PINSON v. COLEMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PIERRE PINSON, )

) Civil Action No. 14 – 416

Petitioner, )

)

v. ) District Judge Joy Flowers Conti

) Magistrate Judge Lisa Pupo Lenihan

BRIAN COLEMAN and THE )

ATTORNEY GENERAL OF THE )

STATE OF PENNSYLVANIA, )

)

)

Respondents. )

OPINION

I. Introduction

Presently before the court is a motion for relief from judgment filed by petitioner

Pierre Pinson (“Pinson” or “petitioner”) pursuant to Federal Rule of Civil Procedure

60(b). (ECF No. 40.) The motion was referred to a United States Magistrate Judge

pursuant to the Magistrate Judge’s Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D

of the Local Rules of Court.

On August 29, 2022, the magistrate judge issued a report and recommendation

(“R&R”) wherein she recommended that Pinson’s motion be denied and that a

certificate of appealability also be denied. (ECF No. 44.) On October 19, 2022, Pinson

filed a motion requesting proper development of the record (ECF No. 47). The court

construes the motion requesting proper development of record as objections to a

portion of the R&R.

On October 19, 2022, Pinson also filed a motion for court order to unseal records

and order the Commonwealth to turn over all internal affairs records with respect to

detective Dennis Logan. (ECF No. 48.) On November 10, 2022, Pinson filed an

“addendum” to his “original filing.” (ECF No. 49.) On November 29, 2022, Pinson filed a

motion to withdraw the addendum. (ECF No. 50.) On December 1, 2022, Pinson filed a

motion for subpoena duces tecum. (ECF No. 51.)

For the reasons set forth in this opinion, the R&R will be adopted in part; Pinson’s

objections will be overruled; Pinson’s Rule 60(b) motion will be denied for the reasons

set forth in the R&R, as modified and supplemented by this opinion; the motion for court

order to unseal records and order the Commonwealth to turn over all internal affairs

records with respect to detective Dennis Logan (ECF No. 48) and motion for subpoena

duces tecum (ECF No. 51) will be denied; and the motion to withdraw addendum (ECF

No. 49) will be granted.

II. Procedural History and Background

On October 21, 1999, Pinson was charged in the Commonwealth of

Pennsylvania with four counts of attempted homicide, four counts of aggravated assault,

one count of criminal conspiracy and one count of carrying a firearm without a license.

See Commonwealth v. Pinson, CP-02-CR-0013750-1999 (Allegheny Cty. Common

Pleas Ct.). The charges stemmed from an incident in which shots were fired into a

police station on August 27, 1999. A jury trial commenced on July 19, 2000. The jury

found Pinson guilty of four counts of aggravated assault, one count of criminal

conspiracy, and one count of carrying a firearm without a license. Pinson was acquitted

of the four counts of attempted homicide. The court sentenced Pinson to an aggregate

prison term of 35 to 90 years. Pinson took a direct appeal of his conviction, which was

not successful. Pinson filed three petitions pursuant to Pennsylvania’s Post Conviction

Relief Act (“PCRA”), 42 PA. CONS. STAT. § 9541. The third PCRA appeal ended on

February 26, 2014. The Superior Court of Pennsylvania summarized the evidence

produced at Pinson’s trial at CP-02-CR-0013750-1999 as follows:

The evidence presented at trial established that on August 27, 1999,

Pittsburgh Police Officers Stephen Mescan, Michael Boyd, Darlene

Gardner and Tracy Carson were at work in the Zone 6 Police Station on

Northumberland Street in the Squirrel Hill section of the City of Pittsburgh.

At approximately 3:00 a.m., numerous shots were fired at the police station.

Bullets entered through the primarily wood and glass building front. Officers

dove for cover and turned off lights so they would not be seen. Two officers

stated that they could hear the “whiz” of a bullet passing right by their heads.

One bullet struck Officer Steph[e]n Mescan in the foot. Witnesses could not

definitively say the actual number of shots fired at the station, but there were

(5) five holes in the front of the police station, and at least six shots fired into

vehicles parked directly in front of the station. Casings and slugs were found

in the street in front of the station, and there were bullet holes on the walls

inside. Ballistics tests showed that the weapons used in the shooting were

a 9 mm and a .45 caliber automatic.

Zhen Dong Ling, a delivery driver for the New York Times, was

driving on Northumberland Street approximately two (2) blocks from the

police station when he heard five to six “pops” like a firecracker. Then a

vehicle drove past him, coming from the direction of the police station at a

high rate of speed. The vehicle was a dark sports utility vehicle which looked

like a Jeep, possibly black or dark green. Mr. Ling could not see the

occupant or occupants in the vehicle.

A few hours later, Megan Siegal awoke to find that her Black Jeep

Cherokee had been stolen. Ms. Siegal, who lived five (5) blocks from the

Zone 6 police station, had last seen her vehicle parked outside at

approximately 11:00 p.m. on August 26, 1999. When she awoke to find the

Jeep gone, she called police and reported [it] stolen. She received a call

around 4:30 p.m. on August 27, 1999, from police informing her that her

vehicle had been recovered in a post office parking lot in the East Liberty

section of the City of Pittsburgh. Postal workers had called to report that a

black Jeep Grand Cherokee had been left in the lot all day with its engine

running. One postal worker had noticed the Jeep parked in the lot when he

arrived for work at 5:45 a.m. Ms. Siegal met a police officer in the post office

parking lot and confirmed that it was her vehicle. However, Mrs. Siegal

noticed that there was a plastic Snapple brand iced tea bottle that did not

belong to her, and there were bullet casings in the vehicle. Also, someone

had written on the headliner (felt covering of the roof inside the vehicle) in

the front seat area, writing which had not been there the night before when

she left her car in her parking space. The writing on the headliner on the

drivers side was “thank you.” The writing on the passenger side headliner

was “Fucc the Piggz”, spelled and written in a very distinctive manner.

Ballistics test later showed that the casings found inside Ms. Siegal’s Jeep

matched those found at the scene of the Zone 6 shooting.

During the investigation police received information that [Pinson] and

his codefendant had perpetrated the shooting at the Zone 6 police station.

Acting upon the information, police detectives visited Pinson’s co-

defendant, Ricky Boyer, approximately two (2) weeks after the incident.

Boyer agreed to be interviewed at the detective’s office and, after waiving

his rights, confessed to the shooting, as well as other crimes. Boyer detailed

his involvement, as well as that of [Pinson.] An arrest warrant was issued

for [Pinson] and he was taken into custody on September 19, 1999. He was

interviewed by detectives after he waived his rights and signed a pre-

interrogation warning form. [Pinson] then confessed to his involvement in

the shooting, as well as the other crimes he committed with Boyer.

* * *

Pinson confessed to being a passenger in the stolen jeep during the

shooting. Several witnesses testified to seeing a similar, dark colored jeep

near the scene of the crime. Pinson also admitted firing shots at the police

station from a .45 caliber weapon (the same caliber as the shell casings

found at the scene), and writing “FUCC THE PIGGZ” (the same language

used in his tattoo) on the headliner of the stolen jeep. In addition, various

drawings were recovered from Pinson’s cell in which he stylized the words

“FUC” and “THE PIGZ.” The confession, along with the eyewitnesses’

statements, and the physical evidence recovered from the scene,

constituted overwhelming evidence of Pinson’s guilt.

(ECF No. 9-6 at 2-4, 17-18.)

On October 27, 1999, Pinson was charged in the Allegheny County Court of

Common Pleas with three counts of robbery, two counts of criminal conspiracy and one

count of attempted robbery. The charges stemmed from Pinson’s attempted robbery

and actual robbery of a QwiCash store. See Commonwealth v. Pinson, CP-02-CR-

0014157-1999 (Allegheny Cty. Common Pleas Ct.). A jury trial commenced on July 26,

2000. The jury convicted Pinson of all counts. The court sentenced Pinson to an

aggregate prison term of 15 to 60 years, which he was ordered to serve consecutively

to the sentence imposed at CP-02-CR-0013750-1999, which is detailed above. Pinson

filed a direct appeal of his conviction and sentence and a PCRA petition. The PCRA

petition at this case number was the same as the third PCRA petition filed at CP-02-CR-

0013750-1999. His PCRA appeal ended on February 26, 2014. The Superior Court of

Pennsylvania summarized the evidence presented at Pinson’s trial at CP-02-CR-

0014157-1999 as follows:

Terry Williams was the manager of a QwiCash store. The store

provided money services such as check cashing and Western Union

Moneygrams. On August 30, 1999, Mr. Williams witnessed two men

wearing bandanas attempting to break into the QwiCash before normal

business hours. Mr. Williams fled to the back of the store and called 911.

The two men were unable to gain entry to the store at that time. The

following day, Pinson and his accomplice, Ricky Boyer, entered the store

during business hours. Boyer began firing a silver handgun at the security

windows inside the store which separated the customers from the

employees. Witnesses testified they saw Pinson brandishing a black

handgun during the robbery. It is unclear, however, whether Pinson

actually fired his weapon. One customer, Bridget Ways, was caught in the

melee. She dropped her money on the floor during the shooting, and

Pinson and Boyer absconded with that money.

Following an investigation, the police were able to secure an arrest

warrant for Pinson. The police served the warrant at the apartment of an

unnamed third party, who granted the police access to the apartment. The

leaseholder signed a “consent to search” form and permitted the police to

search her apartment. During the search, the police seized a black .45

caliber handgun from under a pillow in a bedroom. Subsequently, the

police obtained a warrant to search a car registered to a Ms. Florence

Charles. During the search, police found a box of .45 caliber shells along

with an identification card and a learner’s permit in the name of Pierre

Pinson. Fourteen shells were missing from the case. Detective Alexander

testified that no fingerprints could be obtained from the black handgun. The

Commonwealth’s expert testified that the weapon found during Pinson’s

arrest had not been fired during the robbery at the QwiCash.

Pinson filed a motion to suppress his statements to the police. At

the pre-trial suppression hearing, Detective Logan testified that he read the

pre-interrogation warning form to Pinson after his arrest, handed the form

to Pinson to read, re-read the form to Pinson and then asked Pinson if he

agreed to speak with him. Detective Logan testified that Pinson agreed to

speak with him and then signed the form. Detective Logan testified that, at

no time, did Pinson either ask to speak with a lawyer, or invoke his right to

remain silent and refuse to answer questions. Detective Logan also denied

having promised leniency or forcing him to make any statements. Detective

Logan testified the interrogation took approximately four hours.

At trial, Detective Logan testified that, during interrogation, Pinson

confessed to attempting to rob the QwiCash on August 30, 1999, and

robing it on August 31. Detective Logan testified that Pinson admitted he

and “another man” attempted to rob the store because they believed there

was $56,000.00 inside. In his confession, Pinson denied having a gun

during the incident. He did admit, however, that he and Boyer took the $90

Ms. Ways dropped on the floor during the incident. At trial, Pinson denied

any involvement in the incidents at the QwiCash.

At trial, Pinson’s co-defendant, Boyer, also denied having made any

admissions to Detective Logan. Boyer also testified that he had not been

involved in either the robbery or the attempted robbery of the QwiCash. He

stated he had not read or understood his signed confession. Boyer also

testified that he wrote a letter of apology to the victims only because the

police threatened him.

