United States District Court, W.D. Pennsylvania
David Vogt BN-3436 SCI Fayette Counsel for Respondent.
PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE.
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. 49). This is the fifth Rule 60(b) motion (ECF Nos.
31, 37, 40, 42) Vogt has filed since his Petition for Writ of
Habeas Corpus was dismissed as untimely on January 8, 2010,
(ECF No. 24). In this motion he argues that he is entitled to
relief based on the recent United States Third Circuit case
Dennis v. Secretary, Pennsylvania Department of
Corrections, 834 F.3d 263 (3d Cir. 2016) (en banc). For
the following reasons, his motion will be denied.
Relevant Facts and Procedural
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.
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.
Federal Habeas Corpus Proceedings
Petition for Writ of Habeas Corpus was dated April 14, 2008
and docketed on April 16, 2008. In his Petition, he raised
the following claims.
1. Prosecutorial misconduct in illegally
suppression/withholding [sic] Brady material; the identity of
male party to confession.
2. Prosecutorial misconduct in illegally redacting trial
testimony of Com. witnesses Deiseroth and Mayhugh.
3. Prosecutorial misconduct in the knowing use of false
evidence to convict Petitioner.
4. Prosecutions [sic] knowing use of false evidence when it
elicited only some of the details of witness Sopo's plea
January 8, 2010, this Court dismissed the Petition as
untimely, finding that it was not filed within the
AEDPA's one-year statutory limitations period,
see 28 U.S.C. § 2244(d), for any of his claims.
Vogt then appealed and the Third Circuit Court of Appeals
denied his request for a certificate of appealability on May
filed his first Rule 60(b) motion on September 24, 2010. In
his motion, he argued that the Court's order of dismissal
should be vacated because he had new evidence that proved his
innocence; specifically, an affidavit from Margaret Zawodniak
dated August 27, 2010, stating that Vogt severely injured his
ankle from a drunken fall earlier that night and was too
intoxicated to have played a part in Landry's death. She
claimed that on the night Landry was killed Vogt was with her
in the car or just right outside of it throwing up. Vogt also
had an affidavit from Tricia Holfelder, his assistant, who
stated that she had spoken to Michael Sopo, and, although he
was too reluctant to provide a sworn statement, he
represented to her that Vogt had nothing to do with
Landry's death. Sopo also presumably relayed to Holfelder
that his testimony was coerced. Finally, Vogt provided the
Court with the March 1997 letter written by Cowfer, which
stated that Vogt was innocent. Vogt's Rule 60(b) motion
was denied because he had not first exhausted his newly
discovered evidence claim in the state courts. His request
for reconsideration of that order was also denied. He then
filed an appeal to the Third Circuit, ...