Doc. No. 81-1. In the answer, the

Commonwealth acknowledged that the petitioner was entitled to relief based on

newly discovered evidence and due process violations under the United States

and Pennsylvania Constitutions. See id. at ECF p. 109. The answer, and the

stipulation of facts attached to it, contain assertions that Detective Santiago

committed acts of misconduct in the case. See, e.g., id. at ECF pp. 112, 128–30,

144–47, 149, 156, 158.

• The Commonwealth’s motion for nolle prosequi under Pennsylvania Rule of

Criminal Procedure 585(a) filed in Commonwealth v. Swainson and a June 18,

2020 Order granting the motion. See id., Ex. E, Doc. No. 81-1.

• The complaint filed in Veasy v. City of Philadelphia, et al., Civil Action No.

20-5107 (E.D. Pa.). See id., Ex. G, Doc. No. 81-2. Detectives Santiago and

Jastrzembski are named as defendants and accused of misconduct in the events

7 Clark also attached as part of exhibit B the defendant’s motion to bar retrial and the exhibits attached thereto. See

Mot., Ex. B at ECF pp. 38–66.

leading to the plaintiff’s first-degree murder conviction in 1993. See id. at ECF

pp. 2–3.

• Various documents from Clark’s criminal case, including: (1) October 1993

PPD Investigation Interview Records of interviews with Kevin Pettiway, Nigel

Bell, Edward Pedro, Craig Andre Cobb, Carey Bivines, Quan Ming Jin,

Kyminie Al-Kaabah, Tressa Thompson, Sharon Ellison, Nicole Shaffer, Lt.

Samuel Lynch, Sherry Taggart, and Tiny Wilson, see id. at ECF pp. 40–83, 85–

108, 257–58;8 (2) a property receipt dated October 7, 1993 for a video tape

recorded from the Stop and Go Restaurant, see id. at ECF p. 84; (3) Detective

Santiago’s affidavit of probable cause and warrant to arrest Clark, see id. at

ECF p. 109–12; (4) a portion of a transcript from November 22, 1994, where it

appears that the prosecutor informs the trial judge that all discovery has been

provided to the defense, see id. at ECF pp. 113–14

• A portion of a transcript from what appears to be a deposition of Detective

Santiago on May 4, 2017 in the Wright civil matter. See id. at ECF pp. 117–18.

• An August 13, 2021 article from the Philadelphia Inquirer titled: “Former

Philadelphia homicide detectives Martin Devlin, Manuel Santiago, and Frank

Jastrzembski face perjury charges.” Id. at ECF pp. 119–22.

• Portions of the complaint filed in Wilson v. City of Philadelphia, et al., Civil

Action No. 21-2057 (E.D. Pa.). See id. at ECF pp. 123–30.

• A November 17, 1999 declaration of Norma Keith. See id. at ECF pp. 131–33.

• An August 19, 1999 declaration of Sherry Taggart. See id. at ECF pp. 134–36.

• Documents appearing to relate to criminal cases against Sherry Taggart. See id.

at ECF pp. 137–48.

• Correspondence relating to a Stop and Go Restaurant videotape and a portion

of a January 12, 2000 transcript in Clark’s criminal case. See id. at ECF pp.

149–60.

• Portions of an August 30, 1994 transcript in Commonwealth v. St. George. See

id. at ECF pp. 163–75.

• Portions of what appear to be a suppression hearing transcript in Clark’s

criminal case. See id. at ECF pp. 177–226.

8 Some of these names may be incorrectly spelled due to the difficulty the court encountered when attempting to read

the handwritten reports.

• Portions of what Clark states is a transcript of his July 1994 mistrial. See id. at

ECF pp. 228–54.

Using these exhibits, Clark appears to articulate his actual innocence claim as follows:9

Detectives Santiago and Jastrzembski were the investigating detectives in his case, as well as other

homicide cases, including the St. George matter. See Mot. at ECF pp. 16, 20. The PPD generally,

and Detectives Santiago and Jastrzembski specifically, have been accused of numerous acts of

misconduct while investigating other homicides during the same period that they were

investigating Clark’s case. See id. at ECF pp. 17–19, 24–25, 28–29, 37–40. These acts of

misconduct are illustrated by, inter alia, (1) Dr. McCauley’s January 2019 report in the Thomas

matter, (2) the accusation against Detective Santiago in the latter part of 1994 in the St. George

matter, for which Detective Santiago indicated he would invoke his Fifth Amendment rights if

called to testify, (3) the August 2021 Court of Common Pleas of Philadelphia County grand jury

presentment, (4) the Commonwealth’s answer to the PCRA petition filed in the Swainson matter,