(ECF No. 9-33 at 14-17.)

On March 31, 2014, Pinson—without paying the filing fee or a motion to proceed

in forma pauperis—filed a petition for writ of habeas corpus in this court. (ECF No. 1.)

On April 1, 2014, the Clerk of Court marked the case closed. (ECF No. 2.) After Pinson

paid the filing fee, he refiled the petition for writ of habeas corpus (the “petition”) on May

12, 2014. (ECF No. 3.) The respondents moved to dismiss the petition on timeliness

grounds arguing that it was untimely by more than four years at CP-02-CR-0013750-

1999, and by more than eight years at CP-02-CR-0014157-1999. (ECF No. 9.) On

October 14, 2014, the magistrate judge issued a report and recommendation, and

recommended that the petition be dismissed as untimely filed. (ECF No. 13.) The

undersigned in a memorandum opinion and order overruled Pinson’s objections to the

report and recommendation (ECF No. 14), adopted the report and recommendation,

dismissed the petition as untimely, and declined to issue a certificate of appealability.

(ECF No. 15.)

Pinson appealed, and the Third Circuit Court of Appeals denied his request for a

certificate of appealability. (ECF No. 19.) Pinson filed a request for authorization to file a

second or successive petition for writ of habeas corpus, which the Third Circuit Court of

Appeals denied. See C.A. No. 18-2027 (3d Cir.).

On January 16, 2019, Pinson filed his first Rule 60(b) motion in this case. (ECF

No. 24.) The magistrate judge issued a report and recommendation and recommended

that the motion be denied. The undersigned adopted the report and recommendation

and denied the Rule 60(b) motion. (ECF Nos. 33 & 34.) The Third Circuit Court of

Appeal denied Pinson’s request for a certificate of appealability with respect to the first

Rule 60(b) motion. (ECF Nos. 38 & 39.)

After this court dismissed the petition as untimely filed on November 24, 2014,

Pinson filed another PCRA petition in his state court cases. On June 21, 2016, that

PCRA petition was dismissed. On June 8, 2017, the Pennsylvania Superior Court

affirmed the dismissal of that PCRA petition. On February 6, 2018, the Pennsylvania

Supreme Court denied Pinson an allowance of appeal.

On December 3, 2019, Pinson filed another PCRA petition. On August 3, 2020,

that PCRA petition was dismissed. On October 22, 2021, the Superior Court affirmed

the dismissal. On March 14, 2022, the Pennsylvania Supreme Court denied Pinson an

allowance of appeal.

On July 18, 2022, Pinson filed his second Rule 60(b) motion with this court. (ECF

No. 40.) On August 29, 2022, the magistrate judge filed the R&R recommending that

the court deny the second Rule 60(b) motion because Pinson did not satisfy his burden

to show that “extraordinary circumstances” exist to relieve Pinson from the final

judgment entered against him in this case. (ECF No. 44 at 20.) Pinson was informed

that any written objections to the R&R were due within fourteen days from the date of

the service of the R&R. (Id. at 21.) Pinson filed a motion requesting additional time to

file objections to the R&R, which the magistrate judge granted. (ECF Nos. 45 and 46.)

The magistrate judge ordered that any objection to the R&R be filed on or before

November 4, 2022. (ECF No. 46.)

On October 19, 2022, Pinson filed: (1) a motion requesting proper development

of the record (ECF No. 47); and (2) a motion for court order to unseal records and order

the Commonwealth to turn over all internal affairs records with respect to detective

Dennis Logan (ECF No. 48). The court construes the motion requesting proper

development of record as objections to a portion of the R&R.

On November 10, 2022, Pinson filed an “addendum” to his “original filing.” (ECF

No. 49.) On November 29, 2022, Pinson filed a motion to withdraw the addendum. (ECF

No. 50.) On December 1, 2022, Pinson filed a motion for subpoena duces tecum. (ECF

No. 51.) Pinson’s pending motions are now ripe for disposition by the court.

III. Standard of Review

In resolving a party’s objections, the court conducts a de novo review of any part

of the report and recommendation to which “specific written objections” have been

made. FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1). The court “may accept, reject, or

modify the recommended disposition[,]…receive further evidence[,]…or return the

matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3).

One district court has explained:

When no objection to a magistrate's report and recommendation is made

the district court reviews the report and recommendation for plain

error. See Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (“While

... [28 U.S.C. § 636(b)(1) ] may not require, in the absence of objections,

the district court to review the magistrate's report before accepting it, we

believe that the better practice is for the district judge to afford some level

of review to dispositive legal issues raised by the report.”); see also Tice v.

Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006) aff'd, 276 Fed. App'x 125

(3d Cir. 2008)(explaining that, by failing to object to a portion of a report and

recommendation, the litigant “waived its right to have this Court conduct

a de novo review,” and that in those circumstances, “the scope of [the

court's] review is far more limited and is conducted under the far more

deferential standard of ‘plain error’ ”).

Flagstar Bank, FSB v. Mook, No. CV 2016-95, 2018 WL 4517447, at *1 (D.V.I. Sept. 20,

2018); see Price v. Westmoreland Cnty. Prison, No. 2:21-CV-1726, 2022 WL 4133341,

at *1 (W.D. Pa. Sept. 12, 2022).

IV. Discussion

A. Applicable Law with respect to Rule 60(b)(6)

Rule 60(b) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.

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).

Here, Pinson in the pending Rule 60(b) motion argues that he is entitled to relief

in light of the Third Circuit Court of Appeals’ decision in Bracey v. Superintendent

Rockview SCI, 986 F.3d 274, 280 (3d Cir. 2021), and because he is actually innocent.

The magistrate judge in the R&R analyzed Pinson’s Rule 60(b) motion under Rule

60(b)(6), and Pinson did not object to the magistrate judge analyzing his motion under

Rule 60(b)(6). The court agrees with the magistrate judge’s determination that Pinson’s

arguments arise under Rule 60(b)(6), and, therefore, will analyze Pinson’s motion under

Rule 60(b)(6) to determine whether “any other reason…justifies relief” from this court’s

order dismissing his petition as untimely filed.

“Rule 60(b)(6) is a catch-all provision that authorizes [the] court to grant relief from

a final judgment for ‘any . . . reason’ other than those listed elsewhere in [Rule 60(b)].”

Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014) (quoting FED. R. CIV. P. 60(b)(6)). Rule

60(b)(6) “provides ‘a grand reservoir of equitable power to do justice in a particular case.’”

Id. at 122 (quoting Hall v. Cmty. Mental Health Ctr., 772 F.2d 42, 46 (3d Cir. 1985)). “The

grant or denial of a Rule 60(b)(6) motion is an equitable matter left . . . to the discretion of

[the] district court.” Id. at 124. The court is, however, “to dispense [its] broad powers under

[Rule] 60(b)(6) only in ‘extraordinary circumstances where, without such relief, an extreme

and unexpected hardship would occur.’” Id. at 120 (quoting Sawka v. Healtheast, Inc.,

989 F.2d 138, 140 (3d Cir. 1993)). “[The] movant . . . bears the burden of establishing

entitlement to [Rule 60(b)(6)] equitable relief. . . .” Id. at 122 (citing Mayberry v. Maroney,

558 F.2d 1159, 1163 (3d Cir. 1977)).

The court will address the two circumstances Pinson argues are extraordinary and

entitle him to Rule 60(b)(6) relief below.

B. Intervening Change in the Law

Pinson in his objections argues that the magistrate judge erred in the R&R by

concluding that—despite Pinson’s citations to Bracey and the alleged Brady material

withheld by the prosecution in his state-court case—his petition was untimely filed. The

court will conduct a de novo review of Pinson’s pending Rule 60(b) motion to the extent

he argues he is entitled to Rule 60(b) relief based upon the intervening change in law,

i.e., Bracey.

The United States Court of Appeals for the Third Circuit has “consistently

articulated . . . that intervening changes in the [controlling] law rarely justify relief from

final judgments under [Rule] 60(b)(6).” Cox, 757 F.3d at 121 (citing Reform Party of

Allegheny Cnty. v. Allegheny Cnty. Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999)

(en banc)) (emphasis in original); cf. Agostini v. Felton, 521 U.S. 203, 239 (1997)

(“Intervening developments in the law by themselves rarely constitute the extraordinary

circumstances required for relief under Rule 60(b)(6).”). The court must employ a “flexible,

multifactor approach to Rule 60(b)(6) motions . . . built upon a post-judgment change in

the law . . . that takes into account all the particulars of [the] movant’s case.” Id. at 122

(citing Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 274 (3d Cir. 2002)).

First, the court must determine whether the change of law relied upon by Pinson

is “material to the basis on which…[this] court initially denied habeas relief.” Bracey, 986

F.3d at 284 (citing Norris v. Brooks, 794 F.3d 401, 404–05 (3d Cir. 2015)). If the change

of law is material to the basis upon which this court initially denied Pinson habeas relief,

the court must consider the factors set forth by the Third Circuit Court of Appeals in Cox

v. Horn, 757 F.3d 113, 122 (3d Cir. 2014) (the “Cox factors”), to determine whether the

change in law constitutes extraordinary circumstances warranting relief under Rule

60(b)(6). The Cox factors are:

(1) the effect of the change in decisional law on our prior ruling, which

carries “particular weight where ... that change concerns a ‘constitutional

rule or right for criminal defendants,’ ” (2) the merits of the petitioner's

underlying claim for habeas relief, (3) principles of finality and comity, (4)

the petitioner's diligence in pursuing review, and (5) the imperative of

correcting a fundamentally unjust incarceration.

White v. Vaughn, No. CV 94-6598, 2022 WL 17993129, at *4 (E.D. Pa. Dec. 29, 2022)

(citing Bracey, 986 F.3d at 295-96).

1. Whether Bracey is material to this court’s determination that Pinson’s

petition was untimely filed

A discussion of Bracey and this court’s dismissal of Pinson’s petition is necessary

to determine whether Bracey—the law upon which Pinson relies in his Rule 60(b)(6)

motion—is material to the court’s decision.

a. Bracey

The Third Circuit Court of Appeals in Bracey explained the import of the

prosecution’s duty to disclose exculpatory and material information to a defendant

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), in connection with a petitioner’s duty

to “exercise due diligence” to discover the factual predicate of his or her habeas claims,

pursuant to 28 U.S.C. § 2244(d)(1). Under Brady and its progeny, the prosecution must

disclose to the defense evidence that is both exculpatory and material; indeed, “‘the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.’” United States v. Higgs,

713 F.2d 39, 41 (3d Cir. 1983) (quoting Brady, 373 U.S. at 87). Under Brady, “even

though a defendant has not made a specific request for exculpatory material, the

prosecutor is under a duty to volunteer evidence ‘obviously of such substantial value to

the defense that elementary fairness requires it to be disclosed.’” Id. (quoting United

States v. Agurs, 427 U.S. 97, 110 (1976), holding modified by United States v. Bagley,

473 U.S. 667 (1985)).

Following Brady, lower courts placed certain limitations on the materials the

government must produce. For example, courts held that “[t]he government…[was] not

obliged under Brady to furnish a defendant with information which he already has or, with

any reasonable diligence, he can obtain himself.” United States v. Prior, 546 F.2d 1254,

1259 (5th Cir. 1977); Wright v. Hopper, 169 F.3d 695, 702 (11th Cir. 1999), cert. denied,

528 U.S. 934 (1999) (“The prosecution is not required to furnish a defendant with

exculpatory evidence that is fully available to him through the exercise of due diligence.”);

United States v. Dean, 722 F.2d 92, 95 (5th Cir. 1983) (“Brady rights are not denied where

the information was fully available to the defendant and his reason for not obtaining and

presenting such information was his lack of reasonable diligence.”); 2 CHARLES ALAN

WRIGHT, ANDREW D. LEIPOLD, PETER J. HENNING, & SARAH N. WELLING, FEDERAL PRACTICE

AND PROCEDURE § 256 (4th ed. 2016) (“Evidence equally available to the defendant by

the exercise of due diligence means that the government is not obligated under Brady to

produce it.”).

