MEMORANDUM OPINION AND ORDER ECF No. 42.
LISA PUPO LENIHAN, Chief Magistrate Judge.
This case is before the Court on a Motion for Relief from Judgment filed by Petitioner, Steven David Vogt, pursuant to Federal Rule of Civil Procedure 60(b) ("Rule 60(b)"). (ECF No. 42). This is the fourth Rule 60(b) motion Vogt has filed since his petition for writ of habeas corpus was dismissed as untimely on January 8, 2010. This motion is based on the United States Supreme Court's recent ruling in McQuiggen v. Perkins , 133 S.Ct. 1924 (2013), which held that actual innocence, if proved, serves as a gateway through which a habeas petitioner may pass whether the impediment is a procedural bar or expiration of the statute of limitations. Vogt claims that he has evidence which demonstrates that he is actually innocent of the crimes for which he was convicted and therefore the Court should vacate its Order of dismissal of his petition as untimely and evaluate his claims on their merits. For the reasons explained herein, Vogt's Rule 60(b) motion will be denied.
I. Relevant Facts and Procedural History
The facts, as set forth by the Superior Court, are as follows. On May 12, 1990, Francis Landry picked up Michael Sopo, Margaret Zawodniak and Steven Vogt in his blue Nissan and took them to his residence in Export, Pennsylvania where, except for Landry, they drank beer. A while later, Walter Cowfer came to Landry's residence. Cowfer, Sopo and Zawodniak then left and went to Arthur McClearn's apartment where they discussed Landry's murder. The parties returned to Landry's residence where they resumed drinking beer. At some point, Cowfer went to Landry's car where Landry was sleeping and asked to take the car to Cupec's Lake. He then ordered Landry to get in the back seat where he was surrounded by two of the others. They drove to the lake where they ordered Landry out of the car and pushed him over a hill where he fell a 30-40 foot drop into the lake. The others threw rocks into the water and rolled a huge boulder into the water hitting Landry. They then went back to the car, drank some more beer and left the area. The next day, Landry's drowned body was discovered by some area scuba divers. Several days later, State Trooper Strawbridge received a call from the Monroe County Sheriff's Department in Tavernier, Florida that Sopo, Vogt and Cowfer were in custody there and in possession of the registration plate of Landry's car and his wallet.
Subsequently, Vogt, Cowfer, Zawodniak, Sopo and McClearn were arrested and charged with Landry's murder. Sopo pled guilty to criminal conspiracy and McClearn pled guilty to third degree murder; both men testified on behalf of the Commonwealth during the trial of Vogt, Cowfer and Zawodniak, which commenced before a jury on January 29, 1991, in the Court of Common Pleas of Butler County, Pennsylvania. On January 31, 1991, Cowfer and Vogt were found guilty of Murder in the First Degree, Robbery, Theft, Kidnapping and Criminal Conspiracy; Zawodniak was acquitted of all charges. Following the denial of post-verdict motions, on June 17, 1991, Vogt was sentenced to life imprisonment.
Vogt filed a timely notice of appeal to the Superior Court of Pennsylvania, which was consolidated with the appeal of his co-defendant, Cowfer. Vogt filed his brief in the Superior Court on March 23, 1992, wherein he raised the following claims.
1. The evidence was insufficient to sustain the guilty verdicts as to the crimes of kidnapping, theft by unlawful taking and robbery.
2. The lower court erred by failing to grant Vogt's request for demurrer to reduce the first degree murder charge to third degree based on Vogt's intoxication.
3. A new trial was required due to the prejudicial effect of improper criminal evidence being submitted to the jury.
On October 21, 1991, the Superior Court affirmed the judgment of the lower court. Vogt filed a petition for allowance of appeal to the Supreme Court of Pennsylvania, which was denied by that court on June 25, 1993. He did not seek discretionary review in the United States Supreme Court.
On September 17, 1997, Vogt filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9542. Following appointment of counsel, an amended petition was filed asserting that Vogt was entitled to relief due to newly discovered exculpatory letters from convicted co-conspirator Cowfer. The first letter was written to Vogt's counsel and outlined Cowfer's purported testimony had he elected to testify in his own defense at the joint trial and stated that Vogt was innocent of Landry's murder. This letter was placed in Vogt's file without Vogt's knowledge. On March 1, 1997, Cowfer sent another letter to Vogt's counsel but mailed it to Vogt instead. After receipt of this letter, Vogt filed his PCRA petition. A PCRA hearing was scheduled for December 7, 1998; however, on that date, Vogt voluntarily withdrew his PCRA petition. The lower court specifically noted that although Cowfer had been transported to the Butler County Prison and was available for the hearing, Vogt still chose to voluntarily withdraw his PCRA petition. No appeal was filed.
On July 2, 2004, Vogt filed a second PCRA petition. Appointed counsel filed an amended petition on November 17, 2004, raising the following claims.
1. Newly discovered evidence that Commonwealth witness, Michael Sopo, entered a guilty plea to burglary pursuant to a plea agreement with the Commonwealth dated January 14, 1991 and that counsel was ineffective for failing to effectively use this evidence to impeach this key witness.
2. Newly discovered evidence in the form of statements by codefendant, Walter S. Cowfer, Jr. and that counsel was ineffective in failing ...