(5) the August 23, 2021 Philadelphia Inquirer article describing perjury and other related charges

filed against Detectives Santiago and Jastrzembski, (6) the complaint filed in the Veasy matter, (7)

the portion of the complaint filed in the Wilson matter, (8) the portion of Detective Santiago’s

deposition testimony in the Wright matter, and (9) Sherry Taggart’s declaration and documents

from her criminal record. See id. at ECF pp. 17–19, 24–25, 28–29, 37–40, and Exs. A–E, G.

Although it appears that out of all these exhibits, only Ms. Taggart’s declaration directly supports

that Detectives Santiago and Jastrzembski committed misconduct in Clark’s case, the other

evidence cited would have been admissible as habit evidence under Federal Rule of Evidence 406

and for impeachment purposes. See id. at ECF pp. 17, 26–27.

9 None of the statements in this, and the next two, paragraphs should be interpreted as the court’s adoption of Clark’s

assertions of fact or claims. It is merely the court’s portrayal of what the court understands to be Clark’s theory

supporting his actual innocence claim.

The aforementioned evidence, in conjunction with Detectives Santiago and Jastrzembski’s

involvement in Clark’s case – where either or both of them procured statements from trial

witnesses, composed a photo array, obtained Clark’s arrest warrant, and provided pretrial

testimony – supports the claim of actual innocence in several respects. See id. at ECF p. 20. First,

although Ms. Taggart testified at Clark’s trial that she did not have a deal with the Commonwealth

and was not under the influence of narcotics at the time of the homicide, this testimony is

contradicted by her sworn declaration, a declaration from Norma Keith, who was Ms. Taggart’s

primary drug addiction counselor starting in December 1994, and portions of Ms. Taggart’s

criminal record attached to the motion. See id. at ECF pp. 21–25. Second, Detective Santiago’s

arrest warrant falsely indicated that Ms. Taggart was an employee of the Stop and Go Restaurant

at the time of the homicide. See id. at ECF pp. 25, 27. Third, according to Ms. Taggart’s

declaration, Detective Santiago coached her when she identified Clark in a photo array. See id. at

ECF pp. 25–26. Finally, the Commonwealth and Detective Jastrzembski continually delayed

providing Clark with, and seemingly later altered, the video recording at the time of the murder

which had been obtained from the Stop and Go Restaurant. See id. at ECF pp. 30–35.

Two additional aspects of the criminal proceedings also support Clark’s actual innocence.

The first is the testimony of an eyewitness, Kevin Pettiway, whose testimony was contradicted by

other evidence admitted during the trial and actually supported Clark’s alibi defense that he was

home with his two roommates at the time of the homicide. See id. at ECF p. 29. The second is that

Clark’s trial counsel was ineffective for failing to call Nicole Shaffer, an “impartial witness,” as a

witness during the trial. See id. at ECF pp. 36–37. If Ms. Shaffer had testified in accordance with

her statements to police, she would have testified that she only saw Clark’s co-defendant, Kevin

Dwight, with the shotgun used to commit the murder. See id. Moreover, Ms. Shaffer had provided

the PPD with information that would have supported culpability and motive on the part of Mr.

Dwight, and not Clark. See id. at ECF p. 39.

B. Analysis

Clark brings the instant motion under Rule 60(b)(6) of the Federal Rules of Civil

Procedure, which provides that “[o]n motion and just terms, the court may relieve a party or its

legal representative from a final judgment, order, or proceeding for . . . (6) any other reason that

justifies relief.” Fed. R. Civ. P. 60(b)(6). Rule 60(b)(6) motions have a timing requirement insofar

as the movant must file it “within a reasonable time.” Fed. R. Civ. P. 60(c).