“[T]he United States Supreme Court[, however,] has never recognized an

affirmative due diligence duty of defense counsel as part of Brady yet alone an exception

to the mandate of Brady.” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263,

290 (3d Cir. 2016). The court of appeals in Dennis explained:

The Supreme Court has noted that its precedent “lend[s] no support

to the notion that defendants must scavenge for hints of

undisclosed Brady material when the prosecution represents that all such

material has been disclosed.” Banks, 540 U.S. at 695, 124 S.Ct. 1256. To

the contrary, defense counsel is entitled to presume that prosecutors have

“discharged their official duties.” Id. at 696, 124 S.Ct. 1256 (quoting Bracy

v. Gramley, 520 U.S. 899, 909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997)).

Further, the duty to disclose under Brady is absolute—it does not depend

on defense counsel's actions. United States v. Agurs, 427 U.S. 97, 107, 96

S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“[I]f the evidence is so clearly supportive

of a claim of innocence that it gives the prosecution notice of a duty to

produce, that duty should equally arise even if no request is

made.”). Brady’s mandate and its progeny are entirely focused on

prosecutorial disclosure, not defense counsel's diligence.

…

That the government may be burdened by the Brady rule does not

undercut its need to comply with it. The imposition of an affirmative due

diligence requirement on defense counsel would erode the prosecutor's

obligation under, and the basis for, Brady itself.

Id. at 290.

In Bracey, the court of appeals considered whether its holding in Dennis impacted

a petitioner’s duty to exercise due diligence to discover the factual predicate of his or her

habeas claims under 28 U.S.C. § 2244(d)(1)(D). Section 2244(d)(1)(D), which governs

the timeliness of state court habeas petitions filed in federal court, provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of

due diligence.

28 U.S.C. § 2244(d)(1) (emphasis added).

In Bracey, the petitioner was convicted in state court of murder and sentenced to

life in prison. The prosecution’s evidence relied heavily upon the testimony of two

cooperators. At trial, the prosecution presented testimony that, among other things, the

cooperators received favorable plea agreements in exchange for their testimony against

the petitioner. Fifteen years after his conviction, the petitioner learned that the

government at trial did not disclose all the criminal cases that were pending against the

cooperators. Based upon that information, the petitioner filed a PCRA petition in the

state court. The state courts, however, dismissed the petition as time barred because

“the factual basis of the claim could have ‘been ascertained [earlier] by the exercise of

due diligence.’” Bracey, 986 F.3d at 280 (quoting 42 PA. CONS. STAT. § 9545(b)(1)(ii))

(alteration in original)).

One year later, the petitioner filed a federal habeas petition “asserting Brady

claims based on the allegedly withheld material exculpatory evidence.” Id. The district

court dismissed the petition as untimely and explained:

[R]egardless of the prosecution's “alleged lack of full disclosure, including

the specific terms of the plea agreements and possible maximum penalties

[for] each of the witnesses,” JA 74—§ 2244(d)(1)(D) obliges a defendant

who is aware of witnesses’ favorable plea agreements to continually seek

out “the full extent of those plea agreements,” even after the defendant is

convicted, JA 75….”[B]ecause the full extent of the plea agreements and

the sentences received by the witnesses were a matter of public record,”

Bracey “could have found the factual predicate of [his Brady] claim through

the exercise of due diligence well before October 2010,” id., meaning that

he had filed his petition more than one year after the “factual predicate” for

his Brady claim “could have been discovered through the exercise of due

diligence,” 28 U.S.C. § 2244(d)(1)(D).

Id. The petitioner appealed the district court’s ruling, but the court of appeals did not issue

a certificate of appealability based upon “then-existing case law.” Id.

After the court of appeals decided Dennis, the petitioner filed in the district court

a motion for relief from judgment, pursuant to Rule 60(b). He argued that there is no

“due diligence” requirement under Brady, and, likewise, § 2244(d)(1)(D) “does not

require petitioners in his position to undertake efforts to find exculpatory material.”

Bracey, 986 F.3d at 280-81. The district court denied the motion without a reference to

or discussion of Dennis. The petitioner appealed and the court of appeals certified three

questions:

(a) whether a COA is required in an appeal from the denial of a Rule 60(b)

motion seeking reconsideration of the dismissal of a federal habeas petition

on procedural grounds; (B) if a COA is required, whether one should be

granted here; and (C) if a COA is granted, whether the District Court abused

its discretion in denying Bracey's Rule 60(b) motion without considering

Dennis’s effect on its previous decision dismissing Bracey's habeas petition.

Id. at 281. The court of appeals answered the first two questions in the affirmative and

held that the petitioner required a certificate of appealability and the petitioner was

entitled to a certificate of appealability in the case. Id. at 283-284.

With respect to the third question, i.e., whether the district court abused its

discretion when it denied the petitioner’s Rule 60(b) motion, the court of appeals

analyzed whether the petitioner satisfied his burden to show that extraordinary

circumstances warranted relief under Rule 60(b)(6). The court of appeals first analyzed

whether Dennis was a change in decisional law material to the district court’s dismissal

of the petitioner’s Rule 60(b) motion as untimely under § 2244(d)(1)(D). The court of

appeals in Bracey recognized that Dennis “did not involve § 2244(d)(1)(D) directly and

did not alter that provision’s requirement that a petitioner exercise ‘reasonable diligence

in the circumstances…’” Id. at 290.

The court of appeals explained the import of Dennis with respect to the case

before it, i.e., a case in which a habeas petitioner alleged a Brady violation, as follows:

§ 2244(d)(1)(D) asks whether a “person in [the petitioner's] position would

reasonably expect” that independent investigation would yield evidence of

a Brady violation, Wilson, 426 F.3d at 661, and Dennis answers that, absent

evidence to the contrary, a petitioner would reasonably expect—and,

indeed, “is entitled to presume,” 834 F.3d at 290—the exact opposite: that

there is no Brady violation to be discovered.

Bracey, 986 F.3d at 291. Based upon the foregoing, the court of appeals recognized that

Dennis was a change in decisional law material to the district court’s dismissal of the

petitioner’s Rule 60(b) motion as untimely. The court of appeals explained: “The [d]istrict

[c]ourt dismissed…[the petitioner’s] habeas petition as untimely because the allegedly

undisclosed Brady material was a matter of public record, meaning…[the petitioner] had

failed to ‘exercise…due diligence.’” Id. at 294 (quoting 28 U.S.C. § 2241(d)(1)(D)).

Second, the court of appeals in Bracey considered whether the district court

“properly applied the totality-of-the-circumstances analysis” to determine whether the

petitioner satisfied his burden to show that the change in law set forth in Dennis and the

facts of the case presented extraordinary circumstances warranting Rule 60(b)(6) relief.

The court of appeals explained that a district court should consider the factors identified

in Cox to “answer that question.” Bracey, 986 F.3d at 295. The district court in Bracey,

however, did not address the Cox factors or conduct any analysis of the issue; rather, “it

issued a one-page order that summarily rejected relief without citing Cox, addressing

any of the Cox factors, or even acknowledging the material change in law discussed in

the motion.” Id. at 296. The court of appeals held that—under those circumstances—the

district court abused its discretion. Id. The court of appeals vacated the judgment of the

district court and remanded the case for the district court to “‘take the first pass at

weighing” the Cox factors, conduct additional factfinding, and consider additional

briefing. Id.

On remand, the district court appointed counsel to represent the petitioner and

scheduled an evidentiary hearing. Bracey v. Lamas, No. 3:11-CV-2329, 2022 WL

4111865, at *7 (M.D. Pa. Sept. 8, 2022) (“Lamas”). The parties, however, agreed to

cancel the evidentiary hearing and provided a stipulated factual record in lieu of the

hearing. The court relied upon the court of appeals’ holding that Dennis “was material to

the dismissal of…[the petitioner’s] petitioner because it clarified that a defendant ‘can

reasonably expect—and is entitled to presume—that the government fulfilled its Brady

obligations because the prosecution’s duty to disclose is absolute and in no way hinges

on efforts by the defense.’” Id. (quoting Bracey, 986 F.3d at 279).

The court in Lamas then considered the Cox factors. It concluded that: the

change of law announced in Dennis was not extraordinary because—as the Supreme

Court recognized in Gonzalez v. Crosby, 545 U.S. 524, 534-35 (2005)—an “after-the-

fact change in decisional law interpreting AEDPA's one-year statute of limitations is not

by itself an extraordinary circumstance[;]” the alleged Brady material was not material to

the petitioner’s guilt or innocence because the witnesses to which it applied “were

heavily impeached at trial[;]” and principles of finality and comity weighed against a

finding of extraordinary circumstances because the petitioner’s conviction and sentence

became final nearly 30 years prior to the court’s decision and his petition was dismissed

four years before Dennis was decided. The court found that the petitioner was diligent in

pursuing his Dennis claim, but that factor alone did not constitute extraordinary

circumstances in light of the other Cox factors. Id. at *10-11. On that basis, the court in

Lamas denied the petitioner’s Rule 60(b)(6) motion and declined to issue a certificate of

appealability. Id. at *11.

As discussed above, Pinson relies upon Bracey to show that extraordinary

circumstances exist in this case that warrant relief under Rule 60(b)(6). A discussion of

this court’s decision to dismiss Pinson’s petition as untimely is warranted to understand

whether Bracey was a change in decisional law material to this court’s dismissal of the

petitioner’s Rule 60(b) motion as time barred.

b. This court’s decision dismissing Pinson’s petition as

untimely filed

Pinson filed his petition in this case on March 31, 2014. On July 30, 2014,

defendants filed a motion to dismiss the petition arguing, among other things, that the

petition was untimely filed. (ECF No. 9.) Pinson filed a response in opposition to the

motion. On October 14, 2014, the magistrate judge issued a report and recommendation

that the court should dismiss the petition as untimely filed. Pinson filed objections to the

report and recommendation. On November 14, 2014, this court overruled the objections

filed by Pinson and adopted as the opinion of the court the report and recommendation

of the magistrate judge that the motion to dismiss the petition be denied as untimely filed.

(ECF No. 15.)

