United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE United States District Court.
the court for disposition is Defendant Joseph P.
Donahue's motion styled as a “Motion for Relief
from Final Judgment Pursuant to Fed.R.Civ.P. 60(b)(3) and
60(d)(3)”. The parties have briefed their respective
positions, and the matter is ripe for disposition.
January 6, 2010, the United States of America (hereinafter
“government”) filed a sixteen-count Second
Superceding Indictment against Defendant Joseph P. Donahue
(hereinafter “defendant”). The indictment
contains charges of bank fraud, 18 U.S.C. § 1344; access
device fraud (credit card fraud), 18 U.S.C. §§
1029(a)(2), 1029(a)(2), 1029(b)(1) and 1029(b)(2); false
statements to the government, 18 U.S.C. § 1001; and
money laundering, 18 U.S.C. § 1956(a)(1)(A). Basically,
the government charged that the defendant solicited people to
join in business ventures with him and then used their
personal information to obtain credit cards for his own
ten-day trial that commenced on February 17, 2010, a jury
found the defendant guilty on all counts. After the trial,
the defendant filed a motion for judgment of acquittal that
raised various issues. The court denied the motion on
September 13, 2010. (Doc. 250). The court scheduled
sentencing for September 15, 2010. (Doc. 243). On the eve of
sentencing, however, the court granted leave for the
defendant to file supplemental post-trial motions based upon
newly discovered evidence. On October 1, 2010, defendant
filed a second supplemental motion for judgment of acquittal
and new trial, raising one more issue. The court held a
hearing on the motions on October 4, 2010. The court issued a
memorandum and order on October 22, 2010 denying the
defendant's supplemental motion and second supplemental
motion for new trial and judgment of acquittal. (Doc. 270).
defendant then appealed to the Third Circuit Court of
Appeals. The Third Circuit affirmed the judgment of
conviction on January 30, 2012. United States v.
Donahue, 460 F. App'x 141 (3d Cir. 2012). The
defendant then filed a petition for certiorari with the
United States Supreme Court. The Court denied the petition on
October 1, 2012. Donahue v. U.S., 133 S.Ct. 184
on September 26, 2013, defendant filed a motion pursuant to
28 U.S.C. § 2255. (Doc. 314). He filed a supplement to
the motion on January 14, 2014. (Doc. 322). Issues raised in
the motion included: whether the government improperly failed
to disclose exculpatory evidence regarding the actions of the
FBI agent who led the criminal investigation of the
defendant; whether the government engaged in
prosecutorial misconduct by, inter alia, failing to
disclose properly the information regarding an FBI's
agent's alleged perjury; whether trial counsel acted
ineffectively by failing to pursue the perjury issue
zealously enough; whether trial counsel was ineffective for
failing to interview certain witnesses; and whether the court
correctly sentenced defendant.
the parties fully briefed the issues, we denied the motion on
June 23, 2014. (Doc. 337). Defendant then sought a
certificate of appealability from the Third Circuit Court of
Appeals so that he could appeal this court's decision.
The Third Circuit Court of Appeals denied a certificate of
appealability on August 26, 2014. (Doc. 346). The appeals
court found that defendant “has not made a substantial
showing of the denial of a constitutional right nor shown
that reasonable jurists would find the correctness of the
procedural aspects of the District Court's decision
also filed a petition for a writ of mandamus with the Third
Circuit Court of Appeals seeking to have this court's
order on his section 2255 motion vacated and to disqualify
the district court judge. The Third Circuit denied the
petition. Defendant then filed another mandamus petition with
the Third Circuit Court of Appeals raising the same issues as
the first petition. The Third Circuit denied this petition on
October 15, 2014. In re Donahue, 580 F. App'x
136 (3d Cir. 2014).
has now filed yet another motion attacking our decision on
the section 2255 motion. The motion is fashioned as a
“Motion for Relief from Final Judgment Pursuant to Rule
60(b)(3) and 60(d)(3).” The matter has been fully
briefed, bringing the case to its present posture.
noted above, the defendant has filed a document which he has
labeled as a motion for relief from final judgment on his
section 2255 motion. The law provides that: “A §
2255 motion is the presumptive means by which a federal
prisoner can challenge the validity of his conviction or
sentence[.]” United States v. Hight, 304 F.
App'x 31, 32 (3d Cir. 2008). Defendant, however, has
filed a Rule 60 motion, instead of a second 2255 motion.
Defendants sometimes utilize a Rule 60 motion to circumvent
the requirements of filing a second section 2255 motion
including the stringent gatekeeping requirements imposed by
the Antiterrorism and Effective Death Penalty Act of 1996
someone in the defendant's position files a Rule 60
motion the court must first determine, using criteria set
forth by the United States Supreme Court, whether the motion
is a true Rule 60(b) motion or whether it is rather a second
or successive habeas corpus petition. Ferguson v. United
States, Civ. No. 11-0154, 2016 WL 1578777 *4 (W.D. Pa.
Apr. 20, 2016). We lack jurisdiction over the motion if it is
an unauthorized second or successive section 2255 motion.
See 28 U.S.C. § 2255(h); Lugo v.
Zickefoose, 427 F. App'x 89, 92 (3d Cir. 2011).
United States Supreme Court has explained the circumstances
where a Rule 60(b) motion should be construed as a second or
successive section 2255 motion in Gonzalez v.
Crosby, 545 U.S. 524 (2005). Gonzalez holds
that we must construe a Rule 60 motion as a habeas
application if it raises a new claim, seeks to present newly
discovered evidence in support of a previously ...