Because this is a federal habeas action, the court must evaluate whether Clark’s Rule

60(b)(6) motion is properly characterized as an unauthorized second or successive habeas

petition.10 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) mandates that before a

state prisoner may file a second or successive habeas petition in which they challenge a judgment

of sentence that they previously challenged in a federal habeas action, they must first obtain an

order from the appropriate court of appeals authorizing the district court to consider the

application. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted

by this section is filed in the district court, the applicant shall move in the appropriate court of

appeals for an order authorizing the district court to consider the application.”); see also Magwood

10 “Section 2244 . . . does not define what constitutes a ‘second or successive’ petition.” Benchoff v. Colleran, 404

F.3d 812, 816 (3d Cir. 2005); see also Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997) (“While the AEDPA requires

[the procedure of first obtaining authorization from a court of appeals before filing a second or successive application],

it does not define what is meant by ‘second’ or ‘successive.’” (alteration to original)). Nonetheless, “‘a prisoner’s

application is not second or successive simply because it follows an earlier federal petition.’” Benchoff, 404 F.3d at

817 (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)); see also Stewart v. Martinez-Villareal, 523 U.S. 637, 643

(1998) (“This may have been the second time that respondent had asked the federal courts to provide relief on his

Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily

subject to § 2244(b).”). If, however, “a prisoner has filed a previous habeas petition that was adjudicated on the merits,

he may not file a second or successive petition in the district courts without first seeking leave from the Court of

Appeals.” In re Stitt, 598 F. App’x 810, 811 n.1 (3d Cir. 2015). In addition, the second or successive “doctrine . . .

bar[s] claims that could have been raised in an earlier habeas corpus petition” but were not raised by the petitioner.

Benchoff, 404 F.3d at 817 (emphasis added) (citations omitted).

v. Patterson, 561 U.S. 320, 330–31 (2010) (“If an application [for a writ of habeas corpus] is

‘second or successive,’ the petitioner must obtain leave from the court of appeals before filing it

with the district court.”); United States v. Winkelman, 746 F.3d 134, 135 (3d Cir. 2014)

(interpreting motion to recall mandate and reinstate direct appeals as successive habeas motion);

In re Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per curiam) (addressing requests for

authorization to file successive habeas petition to raise claims under Miller v. Alabama, 567 U.S.

460 (2012)). Importantly, AEDPA’s allocation of “gatekeeping” responsibilities to the courts of

appeals have divested district courts of jurisdiction over habeas applications that are second or

successive. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (“The long and short of it is that [the

petitioner] neither sought nor received authorization from the Court of Appeals before filing his .

. . ‘second or successive’ petition challenging his custody, and so the District Court was without

jurisdiction to entertain it.”). A habeas petitioner cannot avoid AEDPA’s second or successive

gatekeeping mechanism by raising habeas claims in a filing that they designate as a Rule 60(b)

motion. See Sutton v. Commonwealth, Civ. A. No. 17-109 Erie, 2018 WL 4599825, at *2 (W.D.

Pa. Sept. 25, 2018) (explaining that “the Petitioner could not avoid AEDPA’s second or successive

gatekeeping mechanism[,] by simply designating a filing as a Rule 60(b) motion” (internal

quotation marks and citations omitted)); Brian R. Means, FEDERAL HABEAS MANUAL §

11:42, Westlaw (database updated May 2019) (explaining that “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 analyzing whether a Rule 60(b)(6) motion is actually a second or successive habeas

petition, the court focuses on the framework established in Gonzalez v. Crosby, 545 U.S. 524

(2005). In Gonzalez, the United States Supreme Court addressed the circumstances in which the

use of Rule 60(b) is “inconsistent with” AEDPA’s second or successive petition requirements and,

consequently, unavailable to a state prisoner seeking habeas relief.11 See 545 U.S. at 526

(addressing “whether, in a [section 2254] habeas case, such motions are subject to the additional

restrictions that apply to ‘second or successive’ habeas corpus petitions under [AEDPA] . . . .”).

The Court explained that courts must construe a Rule 60(b) motion as a “second or successive

habeas corpus application” when it advances “one or more ‘claims.’” Id. at 531–32 (quoting 28

U.S.C. § 2244(b)(1), (2)). The Court observed that “[i]n most cases, determining whether a Rule

60(b) motion advances one or more ‘claims’ will be relatively simple. A motion that seeks to add

a new ground for relief . . . will of course qualify.” Id. at 532. In addition, the Court instructed that

a petitioner is advancing a habeas claim in a Rule 60(b) motion if they “attack[] 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 seeking to present newly discovered evidence in support of a claim that the court

previously denied represents a habeas claim. See 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, such as a “failure to exhaust, procedural default, or statute-

of-limitations bar”), 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 & nn.4, 5.