The magistrate judge in the report and recommendation explained that the petition

was untimely filed with respect to both of Pinson’s state-court cases:

The statute of limitations set out in § 2244(d)(1) must be applied on

a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), cert[.]

denied, 543 U.S. 1067 (2005). In analyzing whether a petition for writ of

habeas corpus has been timely filed under the one-year limitations period,

a federal court must undertake a three-part inquiry. First, the court must

determine the “trigger date” for the one-year limitations period pursuant to

section 2244(d)(1). Second, the court must determine whether any

“properly filed” applications for post-conviction or collateral relief were

pending during the limitations period that would toll the statute pursuant to

section 2244(d)(2). Third, the court must determine whether any of the other

statutory exceptions or equitable tolling should be applied on the facts

presented.

(ECF No. 13 at 12.) Applying the foregoing three-part analysis to this case, the magistrate

judge explained that with respect to CP-02-CR-0013750-1999:

1. The trigger date for the purpose of the AEDPA was the date that Pinson’s

judgment of sentence became final pursuant to § 2244(d)(1)(A), which was

November 26, 2002, and the one-year (365-day) statute of limitations began to

run the next day;1

2. The statute of limitations ran for 280 days until Pinson filed his first PCRA

petition on September 3, 2003. On that date, the statute of limitations was tolled

and remained tolled until the conclusion of those proceedings before the

Pennsylvania Supreme Court on August 20, 2009. As of August 20, 2009,

Pinson had 85 days to file a timely petition in this court. The statute of limitations

was not tolled during the pendency of Pinson’s second (October 28, 2009

through April 27, 2012) or third (and May 10, 2012 through February 26, 2014)

PCRA petitions because the Pennsylvania state courts determined those

petitions were time barred under applicable PCRA law. Based upon the

foregoing, the 85 days remaining for Pinson to file his petition at the conclusion

of his first PCRA proceedings expired on November 13, 2009, i.e., 85 days after

August 20, 2009;2 and

1 The magistrate judge explained:

Petitioner was sentenced on September 12, 2000. He timely

appealed to the Pennsylvania Superior Court, and Petitioner’s judgment of

sentence was affirmed (1642 WDA 2000) on March 27, 2002. The

Pennsylvania Supreme Court denied Petitioner’s PAA (218 WAL 2002) on

August 28, 2002. Pursuant to Rule 13 of the Supreme Court of the United

States, Petitioner then had 90 days to file a petition for a writ of certiorari,

which he did not do. Therefore, his sentence became final for AEDPA

purposes on November 26, 2002, and his one-year limitations period for

filing a federal habeas corpus petition started to run the next day.

(ECF No. 13 at 13.)

2 The magistrate judge explained:

As to the second inquiry, the one-year limitations period was tolled

during the pendency of Petitioner’s “properly filed” state post-conviction

proceedings pursuant to section 2244(d)(2). Two-hundred eighty (280) days

of Petitioner’s one-year AEDPA limitations period elapsed before Petitioner

filed his first PCRA petition on September 3, 2003, which tolled the statute

of limitations until the Pennsylvania Supreme Court denied Petitioner’s PAA

on August 20, 2009. See Stokes v. District Attorney of the County of

Philadelphia, 247 F.3d 539 (3d Cir. 2001) (The statute of limitations is not

tolled during the time period in which petitioner may file a petition for writ of

certiorari following the appeal of a denial of a state post-conviction

proceeding).

3. Even if the statute of limitations was tolled during the pendency of Pinson’s second

and third PCRA petitions, the petition was untimely filed in this court because 391

unaccounted for days, 26 more than allotted for by § 2244, lapsed between

Pinson’s trigger date, i.e., November 26, 2002, and the date he filed his petition in

this court, i.e., March 31, 2014.3

Following the conclusion of Petitioner’s first PCRA proceedings,

sixty-eight (68) days elapsed before he filed his second PCRA petition on

October 28, 2009, which was ultimately dismissed as untimely by the PCRA

court. On March 28, 2012, the Pennsylvania Superior Court affirmed,

concluding that Petitioner’s second PCRA petition was time-barred, and

that the PCRA court lacked jurisdiction to entertain the merits of Petitioner’s

claims. Petitioner did not pursue a PAA with the Pennsylvania Supreme

Court, and his time for doing so expired on April 27, 2012.

Following the conclusion of Petitioner’s second PCRA proceedings,

twelve (12) days elapsed before he filed his third PCRA petition on May 10,

2012, which was also dismissed as untimely by the PCRA court on

November 15, 2012. On July 16, 2013, the Pennsylvania Superior Court

affirmed, concluding that Petitioner’s third PCRA petition was time-barred,

and that the PCRA court lacked jurisdiction to entertain the merits of

Petitioner’s claims. On February 26, 2014, the Pennsylvania Supreme

Court denied Petitioner’s PAA. Because Petitioner’s second and third

PCRA petitions were deemed untimely by the PCRA and Pennsylvania

Superior courts, they were not “properly filed” pursuant to section

2244(d)(2), and, therefore, the time they were pending (October 28, 2009

through April 27, 2012 and May 10, 2012 through February 26, 2014) did

not toll any portion of Petitioner’s one-year AEDPA limitations period. See

Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction

petition is untimely under state law, that is the end of the matter for purposes

of § 2244(d)(2).”) (internal quotation omitted). As such, the time for

Petitioner to file his federal habeas petition expired on November 13,

2009….Because he did not file it until March 30, 2014, over four years and

four months later, the petition is untimely.

(ECF No. 13 at 13-14.)

3 The magistrate judge explained:

Even assuming that Petitioner were given the benefit of tolling during the

time his second and third PCRA proceedings were pending in the state

courts, his federal habeas petition would still be untimely. Two-hundred

eighty (280) days elapsed between the time Petitioner’s judgment of

sentence became final and the time he filed his first PCRA petition, sixty-

eight (68) days elapsed between the time Petitioner’s first PCRA

proceedings concluded and the time he initiated his second PCRA

proceedings, twelve (12) days elapsed between the time Petitioner’s

(ECF No. 13 at 13-14.) Based upon the foregoing, the magistrate judge (and this court by

adoption of the report and recommendation) concluded that the petition was untimely filed

in this court with respect to CP-02-CR-0013750-1999.

Applying the three-part framework to CP-02-CR-0014157-1999, the magistrate

judge concluded:

1. The date on which the one-year statute of limitations for the filing of the petition

in this court began to run is the date that Pinson’s judgment of sentence

became final, which was June 28, 2004. The one-year statute of limitations

began to run the next day. Because there was no basis for tolling the one-year

statute of limitations, Pinson’s petition in this court was due on or before June

28, 2005;

2. Pinson first filed for PCRA relief in state court with respect to CP-02-CR-

0014157-1999 on May 10, 2012, i.e., nearly seven years after the one-year

statute of limitations expired, and, therefore, his request for relief in the PCRA

court was time barred. Thus, Pinson did not properly file any PCRA petitions

that tolled the one-year statute of limitations, pursuant to § 2244(d)(2); and

3. There was no other basis, e.g., a statutory exception or equitable tolling, that

tolled the one-year statute of limitations.

(ECF No. 13 at 16.) Based upon the foregoing, the magistrate judge—and this court via

adoption of the report and recommendation—concluded that Pinson’s petition in this court

with respect to CP-02-CR-0014157-1999 was untimely filed.

c. Bracey—material change of law

second PCRA proceedings concluded and the time he initiated his third

PCRA proceedings, and thirty-one (31) days elapsed between the time his

third PCRA proceedings concluded and the time he initiated these federal

habeas proceedings. In total, three-hundred ninety-one (391) days elapsed

between filings, so Petitioner’s federal habeas petition would be untimely by

twenty-six (26) days even if this Court were to grant Petitioner the equitable

tolling he seeks. Accordingly, the petition should be dismissed as untimely

as to CC No. 199913750.

(ECF No. 13 at 15.)

Pinson in his petition argued that the prosecution in his state-court cases failed to

disclose Brady material. Pinson in his pending Rule 60(b) motion alleges that the

prosecution withheld impeachment material in the form of: (1) information about a civil

rights case filed pursuant to 42 U.S.C. § 1983, i.e., Manns v. City of Pittsburgh, Civ. A.

No. 00-838 (W.D. Pa. May 1, 2000), in which the plaintiff alleged the prosecution’s star

witness in Pinson’s state-court cases, i.e., detective Dennis Logan (“Logan”), among

other police officers, unlawfully interrogated the plaintiff; and (2) an Office of Municipal

Investigations (“OMI”) report detailing allegations of misconduct by Logan. According to

Pinson, he learned about the Manns case in 2002 and learned about the OMI report on

February 11, 2011. This court via adoption of the report and recommendation denying

Pinson’s petition as untimely determined the trigger dates for the one-year statute of

limitations applicable to his petition was the date on which each of his convictions became

final pursuant to § 2244(d)(1)(A), which was November 26, 2002, for CP-02-CR-0013750-

1999, and June 28, 2004, CP-02-CR-0014157-1999. This court—via the adoption of the

report and recommendation—did not consider whether February 11, 2011, the date on

which Pinson learned about the OMI Report, i.e., the alleged undisclosed Brady material,

was the trigger date for the one-year statute of limitations applicable to Pinson’s petition.

One district court has explained the import of Bracey as follows:

Bracey holds a petitioner asserting Brady violations must petition

within one year of the date he obtains reason to expect investigation would

yield evidence of a Brady violation.

Winn v. Ferguson, Civ. A. No. 19-3089, 2022 WL 1557778, at *3 (E.D. Pa. May 16, 2022).

Under those circumstances, an argument may be made that Pinson’s one-year statute of

limitations with respect to any claim based upon the prosecution’s alleged failure to

produce the OMI report began to run on February 11, 2011 (as opposed to the dates on

which his convictions and sentences became final), and, therefore, Bracey is a change in

law material to the basis upon which this court originally denied Pinson’s petition. The

court, therefore, must consider the Cox factors to determine whether Pinson satisfied his

burden to show that extraordinary circumstances exist warranting relief under Rule

60(b)(6).

In the R&R, the magistrate judge concluded that Pinson did not satisfy his burden

to show that extraordinary circumstances exist in this case because, in part, Bracey did

not “alter…the Court’s ruling that Petitioner’s Brady claim was untimely, or, in other words,

that it was filed within one year of the date on which Petitioner had reason to believe that

the prosecution may have violated its duty of disclosure.” (ECF No. 44 at 11.) While

Bracey may not alter the ultimate disposition of this case, the court must consider Bracey

because—pursuant to Bracey—the trigger date for Pinson’s alleged Brady claim

concerning the OMI report was February 11, 2011, i.e., the date on which he learned

about the OMI report, and not the dates on which his convictions and sentences became

final. Under those circumstances, the court must consider the Cox factors to determine

whether Pinson showed extraordinary circumstances exist in this case warranting Rule

60(b)(6) relief. The court will undertake that analysis below.

2. Cox Factors

As discussed above, the Cox factors are:

(1) the effect of the change in decisional law on our prior ruling, which

carries “particular weight where ... that change concerns a ‘constitutional

rule or right for criminal defendants,’ ” (2) the merits of the petitioner's

underlying claim for habeas relief, (3) principles of finality and comity, (4)

the petitioner's diligence in pursuing review, and (5) the imperative of

correcting a fundamentally unjust incarceration.

