United States District Court, E.D. Pennsylvania
MR. BRIAN K. THOMPSON
MR. DAVID A. VARANO, THE DISTRICT ATTORNEY OF THE COUNTY OF CHESTER and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
TIMOTHY J. SAVAGE, J.
than three and a half years after his habeas petition was
denied, petitioner Brian K. Thompson, a state prisoner, filed
a pro se motion under Federal Rules of Civil
Procedure 60(b) and 60(d). Despite the Third Circuit's
ruling that his claim that the prosecutor had not disclosed
that a Commonwealth witness was facing criminal charges is
“neither new nor demonstrates Petitioner's
innocence, ” Thompson still insists that prosecutors
committed fraud in federal habeas proceedings. Specifically,
he contends that, in responding to his petition, they
allegedly misrepresented that the prosecutor had withheld the
witness's criminal history from the defense. The
respondents characterize Thompson's motion as another
successive habeas petition.
Thompson's Rule 60 motion, on its face, appears to
challenge the integrity of the federal habeas process, it
actually seeks to relitigate his Brady claims.
Consequently, it is a successive habeas petition under
AEDPA. Even if it were not an impermissible
second or successive petition, the motion is meritless.
Therefore, we shall deny his motion.
March 9, 2006, Thompson was convicted of first-degree murder
and possessing an instrument of the crime in the Court of
Common Pleas, Chester County.One week later, he was sentenced
to life in prison.
trial, Thompson offered several possible defenses. He
alternatively contended that he had accidentally tripped or
otherwise accidentally triggered the gun, had accidentally
fired the gun while playing with or cleaning it, and/or had
diminished capacity from voluntary intoxication as a result
of drinking beer and smoking marijuana with Richard Mack on
the day of the murder. Commonwealth v. Thompson, No.
743 EDA 2006, slip op. at 2-3 (Pa. Super. Aug. 24, 2007)
(quoting trial court opinion). Undermining one of
Thompson's defenses, Mack testified that Thompson
appeared sober. Id. at 14. Seeking to impeach Mack,
Thompson's counsel insinuated that Mack had violated his
parole by drinking on the day of the murder. Id.
Mack denied he was on parole. Id. at 14-15.
Thompson's counsel then produced proof that Mack was on
parole on the day of the murder. Id. at 15. The
prosecutor then stipulated that Mack was on parole.
Id. at 16. The trial court instructed the jury to
consider, in assessing Mack's credibility as a witness,
the inconsistency between his testimony denying that he was
on parole at the time and the fact that he was on parole.
direct appeal to the Superior Court, Thompson argued that the
prosecutor had committed a Brady violation when he
failed to disclose evidence that Mack was on parole at the
time of the murder. Id. at 17. The Superior Court
rejected Thompson's Brady claim, concluding that
Thompson suffered no prejudice because the prosecutor
stipulated that Mack was on parole and the jury was
instructed to consider Mack's contrary testimony in
assessing his credibility. Id. The Superior Court
affirmed Thompson's conviction. Id. at 22.
January 27, 2009, Thompson filed a pro se petition
under the Pennsylvania Post Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. § 9541 et
seq. Commonwealth v. Thompson, No. 2562 EDA 2010, slip
op. at 2 (Pa. Super. Aug. 23, 2011). After two hearings, the
PCRA court denied the petition on August 24, 2010.
Id. The Superior Court affirmed. Id.
March 14, 2012, Thompson filed a pro se federal
habeas petition. Among his grounds for relief was a claim
that the District Attorney committed a Brady
violation by failing to disclose evidence of Mack's
parolee status. Agreeing with the magistrate judge's
finding that the prosecution had not withheld evidence of
Mack's parolee status from Thompson, we adopted her
conclusion that there had been no Brady violation.
On August 28, 2012, we dismissed Thompson's
22, 2015, almost three years later, Thompson filed an
application with the Third Circuit for leave to file a
successive habeas petition. Thompson based his application on
new evidence discovered in a July 26, 2012 Chester County
Daily Local newspaper article that revealed Mack was
also facing open pending charges in 2006, the year he
testified at Thompson's trial. On July 21, 2015, the Third
Circuit denied Thompson leave to file a successive habeas
petition, noting “[i]n particular, the alleged evidence
that a witness who testified against Petitioner was facing
criminal charges at the time of Petitioner's trial is
neither new nor demonstrates Petitioner's
February 29, 2016, Thompson filed his motion under Federal
Rules of Civil Procedure 60(b) and 60(d) for relief from the
order dismissing his initial federal habeas
petition. He argues that, in responding to his
habeas petition, the District Attorney misrepresented facts
when he stated that “there is no evidence whatsoever
indicating that the prosecuting attorney ever withheld any
information regarding Mr. Mack's criminal
history.” Thompson contends that the July 2012
Chester County Daily Local article proves the
response was untrue. So, he argues, the misleading response
affected the integrity of his federal habeas
proceedings. First, Thompson argues that the District
Attorney's representation perpetrated “fraud,
misrepresentations and misconduct” on the federal
court, under Rule 60(b)(3), and prevented him from fully and
fairly presenting his case. Thompson, assuming we were
deceived by the District Attorney's representation, asks
us to grant relief from his federal habeas proceedings in the
interest of justice under Rule 60(b)(6). Finally,
Thompson urges us to entertain an independent action for
fraud under Rule 60(d).
60(b) and 60(d)
Rule of Civil Procedure 60(b) allows a district court to
grant a petitioner relief from judgment based on several
grounds. Thompson relies on two grounds. He asserts fraud,
misconduct, or misrepresentation by an opposing party, under
Rule 60(b)(3); and “any other reason that justifies
relief, ” under Rule 60(b)(6), the catch-all provision.
may not be used to relitigate the movant's underlying
conviction after his habeas petition attacking the same
conviction has been denied. Like a Rule 60(b) motion, one
brought under Rule 60(d) may not be used as a substitute for
appeal. Morris v. Horn, 187 F.3d 333, 343 (3d ...