Here, although Clark claims to have “cured the defects in [his first] Rule 60(b)(6) Motion,”

Mot. at ECF p. 1, presumably a reference to his belief that his new motion no longer constituted a

11 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; alteration in original) (quoting now-Rule 12 of the Rules Governing Section 2254

Cases).

second or successive habeas petition, he has not changed the tenor of this motion because he has

once again attempted to seek habeas relief through a Rule 60(b)(6) motion. Clark also appears to

misunderstand the differences between a true Rule 60(b)(6) motion and an unauthorized second or

successive habeas petition.

In this regard, Clark ignores the fact that this court denied his habeas petition, in its entirety,

on the merits. See R. & R. at 105 (“We considered the merits of each of the claims raised by Clark

in this petition.”). Among those claims that this court rejected, albeit in the context of addressing

whether trial counsel was ineffective, were several of the same claims Clark is attempting to

relitigate here as part of his purported showing of actual innocence, such as: (1) discrepancies in

Mr. Pettiway’s testimony, see id. at 16–18; (2) the failure to call Ms. Shaffer as a witness at trial,

see id. at 19–21; (3) issues with Ms. Taggart’s testimony and credibility, including whether she

was under the influence at the time of the murder and whether she received a deal in exchange for

testifying falsely at Clark’s trial, see id. at 21–46; (4) the Commonwealth’s conduct regarding the

video tape from the Stop and Go Restaurant, see id. at 62–68; and (5) alleged deficiencies with the

photo array, see id. at 78–84. Any challenges to this court’s merits determinations of those claims

are challenges seeking habeas relief and, as such, are not proper grounds for seeking relief under

Rule 60(b)(6). See Gonzalez, 545 U.S. at 532 (explaining that petitioner advances habeas claims

in Rule 60(b) motion if they “attack[] 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”). Therefore, Clark’s attempt to relitigate prior habeas claims supports this

court construing his Rule 60(b)(6) motion as an unauthorized second or successive habeas petition.

Clark’s Brady claim also supports this court construing his Rule 60(b)(6) motion as an

unauthorized second or successive habeas petition. While Clark argues that his Brady claim affects

both the integrity of his underlying criminal proceedings and his habeas proceedings, see, e.g.,

Mot. at ECF p. 8 (“Petitioner further contends and demonstrates herein that, at all times during his

habeas proceeding the Commonwealth suppressed evidence of probative value to development of

the factual basis of the claims and evidence of innocence raised by petitioner.”), he is mistaken.12

In his habeas petition, Clark did not assert a Brady claim based on the Commonwealth’s alleged

failure to turn over the information about Detective Santiago in the St. George matter, only to have

this court decline to address it because of a procedural deficiency. If the court had done so, Clark

could properly seek Rule 60(b)(6) relief by attempting to show that a change in decisional law

warrants the court considering the Brady claim on the merits. But that is just not the case here.

Instead, Clark is improperly raising his identical Brady claim for a second time, even though this

court determined that his first attempt via a Rule 60(b)(6) motion was actually an unauthorized

second or successive habeas petition, and treated it as such by transferring it to the Third Circuit.

See May 23, 2023 Order at 2 & n.3.

The final aspect of the instant motion supporting a conclusion that Clark’s Rule 60(b)(6)

motion is actually a second or successive habeas petition is his assertion that he can demonstrate

his actual innocence. The court recognizes that a “change in [decisional] law, paired with a

petitioner’s adequate showing of actual innocence, would . . . be sufficient to support Rule 60(b)(6)

relief.” Satterfield v. District Attorney Philadelphia, 872 F.3d 152, 163 (3d Cir. 2017); see also

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (“[A]ctual innocence, if proved, serves as a

12 In general, if there was an actual Brady violation, it would theoretically affect all post-trial proceedings that occurred

until that point because a habeas petitioner’s due process rights were violated, and the petitioner’s conviction would

need to be vacated. Nevertheless, it does not affect the integrity of these habeas proceedings where no such Brady

claim was previously raised.

gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or .

. . expiration of the [AEDPA] statute of limitations.”). In certain limited circumstances then, Clark

could invoke actual innocence to excuse a procedural defect with his original habeas petition. Here,

there is no procedural defect for Clark to attempt to excuse because the court reviewed and denied

all his habeas claims on the merits. Should Clark believe he can make the requisite showing of

actual innocence, he must do so by seeking authorization from the Third Circuit to file a second

or successive habeas petition.13

For the reasons set forth above, the court concludes that Clark’s Rule 60(b)(6) motion is a

second or successive habeas petition for which he failed to first receive authorization from the

Third Circuit before filing it here. Therefore, this court lacks subject-matter jurisdiction to consider

it. See 28 U.S.C. § 2244(b)(3)(A); Robinson v. Johnson, 313 F.3d 128, 139–40 (3d Cir. 2002)

(explaining that section 2244 “limits the authority of the district court to consider second or

successive petitions without an order of the court of appeals”).