White, 2022 WL 17993129, at *4. Each factor will be addressed.

a. The effect of the change in decisional law on our prior ruling factor

As the magistrate judge concluded, even considering Bracey and assuming Pinson

has a meritorious Brady claim, the outcome of Pinson’s petition would be the same; it

would be dismissed as untimely filed. In his petition, Pinson argues:

Petitioner was recently provided a data sheet of the Office of

Municipal investigations (“OMI”), detailing allegations of misconduct by

Homicide Detective Dennis A. Logan, the linchpin in the Commonwealth’s

case against Petitioner. Petitioner learned of the facts contained in the

OMI data sheet on February 11, 2011, when another inmate, Charles

Jones gave him a copy that report. SEE: (Affidavit of Charles Jones

attached).

The quest for information regarding Detective Logan began in

or about the year 2002 when Petitioner heard from a third party that

the improper and coercive tactics used by Detective Dennis Logan to

secure confessions from suspects was widespread and may have

been reported. Upon reading a news article that indicated Detective

Logan was found liable in a Federal District Court of violating a

suspects[’] rights Petitioner was even more diligent in searching for

any information relevant to validating the allegation. Those efforts

included, inter alia, formal requests pursuant to the Right to Know and

Freedom of Information Acts. Petitioner went so far as writing the Attorney

General of Pennsylvania. SEE: (Attached letters). At one point the Law

Department for the City of Pittsburgh informed Petitioner that any

information relating to Detective Dennis Logan is excluded under the right

to know law. [sic] SEE: (Attached response letter dated April 13, 2004).

Consequently, despite Petitioner’s diligence his efforts had been

unsuccessful until February 6, 2011. As the claims were filed within 60

days of the date the information had been secured by Petitioner.

(ECF No. 3 at 9 (emphasis added).) Accepting the foregoing assertions as true, Pinson—

at the latest—learned about the Manns case in 2002 and learned about the OMI report

on or about February 11, 2011. Pursuant to Bracey and assuming the Manns case was

Brady material, the trigger date for Pinson’s petition with respect to the Manns case was

a date in 2002. Pursuant to Bracey and assuming the OMI report was Brady material, the

trigger date for Pinson’s petition with respect to the OMI report would be February 11,

2011. Pursuant to § 2244(d)(1), Pinson had one year from those trigger dates to file his

petition in this court, i.e., until 2003 with respect to the Manns case, and until February

11, 2012, with respect to the OMI report. Pinson, however, did not file his petition in this

court until March 30, 2014, i.e., more than eleven years after the statute of limitations

expired with respect to the Manns case and more than two years after the statute of

limitations expired with respect to the OMI report.

It appears from the record that Pinson’s second PCRA petition was pending in the

state courts when he discovered the OMI report, i.e., from October 28, 2009, through

March 28, 2012, and his third PCRA petition was pending in the state courts from May

10, 2012, through February 26, 2014. As the magistrate judge explained, however, the

state courts determined that under Pennsylvania law, i.e., 42 PA. CONS. STAT. § 9545, the

second and third PCRA petitions were untimely filed. Under those circumstances,

Pinson’s filing of the second and third PCRA petitions did not toll the statute of limitations,

pursuant to 28 U.S.C. § 2244(d)(2).4 (ECF No. 40 (citing Artuz v. Bennett, 531 U.S. 4, 8,

11 (2000); Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005); Merritt v. Blaine, 326 F.3d

157, 165-66 (3d Cir. 2003)); see Jenkins v. Superintendent of Laurel Highlands, 705 F.3d

80, 85 (3d Cir. 2013) (“[I]f a state court determines that an application is untimely, ‘that

[is] the end of the matter’ for purposes of statutory tolling of AEDPAs limitation

period…‘regardless of whether it also addressed the merits of the claim, or whether its

4 Section 2244(d)(2) provides:

The time during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this

subsection.

Id.

timeliness ruling was ‘entangled’ with the merits[.]”). Based upon the foregoing, this factor

weighs heavily against a finding that extraordinary circumstances exist in this case that

warrant Rule 60(b)(6) relief because—even if Bracey is applied—the petition was

untimely filed.

This factor also weighs against a finding that extraordinary circumstances exist in

this case because “‘[i]t is hardly extraordinary’” that—after a district court dismisses as

untimely a petition under “then-controlling circuit precedent”—the court of appeals

changes course with respect to its interpretation of § 2244(d)(1). Lamas, 2022 WL

4111865, at *9 (quoting Gonzalez v. Crosby, 545 U.S. 524, 527 (2005)).

b. The merits of the petitioner's underlying claim for habeas relief

The court need only consider the merits of Pinson’s petition to the extent he raised

claims based upon violations of Brady because Bracey was a material change in the law

with respect to only those claims. Winn, 2022 WL 155778, at *4 (“Assuming Bracey

warranted Rule 60 relief, we would consider only the underlying Brady claim which Bracey

makes timely and not…[petitioner’s] untimely ineffective-assistance-of-counsel claims

which Bracey cannot excuse.”). As discussed above, Pinson in the Rule 60(b) motion

pending before the court argues that the prosecution in his state court cases violated

Brady when it did not produce to him: (1) “the entire Manns case file as documented in

the Western District Court at 2:00-cv-838[;]” and (2) the OMI report with respect to Logan.

(ECF No. 40 at 7.)

i. Brady material

One district court recently explained:

Under Brady, suppression of evidence that is favorable to a

defendant and material to the defendant’s guilt or punishment violates the

defendant’s right to due process. Brady, 373 U.S. at 87. Brady applies to

both exculpatory evidence and evidence that could be used to impeach

witnesses. See Bracey, 986 F.3d at 285 n.10; Giglio v. United States, 405

U.S. 150, 154 (1972). There are three components to a Brady violation: (1)

the evidence at issue “must be favorable to the accused, either because it

is exculpatory, or because it is impeaching”; (2) the evidence “must have

been suppressed by the State, either willfully or inadvertently”; and (3)

“prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82

(1999). To establish prejudice, the petitioner must establish a reasonable

probability that a different result would have occurred if the evidence had

not been suppressed. Id. at 291. A mere possibility of a different result is

not sufficient. Id. A reasonable probability occurs when suppression of the

evidence ‘undermines confidence in the outcome of the trial.’ ” Kyles v.

Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473

U.S. 667, 678 (1985)).

Lamas, 2022 WL 4111865, at *9. The Third Circuit Court of Appeals has explained that

the materiality prong of the Brady analysis does not require that the Brady material be

admissible at trial. Dennis v. Sec’y, Pennsylvania Dep’t of Corr., 834 F.3d 263, 310 (3d

Cir. 2016). The court of appeals explained:

“[I]nadmissible evidence may be material if it could have led to the discovery

of admissible evidence. Furthermore … we think that inadmissible evidence

may be material if it could have been used effectively to impeach or corral

witnesses during cross-examination. Thus, the admissibility of the evidence

itself is not dispositive for Brady purposes. Rather, the inquiry is whether the

undisclosed evidence is admissible itself or could have led to the discovery

of admissible evidence that could have made a difference in the outcome of

the trial sufficient to establish a “reasonable probability” of a different result.”

Id. (quoting Johnson v. Folino, 705 F.3d 117 (3d Cir. 2013)).

Based upon the foregoing, the proper inquiry is whether the alleged Brady

material is admissible, whether it is impeachment material, or whether the prosecution’s

disclosure of the alleged Brady material could have led to the discovery of admissible

evidence or impeachment material. Whether the disclosure of alleged Brady material

could have led to the discovery of admissible evidence or impeachment material cannot

be based upon speculation; rather, there must be a reasonable probability that if the

prosecution provided the Brady material to the defendant, a different result would have

occurred. Dennis, 834 F.3d at 310; Commw. v. Willis, 46 A.3d 648, 654 (Pa. 2012)

(explaining that whether the “Commonwealth’s failure to disclose…[inadmissible]

evidence adversely affected the presentation of the defense at trial, or the defense’s

preparation for trial” cannot be based upon “mere speculation”).

Here, Pinson does not argue the Brady material would be admissible. He asserts

that the Brady issues he raises are impeachment material or that discovery could lead

to impeachment material. The court will address those arguments below.

ii. Impeachment material

The admissibility of evidence in Pinson’s state-court case is governed by the

Pennsylvania Rules of Evidence. McDaniel v. Sorber, No. CV 21-738, 2022 WL

4988167, at *7 (E.D. Pa. Aug. 22, 2022), report and recommendation adopted, No. CV

21-738, 2022 WL 5027197 (E.D. Pa. Oct. 4, 2022) (analyzing the state-court petitioner’s

claim that his counsel was ineffective because he did not object to a cross examination

of the state-court petitioner with respect to a prior conviction under the Pennsylvania

Rules of Evidence); R.R. v. Beard, No. CIV.A. 09 - 1102, 2015 WL 5730784, at *56

(W.D. Pa. Sept. 30, 2015) (analyzing in a state-court petitioner’s habeas case whether

impeachment material would have been admissible at the petitioner’s state-court trial

under the Pennsylvania Rules of Evidence); Jones v. Kyler, No. CIV.A. 02-09510, 2003

WL 22331773, at *10 (E.D. Pa. July 23, 2003), report and recommendation adopted,

No. CIV.A. 02-9510, 2007 WL 187689 (E.D. Pa. Jan. 22, 2007) (same).

Pennsylvania Rule of Evidence 607, entitled “Who May Impeach a Witness,

Evidence to Impeach a Witness[,]” provides:

(a) Who May Impeach a Witness. Any party, including the party that called

the witness, may attack the witness's credibility.

(b) Evidence to Impeach a Witness. The credibility of a witness may be

impeached by any evidence relevant to that issue, except as otherwise

provided by statute or these rules.

Pa. R. Evid. 607. The Supreme Court of Pennsylvania has explained: “It is well settled

‘that a witness may be cross-examined as to any matter tending to show the interest or

bias of that witness.’” Commw. v. Solano, 129 A.3d 1156, 1175 (Pa. 2015) (quoting

Commw. v. Nolen, 634 A.2d 192, 195 (Pa. 1993)).

The comment to Rule 607, however, explains that there are limits to the

admissibility of impeachment material:

Pa.R.E. 607(b) applies the test for relevant evidence of Pa.R.E. 401 to

evidence offered to impeach the credibility of a witness. As is the case under

Pa.R.E. 402, there are limits on the admissibility of evidence relevant to the

credibility of a witness imposed by these rules. For example, Pa.R.E. 403

excludes relevant evidence if its probative value is outweighed by danger

of unfair prejudice, etc., and there are specific limitations on impeachment

imposed by Rules 608, 609 and 610. There are statutory limitations such as

18 Pa.C.S. § 3104 (Rape Shield Law).

PA. R. EVID. 607, cmt. With respect to whether impeachment material is relevant under

Pennsylvania Rule of Evidence 401, the Supreme Court of Pennsylvania has explained:

“‘Proof of bias is almost always relevant because the jury, as finder of fact and weigher

of credibility, has historically been entitled to assess all evidence which might bear on

the accuracy and truth of a witness' [sic] testimony.’” Commw. v. Abu-Jamal, 555 A.2d

846, 853 (Pa. 1989) (quoting and adopting the rationale of United States v. Abel, 469

U.S. 45, 53 (1984) (emphasis in original)). “Bias” is defined as: “‘the relationship

between a party and a witness which might lead the witness to slant, unconsciously or

otherwise, his testimony in favor of or against a party.’” Abu-Jamal, 555 A.2d at 853

(quoting Abel, 469 U.S. at 53).

