United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
30, 2007, Petitioner Steven Fausnaught was convicted of
conspiracy to distribute more than 500 grams of
methamphetamine and more than 100 kilograms of marijuana in
violation of 21 U.S.C. § 846; several counts of
distribution and possession with intent to distribute
controlled substances in violation of 21 U.S.C. §
841(a)(1); and illegal possession of a firearm while being a
user of controlled substances in violation of 18 U.S.C.
§ 922(g)(3). Doc. 401. On December 29, 2008, Petitioner
was sentenced to 292 months in prison. Doc. 527. Since then,
Petitioner has filed several motions to challenge his
conviction and/or sentence, including the instant motion
before the Court, seeking relief pursuant to Fed.R.Civ.P.
60(b) due to extraordinary circumstances. Doc. 749. For the
reasons stated below, Petitioner's motion will be denied.
case has been addressed numerous times by the district court
and the Third Circuit Court of Appeals over the past decade.
He was convicted on July 30, 2007 of several counts related
to conspiracy to distribute drugs, including, among other
things, conspiracy to distribute and possess with intent to
distribute in excess of 500 grams of methamphetamine and in
excess of 100 kilograms of marijuana. Doc. 401. On December
29, 2008, Petitioner was sentenced to 292 months in prison,
which was the bottom of his advisory sentencing guidelines
range. Doc. 527.
20, 2010, the Third Circuit affirmed Petitioner's
conviction as well as his sentence. United States v.
Fausnaught, 380 Fed.Appx. 198, 204 (3d Cir. 2010). On
May 19, 2017, Petitioner filed the instant motion pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure,
contending that there was "overwhelming evidence that
the sitting judge was suffering from dementia during [his]
Trial and Sentencing." Doc. 749 at 2. Petitioner's
sole evidentiary support for his argument is a news article
from April 1, 2017, which was published more than eight years
after his sentencing. The motion is now ripe for disposition.
60(b) allows a party to seek relief from a final judgment,
and request reopening of his case, under a limited set of
circumstances including fraud, mistake, and newly discovered
evidence." Gonzalez v. Crosby, 545 U.S. 524,
528, 125 S.Ct. 2641, 2645-46, 162 L.Ed.2d 480 (2005).
"The general purpose of Rule 60(b) is to strike a proper
balance between the conflicting principles that litigation
must be brought to an end and that justice must be
done." Coltec Indus., Inc. v. Hobgood, 280 F.3d
262, 271 (3d Cir. 2002) (alterations and internal quotations
marks omitted). "The movant under Rule 60(b) 'bears
a heavy burden, ' which requires 'more than a showing
of the potential significance of the new evidence.'"
Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991)
(quoting Plisco v. Union R. Co., 379 F.2d 15, 17 (3d
Cir. 1967), cert, denied, 389 U.S. 1014, 88 S.Ct.
590, 19 L.Ed.2d 660(1967)).
60(b) contains several provisions under which relief may be
granted. Of the provisions, two may be relevant in this case:
subsection (b)(2), which provides relief for "newly
discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial
under Rule 59(b)"; and subsection (b)(6), which is a
catch-all provision that permits reopening of the case for
"any other reason that justifies relief."
Fed.R.Civ.P. 60(b)(2) and (b)(6). It is unclear which
provision forms the basis of the Petitioner's motion.
However, because a Rule 60(b) motion must be made "no
more than a year after the entry of the judgment" in the
case of the first three subsections, see Fed. R.
Civ. P. 60(c), a motion pursuant to Rule 60(b)(2) would be
untimely. Because pro se defendants' motions
should be construed liberally "with an eye toward their
substance rather than their form, " United States v.
Delgado, 363 Fed.Appx. 853, 855 (3d Cir. 2010) (internal
citation omitted), the Court will construe the motion as
proceeding under Rule 60(b)(6), the catch-all provision. Rule
60(b)(6) carries a high burden; it "provides for
extraordinary relief and may only be invoked upon a showing
of exceptional circumstances." Coltec Indus.,
280 F.3d at 273 (quoting In re Fine Paper Antitrust
Litig., 840 F.2d 188 (3d Cir. 1988).
stated above, Petitioner's motion relies on an April 1,
2017 news article concerning the presiding judge over his
trial and sentencing, Judge Edwin Kosik. The article detailed
an April 2017 incident when Judge Kosik was hospitalized
after being found in a wooded area outside Scranton due to
memory loss. Doc. 749 at 2. Petitioner claims that Judge
Kosik was "found sleeping on the ground in a park,
within one hundred yards of his car, " and he further
claims that Judge Kosik "is presumably suffering from
severe mental deterioration, dementia. Judge Kosik is, in
fact, in the latter stages of dementia...Judge Kosik is at
what is often called 'the dignity stage' of dementia
because to salvage what little dignity he can is the best for
which he can hope." Id. at 4. However, none of
these details are found in the short news clipping attached
to the motion; it is therefore unclear upon which sources (if
any) Petitioner relies for these claims. See Doc.
749 at 11.
then surmises, without factual support, that Judge Kosik had
been suffering from memory impairment more than eight years
prior to the publication of the article, i.e. during
Petitioner's sentencing hearing, and that as a result,
"Judge Kosik was induced by Prosecutor Sempa's
counter-factual assertions that a crucial witness,
[coconspirator] Mr. Moore, had incriminated and implicated
[Petitioner]...[when i]n fact, Mr. Moore had plainly
exonerated [Petitioner], on the record in courtroom testimony
before a jury, not just once, but twice." Id.
at 4. Petitioner then proceeds to make the same argument that
appears in his pending § 2255 motion, i.e. that he
"played no role whatsoever in [co-conspirators] Moore
and Sechler's methamphetamine sales" and that he is
therefore entitled to a minor role reduction in his sentence.
In support, he cites the same portion of testimony by Moore
that appears in his second § 2255 motion:
Q: You never mentioned that Steve Fausnaught sold you
methamphetamine, is that correct?
Q: Because he didn't, ...