If “a second or successive habeas petition is erroneously filed in a district court without the

permission of a court of appeals, the district court’s only option[s are] to dismiss the petition or

transfer it to the court of appeals pursuant to 28 U.S.C. § 1631.” Robinson, 313 F.3d at 139; see

28 U.S.C. § 1631 (“Whenever a civil action is filed in a court . . . and that court finds that there is

a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to

any other such court in which the action . . . could have been brought at the time it was filed.”).

When determining whether to transfer a habeas action to the court of appeals, the district court

should “consider whether the petitioner alleges sufficient facts to satisfy the gatekeeping

13 “To qualify for this exception, the petitioner must present new, reliable evidence showing it is more likely than not

that no reasonable juror would have voted to convict him.” Reeves v. Fayette SCI, 897 F.3d 154, 157 (3d Cir. 2018)

(citing Schlup v. Delo, 513 U.S. 298, 324 (1995)).

requirement of the relevant habeas provision.” Lee v. Lane, No. 1:15-CV-2195, 2017 WL 3167410,

at *3 (M.D. Pa. June 23, 2017) (citations omitted); see Hatches v. Schultz, 381 F. App’x 134, 137

(3d Cir. 2010) (per curiam) (“In deciding that it would not be in the interest of justice to transfer

the petition to the Fourth Circuit, the District Court properly considered whether Hatches had

alleged facts sufficient to bring his petition within the gatekeeping requirement of § 2255

permitting ‘second or successive’ petitions based upon newly discovered evidence or a new rule

of constitutional law.” (citation omitted)).

The relevant habeas petition in this case is 28 U.S.C. § 2244(b)(2), which provides as

follows:

(A) the applicant shows that the claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously

through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as

a whole, 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. § 2244(b)(2). Here, as Clark has not identified his Rule 60(b)(6) motion as a second or

successive petition, he understandably does not attempt to explain how it could qualify as a proper

second or successive petition under 28 U.S.C. § 2244(b)(2). Nevertheless, the court notes that none

of his claims involve a “new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.” Id. § 2244(b)(2)(A). He has

alleged, however, that “the factual predicate for the claim[s] could not have been discovered

previously through the exercise of due diligence.” Id. § 2244(b)(2)(B)(i). He also asserts that he

can demonstrate his actual innocence. Id. § 2244(b)(2)(B)(ii).

While this court expresses no opinion about the merits of Clark’s claims, see Hatches, 381

F. App’x at 137 (“[T]his inquiry as to the factual predicate of Hatches’ claims did not require—

and the District Court did not express—any opinion on the merits of the claims.”), the court finds

that the interests of justice do not warrant transferring this matter to the Third Circuit despite

Clark’s submission potentially qualifying under section 2244(b)(2)(B). The Third Circuit has

already denied his request to file a second or successive petition based on the same claims he is

asserting here. Thus, there is no reason for the court to again transfer Clark’s motion to the Third

Circuit. Accordingly, the court dismisses this matter without prejudice for lack of subject-matter

jurisdiction.

III. CONCLUSION

For the reasons discussed above, the court construes Clark’s Rule 60(b)(6) motion as a

second or successive habeas petition.14 Since Clark did not receive authorization from the Third

14 Even if the court would have concluded that Clark’s Rule 60(b)(6) was a “true” Rule 60(b) motion, he failed to state

grounds for relief. Under Rule 60(b)(6), this court “may only grant relief under [this] Rule . . . in ‘extraordinary

circumstances where, without such relief, an extreme and unexpected hardship would occur.’” Satterfield, 872 F.3d

at 158 (quoting Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014)). “This is a difficult standard to meet, and ‘[s]uch

circumstances will rarely occur in the habeas context.’” Id. (alteration in original) (quoting Gonzalez, 545 U.S. at 535).