Pennsylvania Rule of Evidence 608, entitled “A Witness’s Character for

Truthfulness or Untruthfulness[,]” imposes limits on the admissibility of certain

impeachment material. Rule 608 provides:

(a) Reputation Evidence. A witness's credibility may be attacked or

supported by testimony about the witness's reputation for having a

character for truthfulness or untruthfulness. But evidence of truthful

character is admissible only after the witness's character for truthfulness

has been attacked. Opinion testimony about the witness's character for

truthfulness or untruthfulness is not admissible.

(b) Specific Instances of Conduct. Except as provided in Rule 609

(relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may not be attacked or

supported by cross-examination or extrinsic evidence concerning

specific instances of the witness' conduct; however,

(2) in the discretion of the court, the credibility of a witness who

testifies as to the reputation of another witness for truthfulness or

untruthfulness may be attacked by cross-examination concerning

specific instances of conduct (not including arrests) of the other

witness, if they are probative of truthfulness or untruthfulness; but

extrinsic evidence thereof is not admissible.

PA. R. EVID. 608. Rule 608(b)(1) “prohibits the use of evidence of specific instances of

conduct to support or attack credibility.” PA. R. EVID. 608, cmt. One district court has

explained:

In Pennsylvania, a witness's credibility can be challenged

with crimen falsi evidence, see Commonwealth v. Harris, 442 Pa.Super.

116, 658 A.2d 811, 812 (1995) (quoting Commonwealth v. Randall, 515 Pa.

410, 528 A.2d 1326, 1329 (1987) ) (“evidence of prior convictions can be

introduced for the purpose of impeaching the credibility of a witness if the

conviction was for an offense involving dishonesty or false statements”), or

by the witness's reputation or character for

untruthfulness. See Pa.R.E. 608. As to the latter, evidence of reputation or

character for truthfulness does not refer to specific instances of truthfulness

or untruthfulness.

Charleston v. Gilmore, 305 F. Supp. 3d 612, 662 (E.D. Pa. 2018) (citing

Commw. v. Minich, 4 A.3d 1063, 1068 (Pa. Super. Ct. 2010)). The Pennsylvania

Supreme Court and the Superior Court of Pennsylvania “have repeatedly held that

evidence that a witness has made false statements or engaged in dishonesty on other

occasions is not admissible to impeach the witness's credibility.” Commw. v. Keehn, 251

A.3d 1224 (Pa. Super. Ct. 2021) (collecting decisions).

Whether extrinsic evidence is admissible to impeach a witness is dependent upon

whether the extrinsic evidence is relied upon the show the witness’ bias or interest,

pursuant to Rule 607, or the witness’ character for truthfulness, pursuant to Rule 608.

Commw. v. Kiger, No. 343 MDA 2019, 2019 WL 6465004, at *4 (Pa. Super. Ct. Dec. 2,

2019). The Superior Court of Pennsylvania in Kiger explained:

If the impeachment evidence is relevant as to bias, then it is not

collateral and subject to proof by extrinsic evidence. However, if the

evidence is not relevant to bias but instead merely truthfulness, then it is

collateral and not provable through extrinsic evidence. See Pa.R.E.

608(b)(1) (“[T]he character of a witness for truthfulness may not be attacked

or supported by cross-examination or extrinsic evidence concerning specific

instances of the witness' conduct[.]”); see also Commonwealth v. Guilford,

861 A.2d 365, 369 (Pa. Super. 2004) (noting a party may not impeach a

witness on collateral matters or matters that have no relationship to the case

at trial).

Id.

iii. The Manns Case

With respect to the Manns case, the plaintiff in Manns sued Logan, among other

Pittsburgh police officers and the City of Pittsburgh, pursuant to 42 U.S.C. § 1983, for

violating his constitutional rights. (Civ. A. No. 00-838, ECF No. 1.) The plaintiff in Manns

alleged that Logan and the other police officer defendants:

− interrogated the plaintiff for twelve and one-half hours (Civ. A. No. 00-838,

ECF No. 1 ¶ 16), but did not charge him with any crimes (id. ¶ 21);

− denied the plaintiff water, food, medication, access to the bathroom, and

use of a telephone (id. ¶ 17);

− denied the plaintiff medical attention when he complained about chest pain

(id. ¶ 18);

− held the plaintiff in their custody against the plaintiff’s will and despite

plaintiff’s request to leave (id. ¶ 19);

− screamed at the plaintiff and threatened him with arrest if he did not

cooperate (id. ¶ 20); and

− caused the plaintiff injuries, e.g., bladder infection, chest pain, severe shock

to his nervous system, and emotional distress (id. ¶ 24).

Pinson in his pending Rule 60(b) motion argues that the Manns material could

have been used at his state-court trials to impeach Logan to prove Logan’s “insidious

intent.” (ECF No. 40 at 8.) As the court understands it, Pinson argues that because Logan

(allegedly) committed unlawful interrogations in the past, Logan lied when he testified

about Pinson’s confession in Pinson’s state-court cases. To be clear, Pinson asserts that

he did not confess, and that Logan lied when he testified that Pinson confessed. Pinson

wants to impeach Logan and attack his character for truthfulness with extrinsic evidence

of past allegedly unlawful interrogations that did not result in confessions. Pinson does

not argue that the OMI report shows bias, interest, or any other permissible purpose for

impeachment, pursuant to Rule 607.5 Under those circumstances, the Manns material is

5 Even under Rule 607, the Manns material could not be used for impeachment

purposes. First, as discussed below, the Manns case resulted in a settlement, and,

therefore, there was never a finding of liability or guilt with respect to Logan. Allegations

made in a civil lawsuit in which there was never a finding of liability are generally

inadmissible as impeachment material in subsequent criminal cases. Dicks v. United

States, Civ. A. No. 09-2614, 2010 WL 11484356, *5 n.10, *6 (analyzing Federal Rule of

Evidence 608, which is similar—but not identical—to Pennsylvania Rule of Evidence

608, and holding that evidence of an internal affairs division investigation and civil

lawsuits in which there were never findings of misconduct by three government

witnesses was not admissible as impeachment material because “the probative value

[of the material] was minimal in comparison to the grave risk of unfair prejudice”) (citing

decisions).

Second, the material in issue would be subject to the Pennsylvania Rules of

Evidence with respect to relevancy. A review of the record in this case shows that

Pinson at trial and in his post-trial proceedings argued that he did not confess and that

Logan fabricated Pinson’s confession. See e.g., (ECF No. 9-34 at 20; ECF No. 9-35 at

2.) There are no allegations that the interrogations in Manns or the interrogations

reported in the OMI report resulted in Logan fabricating a confession. Under those

circumstances, even if the material in issue was arguably impeachment material under

Rule 607, the evidence would be inadmissible under Pennsylvania Rules of Evidence

401-403. With respect to Rule 401, the material—because it is distinguishable from

Pinson’s account of what happened in his cases, i.e., Logan fabricated Pinson’s

confession—does not have “any tendency to make a fact [of consequence in the action]

more or less probable than it would be without the evidence.” PA. R. EVID. 401. Under

those circumstances, the material in issue would not be admissible at trial. PA. R. EVID.

402. Even if the material in issue was relevant to Pinson’s cases, it would be

excludable under Pennsylvania Rule of Evidence 403 because “its probative value is

outweighed by the danger of…confusing the issues,…[or] misleading the jury.” PA. R.

EVID. 403. As discussed above, the facts underlying the allegations in Manns and the

OMI report are distinguishable from the facts alleged by Pinson, i.e., Logan lied about

fabricating Pinson’s confession, and all the alleged Brady material relied upon by

Pinson consists of allegations about collateral incidents, which courts have found to lack

consequential probative value. See United States v. Xi, No. CR 16-22-5, 2021 WL

3910749, at *6 (E.D. Pa. Sept. 1, 2021) (holding that dismissed allegations in a civil suit

were inadmissible in a criminal case under Federal Rule of Evidence 403) (citing

decisions); United States v. Lawes, 292 F.3d 123, 131 (2d Cir. 2002) (affirming the

decision of the district court that evidence that a civil complaint review board rejected

testimony from a police officer and issued the police officer a citation was inadmissible

to impeach the police officer at the defendant’s criminal trial under the Federal Rules of

Evidence because “the risk of distraction resulting from..[the defendant’s] intended

interrogation substantially outweighed any probative value of the evidence”). The

probative value of the Manns material and the OMI report—if any—is, therefore,

outweighed by the danger of confusing the issues and misleading the jury. Dicks, 2010

WL 11484356 at *5 n.10, *6.

Third, to the extent Pinson argues that he could have used the Manns material

and the OMI report to show that—because Logan conducted unlawful interrogations in

Manns and in the instances contained in the OMI report, he conducted an unlawful

interrogation of Pinson in the state-court cases—the evidence would be inadmissible for

that purpose pursuant to Pennsylvania Rule of Evidence 404(b), which provides:

“Evidence of any other crime, wrong, or act is not admissible to prove a person's

character in order to show that on a particular occasion the person acted in accordance

with the character.” P .R.E . 404(b).

governed by Rule 608(b)(1) because it is extrinsic evidence relied upon to impeach Logan

by attacking Logan’s character for truthfulness. The Manns material, therefore, would not

be admissible during the trials of Pinson’s state-court cases to attack Logan’s character

for truthfulness.

As discussed above, evidence may be considered Brady material if it is admissible,

is impeachment material, or could have led to the discovery of admissible evidence or

impeachment material. Pinson has not explained how the complaint and answer in Manns

would have led his counsel to admissible evidence or impeachment material; indeed, the

plaintiff and Logan, among other defendants, settled the Manns case and it was

dismissed with prejudice.6 Under those circumstances, Pinson could not satisfy his

burden to show there is a reasonable probability that if the prosecution disclosed the

Manns case to him during his state court trials, the outcome of those cases would have

been different.

6 The court takes judicial notice of “the authenticity and existence of

the docket entries, orders, and opinions publicly available” on a court’s docket. FCS Cap.

LLC v. Thomas, 579 F. Supp. 3d 635, 647 (E.D. Pa. 2022). The court takes judicial notice

of the following with respect to the Manns case:

− On June 27, 2002, the jury returned a verdict in favor of the plaintiff and against

Logan and other police officers. (Civ. A. No. 00-838, ECF No. 52.)

- Judgment was entered in favor of the plaintiff and against Logan and other police

officers in the amount of $25,000.00. (Civ. A. No. 00-838, ECF No. 53.)

