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Thompson v. Varano

United States District Court, E.D. Pennsylvania

December 22, 2016

MR. BRIAN K. THOMPSON
v.
MR. DAVID A. VARANO, THE DISTRICT ATTORNEY OF THE COUNTY OF CHESTER and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

          MEMORANDUM OPINION

          TIMOTHY J. SAVAGE, J.

         More 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.

         Although 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.[1] Even if it were not an impermissible second or successive petition, the motion is meritless. Therefore, we shall deny his motion.

         Procedural History

         State Court Proceedings

         On 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.[2]One week later, he was sentenced to life in prison.[3]

         At 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. Id.

         On 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.

         On 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.

         Federal Court Proceedings

         On 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.[4] 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 petition.[5]

         On June 22, 2015, almost three years later, Thompson filed an application with the Third Circuit for leave to file a successive habeas petition.[6] 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.[7] 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 innocence.”[8]

         On 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.[9] 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.”[10] 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.[11] 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.[12] 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).[13] Finally, Thompson urges us to entertain an independent action for fraud under Rule 60(d).[14]

         Analysis

         Rules 60(b) and 60(d)

         Federal 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.

         Rule 60 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 ...


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