When faced with Rule 60(b)(6) motions in which the movant is seeking relief based on an alleged intervening

change in the law, the district court

must address three issues: First, [the court] ask[s] whether the asserted change is material to the

basis on which the district court initially denied habeas relief. See Norris v. Brooks, 794 F.3d 401,

404–05 (3d Cir. 2015). If it is, [the court] then evaluate[s] whether the district court analyzed the

petitioner’s Rule 60(b) motion in accordance with a multifactor analysis we outlined in Cox, which

includes, among other things, a consideration of the effect of the change in decisional law and an

assessment of “the merits of [the] petitioner’s underlying . . . claim.” 757 F.3d at 124. Finally, we

determine the proper disposition on appeal: If the District Court undertook the requisite multifactor

analysis, we review the merits of its ruling for abuse of discretion, id. at 118, but if it did not engage

in that analysis or “we cannot determine from what it wrote whether the Court considered [the

relevant] factors,” id. at 120, then the District Court per se abused its discretion and we ordinarily

remand, because “[t]he grant or denial of a Rule 60(b)(6) motion is an equitable matter left, in the

first instance, to the discretion of a district court,” id. at 124.

Bracey v. Superintendent Rockview SCI, 986 F.3d 274, 284 (3d Cir. 2021).

Here, Clark’s motion fails at the first level of the aforementioned procedure because of his mistaken reliance

on Dennis as a material change in decisional law that would support him seeking relief under Rule 60(b)(6). In Dennis,

the Third Circuit “rejected” the Commonwealth’s argument “that a defendant’s failure to seek out exculpatory

materials in the public domain barred him from bringing a Brady claim.” Id. at 280 (citing Dennis, 834 F.3d at 289).

Circuit to file it here, this court lacks subject-matter jurisdiction to consider it. Accordingly, the

court will dismiss it for lack of subject-matter jurisdiction. The court also declines to issue a

certificate of appealability.15

The court will enter a separate order.16

BY THE COURT:

/s/ Edward G. Smith

EDWARD G. SMITH, J.

Instead, the Third Circuit concluded that (1) “a defendant has no burden to ‘scavenge for hints of undisclosed Brady

material’ even if the material part could be found in public records.’” and (2) “the prosecution’s ‘duty to disclose

under Brady is absolute—it does not depend on defense counsel’s actions’—and the defense is ‘entitled to presume

that prosecutors have “discharged their official duties.”’” Id. (quoting Dennis, 834 F.3d at 290).

Here, as already stated, Clark did not raise a Brady claim in his habeas petition similar to the one he is raising

in the instant motion only to have the court deny the Brady claim because of a procedural defect. Thus, Clark’s case

is dissimilar to the habeas petitioner in Bracey, who had filed a habeas petition raising a Brady claim approximately

16 years after his conviction for murder, only to have the district court dismiss the petition on statute of limitations

grounds (and have a motion for a certificate of appealability denied by the Third Circuit “in view of the then-existing

case law”), after finding that the petitioner failed to exercise the due diligence required under 28 U.S.C. §

2244(d)(1)(D). See id.; see also Jones v. Vaughn, No. 99-cv-4718, 2022 WL 131257, at *3 (E.D. Pa. Jan. 14, 2022)

(“Bracey specifically involved the timeliness of claims brought under Brady[.]”). In those circumstances, Dennis was

“material to the basis on which the district court initially denied habeas relief,” id. at 284, and, as such, supported the

petitioner seeking reconsideration of the dismissal of his Brady claim on limitations grounds via Rule 60(b)(6). See

Bracey, 986 F.3d at 285 (“Dennis . . . caused a material change in the relevant law, making Bracey’s Rule 60(b) motion

worthy of consideration.”).

15 A court should only issue a certificate of appealability (“COA”) if “the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional

claims on the merits . . . [t]he petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). If,

however, the district court

denies a habeas petition on procedural grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.

Id. Here, Clark has neither made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),

nor demonstrated that reasonable jurists “would find it debatable whether [this court] was correct” in concluding that

his Rule 60(b)(6) is an authorized second or successive habeas petition. Id.

16 Despite the ultimate outcome here, Clark’s exhibits referencing Detectives Santiago and Jastrzembski’s alleged

misconduct in other homicide cases during the same period that they were investigating the murder of Mr. Sunn Life

are certainly troubling, to say the least. According to the Philadelphia Inquirer article attached to Clark’s motion, the

work of Philadelphia District Attorney’s Conviction Integrity Unit has led to overturning at least four cases involving

these detectives and Detective Martin Devlin, who was also indicted. See Mot., Ex. G at ECF p. 119.