- On July 9, 2002, the police officer-defendants filed a renewed motion for judgment

as a matter of law. (Civ. A. No. 00-838, ECF No. 54.)

- On November 26, 2002, the court granted the police officers’ motion, vacated the

judgment entered against them, and ordered a new trial. On the same date, the

plaintiff and the defendants, including Logan, entered into a stipulation that the

case be dismissed with prejudice. The stipulation was signed as an order of court.

(Civ. A. No. 00-838, ECF No. 63.)

iv. The OMI Report

The OMI report contained three summaries of reports by citizens accusing Logan

of misconduct. The first summary, dated January 7, 1988, provides:

Complainant alleged while the officers were arresting her son[,] things were

knocked off of her wall by the officers and they were verbally abusive to her.

(ECF No. 9-19 at 33.) The second summary, dated November 26, 1996, provides:

The complainant alleges that an arresting detective threatened and

intimidated her son while questioning him about an assault and burglary.

(Id.) The third summary, dated October 13, 1998, provides:

Complainant alleges that det. Choked [sic] him as he was interviewing him

about a homicide.

(Id.)

Pinson argues that the prosecution in his state-court cases violated Brady when it

failed to provide him the OMI report because he could have used the OMI report to

impeach Logan. As discussed above, Pinson argues the OMI report could be used to

impeach Logan to prove his “insidious intent[,]” i.e., to show that because Logan

(allegedly) committed unlawful interrogations in the past (that do not appear to have

resulted in confessions), Logan unlawfully interrogated Pinson and falsified a confession

by Pinson. Pinson testified that he did not confess,7 and, therefore, Logan’s testimony

about the confessions by Pinson and Boyer is false. (ECF No. 40 at 8.) Pinson does not

argue that the OMI report shows bias, interest, or any other permissible purpose for

impeachment, pursuant to Rule 607. Specific instances of conduct, i.e., the instances

reported in the OMI report, however, cannot be used to attack a witness’ credibility,

7 There was a suppression hearing held in the state trial court, and Pinson’s

confession was not suppressed. (ECF No. 9-34 at 33-38.) Pinson does not raise any

issue with respect to the suppression hearing in the pending Rule 60(b) motion.

pursuant to Pennsylvania Rule of Evidence 608. Pinson, therefore, could not have used

the three complaints about Logan’s alleged misconduct listed in the OMI report to

impeach Logan during his state-court trials.

Pinson in his objections requests an evidentiary hearing to show that the

prosecution knew about the OMI report, but did not provide it to him before his state-court

trials. Even if the prosecution knew about the OMI report, however, Pinson in his Rule

60(b) motion did not make any showing that the OMI report was admissible evidence,

impeachment material, or its production to Pinson before his state-court trials would have

led his counsel to find admissible evidence or impeachment material.8 Indeed, Pinson

was appointed counsel when he filed his third PCRA petition and raised the prosecution’s

failure to turn over the OMI report as a basis for relief. The appointed counsel, however,

filed a no merit letter and explained:

Without any verification through a fact finding investigation, the mere

existence of three unsubstantiated complaints against an officer in ten years

does not constitute material exculpatory evidence for the purpose of a

PCRA claim. Had the jury learned that, in ten years, two criminal defendants

had complained about improper interrogation techniques, without proof of

fact, there does not exist a reasonable probability that the outcome of the

entire case would have been different. If anything, the existence of such a

small number of unverified complaints would likely bolster the officer’s

credibility. Therefore, Petitioner cannot demonstrate that relevant and

material exculpatory evidence was withheld and the argument is without

merit.

(ECF No. 9-21, p.6.)

Under those circumstances and as discussed above, see supra note 5, Pinson did

not show that there is a reasonable probability that if the prosecution provided the OMI

8 The disclosure of the OMI report to Pinson during his state-court trials would not

have led to the discovery of material that could be used for impeachment purposes. See

supra note 5.

report to Pinson or his counsel that the outcome of the state-court trials would have been

different. For these same reasons, Pinson’s request for an evidentiary hearing, motion for

court order to unseal records and order the Commonwealth to turn over all internal affairs

records with respect to detective Dennis Logan (ECF No. 48), motion for subpoena duces

tecum (ECF No. 51) and will be denied because he has not made the requisite showing

that the OMI report will lead to the discovery of Brady material.

v. Conclusion with respect to the merits of the underlying claim factor

Based upon the foregoing, this Cox factor, i.e., the merits of the underlying claims,

weighs against a finding of extraordinary circumstances warranting Rule 60(b)(6) relief.

c. Principles of finality and comity factor

The court in Lamas explained:

Federal courts must “pay ample respect to states’ criminal judgments” and

should be particularly reluctant to disturb those judgments via Rule 60(b)

relief. Cox, 757 F.3d at 125. “In that vein, a district court reviewing a habeas

petitioner's 60(b)(6) motion may consider whether the conviction and initial

federal habeas proceeding were only recently completed or ended years

ago. Considerations of repose and finality become stronger the longer a

decision has been settled.” Id. (citing Gonzalez, 545 U.S. at 536-37).

Lamas, 2022 WL 4111865, at *11. The court in Lamas held that this factor weighed

against a finding of extraordinary circumstances under Rule 60(b)(6) because the

defendant’s “conviction and sentence became final nearly thirty years…[earlier], and his

habeas corpus petition had been dismissed for four years before Dennis was decided.”

Id.

Here, Pinson’s conviction and sentence became final at CP-02-CR-0013750-1999

on November 26, 2002, i.e., more than 20 years ago, and his conviction and sentence

became final at CP-02-CR-0014157-1999 on June 28, 2004, i.e., nearly 19 years ago.

This court dismissed his petition as untimely on November 24, 2014, (ECF No. 15) and

the Third Circuit Court of Appeals denied him a certificate of appealability on July 21,

2015 (ECF No. 19). The petition, therefore, had been dismissed as untimely for more than

six years when Bracey was decided. This factor, therefore, weighs in favor of denying

Pinson relief and against a finding of extraordinary circumstances in this case.

d. The petitioner's diligence in pursuing review factor

This factor weighs in favor of finding extraordinary circumstances exist in this case

because Pinson filed the pending Rule 60(b) motion raising Bracey on July 18, 2021, i.e.,

less than six months after Bracey was decided. As the court explained in Lamas, however,

a petitioner’s diligence alone is not a sufficient basis upon which to find extraordinary

circumstances warranting Rule 60(b)(6) relief. Lamas, 2022 WL 4111865, at *11.

e. The imperative of correcting a fundamentally unjust incarceration

As explained above, neither the OMI report nor the Manns case is Brady material.

As described below, Pinson did not make the requisite showing that he is actually

innocent of any of the crimes with which he was charged. Under those circumstances,

this case does not present a circumstance in which the court must correct a

fundamentally unjust incarceration because Pinson did not make the requisite showing

that his incarceration is—in fact—fundamentally unjust. This factor, therefore, does not

weigh in favor of granting Pinson relief.

f. Conclusion with respect to the Cox factors

The only Cox factor that weighs in favor of granting Pinson relief is his diligence in

filing the pending Rule 60(b) motion approximately six months after Bracey was decided.

The other factors weigh against granting the relief requested.

3. Conclusion with respect to intervening law as a basis to find

extraordinary relief

After considering Bracey and weighing the Cox factors, this court must conclude

that Pinson did not satisfy his burden to show he is entitled to Rule 60(b)(6) relief.

C. Actual Innocence

Pinson in his objections did not make any “specific written objections” to the

magistrate judge’s finding that Pinson failed to satisfy his burden to show that

extraordinary circumstances exist in this case because he is actually innocent of the

crimes of which he was convicted. Pinson relies upon an affidavit by Michael Javon

Snowden. Pinson in his Rule 60(b) motion argues:

The new evidence comes in the form of a notarized affidavit signed

by Michael Javon Snowden, who along with John Carter, was arrested in

control and possession of the vehicle used in the robbery for which

petitioner is currently convicted. Snowden admits (1) to being arrested in

the getaway car, (2) fabricating his identification of Petitioner as a culprit at

the assault(s) at CC199913750, and (3) that Detective Dennis Logan

promised Snowden that he would not have to testify against petitioner.

(ECF No. 40 at 6-7.) Snowden’s affidavit provides:

On September 15, 1999, myself along with my friend, John Carter

fled from a stolen gold Cadillac that was used in the robbery of the QuiCash

on Frankstown Avenue. Mr. Carter and I were later arrested by the

PITTSBURGH Police. While in custody, Carter told me that they were going

to lock him up for a long time and persuaded me to lie to officers and tell

them that Pierre Pinson and Ricky Boyer did the Zone 6 police station

shooting, so that we could go free. At first, I was hesitant until Detective

Dennis Logane [sic] assured me that when he was…done with Pinson and

Boyer, I would not have to testify. He then showed me a picture of each of

them and I positively identified them as the shooters.

I was forced to lie in order to help my friend John Carter. This has weighed

heavily on my conscience and I am now coming forward to help free two

innocent men.

(ECF No. 41 at 6.)

The magistrate judge in the R&R correctly found that Pinson did not satisfy his

burden to show that extraordinary circumstances exist warranting Rule 60(b)(6) relief

based upon actual innocence. Pinson in his “objections,” did not make any specific written

objections to those findings by the magistrate judge. Under those circumstances and as

described above, the court must review the R&R for plain error. Flagstar Bank, 2018 WL

4517447, at *1; Price, 2022 WL 4133341, at *1. This court, therefore, will review the R&R

with respect to this issue to determine whether the magistrate judge’s denial of the

pending Rule 60(b) issue with respect to Pinson’s attempt to show actual innocence was

plain error.9

As the magistrate judge explained in the R&R, a Rule 60(b)(6) petitioner may show

that extraordinary circumstances exist for relief if he or she can “make the required

credible showing of actual innocence to avail himself of the fundamental miscarriage of

justice exception” to AEDPA’s one-year statute of limitations. Satterfield v. Dist. Att'y

Philadelphia, 872 F.3d 152, 155 (3d Cir. 2017); (ECF No. 44 at 17.) The Third Circuit

Court of Appeals has explained that “the fundamental miscarriage-of-justice exception”

to AEDPA’s one-year statute of limitations is “grounded in the ‘equitable discretion’ of

habeas courts to see that federal constitutional errors do not result in the incarceration of

innocent persons.” Id. (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)).10 One

district court has explained:

9 Even if the court applied the de novo standard of review to the magistrate judge’s

recommendation that Pinson did not satisfy his burden to show that extraordinary

circumstances exist in this case because he is actually innocent of any crimes with which

he was charged, the court would adopt the R&R of the magistrate judge for the reasons

set forth in this opinion with respect to Pinson’s actual innocence claim.

10 The court of appeals in Satterfield further explained:

Underlying the fundamental-miscarriage-of-justice exception is a

“[s]ensitivity to the injustice of incarcerating an innocent individual,” and the

doctrine aims “to balance the societal interests in finality, comity, and

conservation of scarce judicial resources with the individual interest in

To satisfy the actual innocence standard…“a petitioner must [first] present

new, reliable evidence” and second, “show by a preponderance of the

evidence ‘that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.’ ” Reeves v. Fayette SCI,

897 F.3d 154, 160 (3d Cir. 2018) (quoting Houck v. Stickman, 625 F.3d 88,

93 (3d Cir. 2010) (further quotations omitted)). Stated differently, a petitioner

must establish that it is “more likely than not any reasonable juror would

have reasonable doubt.” Reese, 897 F.3d at 1601–6 (quoting House v. Bell,

547 U.S. 518, 538 (2006)).

Boretsky v. Davis, No. CV 09-771 (FLW), 2019 WL 5967999, at *3 (D.N.J. Nov. 13, 2019).

With respect to the first step of this assessment, i.e., whether the evidence relied

upon by the petitioner is “reliable and new,” the Third Circuit Court of Appeals has

explained: “As part of the reliability assessment of the first step, the court ‘may consider

how the timing of [the petitioner's] submission and the likely credibility of the [witnesses]

bear on the probable reliability of that evidence,’ as well as the circumstances

surrounding the evidence and any supporting corroboration.” Reeves v. Fayette SCI,

897 F.3d 154, 161 (3d Cir. 2018), as amended (July 25, 2018). “Typically, ‘new reliable

evidence’ consists of ‘exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence—that was not presented at trial.’” Jackson v. Wenerowicz,

justice that arises in the extraordinary case.” Id. at 1932. For this reason, “

‘[i]n appropriate cases,’ the principles of comity and finality that inform the

concepts of cause and prejudice ‘must yield to the imperative of correcting

a fundamentally unjust incarceration.’ ” Murray v. Carrier, 477 U.S. 478,

495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (quoting Engle v. Isaac, 456

U.S. 107, 135, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)) (alteration in the

original). The Supreme Court has underscored the importance of these

principles, explaining that “concern about the injustice that results from the

conviction of an innocent person has long been at the core of our criminal

justice system. That concern is reflected, for example, in the ‘fundamental

value determination of our society that it is far worse to convict an innocent

man than to let a guilty man go free.’ ” Schlup, 513 U.S. at 325, 115 S.Ct.

851 (quoting In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 25 L.Ed.2d

368 (1970) (Harlan, J., concurring)).

Satterfield, 872 F.3d at 162.

No. CV 14-2996, 2021 WL 2072230, at *3 (E.D. Pa. May 24, 2021), certificate of

appealability denied sub nom. Jackson v. Superintendent Phoenix SCI, No. 21-2179,

2021 WL 6201382 (3d Cir. Sept. 10, 2021) (quoting Schlup v. Delo, 513 U.S. 298, 324

(1995)). “Because such evidence is obviously unavailable in the vast majority of cases,

claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.

With respect to “recantation” evidence, the Third Circuit Court of Appeals has

explained:

“[C]ourts have historically viewed recantation testimony with great

suspicion.” Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir. 1988). As a

general matter, a recantation in the absence of corroborating evidence or

circumstances will probably fall short of the standard of reliability

contemplated by Schlup. But that does not mean that recantation evidence

is to be categorically rejected. On the contrary, “there are no categorical

limits on the types of evidence that can be offered” under Schlup. Hyman v.

Brown, 927 F.3d 639, 660 (2d Cir. 2019). Like any other form of evidence,

recantations should be analyzed on an individual and fact-specific basis,

taking into account the non-exclusive factors outlined in Reeves.

Howell v. Superintendent Albion SCI, 978 F.3d 54, 60 (3d Cir. 2020).

With respect to the second step of the analysis, i.e., whether it is more likely than

not that no reasonable juror would convict the petitioner, the Third Circuit Court of

Appeals has explained:

The court “must consider all the evidence, old and new, incriminating and

exculpatory, without regard to whether it would necessarily be admitted

under rules of admissibility that would govern at trial.” House, 547 U.S. at

538, 126 S. Ct. 2064 (internal quotation marks and citation omitted). “[M]ere

impeachment evidence is generally not sufficient to satisfy the [gateway

actual innocence] standard.” Munchinski v. Wilson, 694 F.3d 308, 338 (3d

Cir. 2012). However, new, reliable evidence that “undermine[s] the [trial]

evidence pointing to the identity of the [perpetrator] and the motive for the

[crime]” can suffice to show actual innocence. Goldblum v. Klem, 510 F.3d

204, 233 (3d Cir. 2007); see also Munchinski, 694 F.3d at 336-37

(explaining that actual innocence was demonstrated where new evidence

both showed that the crime could not have happened in the way the

Commonwealth presented at trial and provided an alternative theory that

was more appropriate and better fit the facts of the case). In weighing the

evidence, “[t]he court's function is not to make an independent factual

determination about what likely occurred, but rather to assess the likely

impact of the evidence on reasonable jurors”; the actual innocence standard

“does not require absolute certainty about the petitioner's guilt or

innocence.” House, 547 U.S. at 538, 126 S. Ct. 2064.

Reeves, 897 F.3d at 160-61.

With respect to the first step of the analysis, the magistrate judge in the R&R

explained that Pinson presented Snowden’s affidavit to the Superior Court of

Pennsylvania, which rejected his argument that the affidavit was “new.” The Superior

Court of Pennsylvania explained:

[C]ontrary to Pinson’s assertions, Pinson was aware of Snowden’s

involvement in this case since at least September 2003. See PCRA Court

Opinion, 11/8/07, at 2-3 (wherein the PCRA court, in addressing Pinson’s

second PCRA Petition, summarized that Pinson filed his second PCRA

Petition in September 2003, and raised his claim that all prior counsel were

ineffective for failing to call Snowden and Carter as witnesses). Moreover,

other than a bald assertion of Snowden’s unavailability for 16 years, Pinson

provides no explanation of the steps he took to secure the Snowden

Affidavit, nor any pitfalls or delays.

Commw. v. Pinson, No. 933 WDA 2020, 2021 WL 4932802, at *4 (Pa. Super. Ct. Oct. 22,

2021) (internal citations to decisions omitted). The magistrate judge, however, did not

conclude whether Snowden’s affidavit was “new or reliable” because, in any event,

Pinson did not satisfy his burden to show that it is more likely than not that if Snowden

testified at Pinson’s trials, no reasonable juror would have convicted him. The magistrate

judge explained:

Notwithstanding the question of whether this evidence qualifies as

“new” or “reliable”,…Snowden’s Affidavit does not persuade the Court that

no juror acting reasonably would have voted to convict Petitioner of the

shooting of the Zone 6 police station had Snowden testified that he lied to

the police about Petitioner’s involvement in the shooting. First, it is noted

that Snowden and Carter were not called to testify at Petitioner’s trial, and,

therefore, the information in Snowden’s Affidavit pertains only to the quality

of the information given to the police during their investigation and is not

considered a recantation of testimony given under oath at Petitioner’s trial.

Additionally, the Affidavit does not undermine the trial evidence that pointed

to Petitioner as the perpetrator of the shooting of the Zone 6 police station,

which the Superior Court characterized as “overwhelming” in Petitioner’s

direct appeal. Simply put, Petitioner has not made a sufficient showing of

his actual innocence such that Rule 60(b) relief should be granted.

In support of his assertion of innocence as it pertains to the charges

stemming from the robbery of the QwiCash store on August 31, 1999,

Petitioner seemingly argues that he could not have participated in the

robbery because only three people were seen fleeing the scene in the gold

Cadillac and all three were accounted for – Snowden and Carter were

arrested in the stolen gold Cadillac on September 15, 1999, and Boyer was

identified as one of the robbers by witnesses at the trial. However,

Petitioner’s logic is fundamentally flawed since Snowden and Carter’s arrest

in the stolen gold Cadillac on September 15, 1999, does not automatically

equate to their participation in the QwiCash robbery 15 days earlier, nor

does it establish Petitioner’s non-participation. Petitioner also appears to

argue that he is actually innocent of the QwiCash robbery because Leroy

Collington, who identified Petitioner out of a photo array on September 15,

1999, was a “failed jailhouse snitch who once fabricated testimony in a

homicide case.” He also claims that the identification was somehow suspect

because it was made on the same day that Snowden and Carter were

arrested and because the photo array shown to Collington did not contain

any identifying marks, nor did it contain Collington’s signature or initials,

which Petitioner claims “is procedure substantiating identification.” This

evidence similarly does not establish Petitioner’s innocence but instead

attacks Collington’s credibility and the procedures used to establish his

identification of Petitioner. See Sistrunk v. Rozum, 674 F.3d 181, 191 (3d

Cir. 2012) (“‘[A]ctual innocence’ means factual innocence, not mere legal

insufficiency.”) (quoting Bousley v. United States, 523 U.S. 614, 623

(1998)).

(ECF No. 44 at 19-20.)

The court agrees with the foregoing analysis by the magistrate judge that Pinson

did not satisfy his burden to show that—if Snowden testified at trial in accordance with his

affidavit—it is more likely than not that no reasonable juror would have convicted Pinson.

As described above, Pinson did not satisfy his burden to show that the alleged Brady

material was in fact Brady material that would have been admissible to impeach Logan’s

testimony or would have led to evidence that could have been used to impeach his

testimony. The jury heard evidence that both Boyer and Pinson confessed to the shooting

at the Zone 6 police station and circumstantial evidence, i.e., Pinson’s tattoos and jail

drawings, connected him to the Jeep used during the shootings. The jury also heard

evidence that Pinson confessed to attempting to rob the QwiCash store and robbing it on

August 31, 1999. Based upon the foregoing, even if Snowden’s testimony was presented

to the juries in Pinson’s state-court cases, it is not more likely than not that the jury would

have acquitted him. Ample evidence of record remained on which the juries could have

convicted him of the crimes with which he was charged and ultimately convicted.

The court adopts the R&R with respect to the magistrate judge’s conclusion and

analysis with respect to this issue. Pinson did not satisfy his burden to show that

extraordinary circumstances exist in this case that warrant Rule 60(b)(6) relief based upon

Pinson’s actual innocence.

D. Other motions pending before the court

As explained above, Pinson did not make the requisite showing that the OMI report

or the Manns case would lead to the discovery of Brady material. For those reasons,

Pinson’s request for an evidentiary hearing, motion for court order to unseal records and

order the Commonwealth to turn over all internal affairs records with respect to detective

Dennis Logan (ECF No. 48), and motion for subpoena duces tecum (ECF No. 51) will be

denied. Having received no objection to Pinson’s motion to withdraw the addendum (ECF

No. 50) the motion will be granted.

V. Conclusion

The court adopts the R&R, as modified and supplemented in this opinion, and

overrules Pinson’s objections to the R&R (ECF No. 47). Pinson’s pending Rule 60(b)(6)

(ECF No. 40) will be denied for the reasons set forth in the R&R, as modified and

supplemented by this opinion, and a certificate of appealability will not be issued.

The motion for court order to unseal records and order the Commonwealth to

turn over all internal affairs records with respect to detective Dennis Logan (ECF No.

48) and motion for subpoena duces tecum (ECF No. 51) will be denied. The motion to

withdraw addendum (ECF No. 49) will be granted.

An appropriate order will be entered.

BY THE COURT,

Dated: March 30, 2023 /s/ JOY FLOWERS CONTI

Joy Flowers Conti

Senior United States District Court Judge