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Gibson v. Beard

United States District Court, E.D. Pennsylvania

December 18, 2019

JEROME J. GIBSON, Petitioner,
v.
JEFFREY BEARD, LOUIS FOLINO, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, THOMAS MCGINLEY, and THE DISTRICT ATTORNEY FOR BUCKS COUNTY, Respondents.

          OPINION FEDERAL RULE OF CIVIL PROCEDURE 60(B) MOTION, ECF NO. 98-DISMISSED

          Joseph F. Leeson, Jr., United States District Judge.

         Petitioner Jerome Gibson is serving a life sentence of imprisonment for his 1995 conviction in state court of first-degree murder. Gibson's conviction was subsequently affirmed on direct appeal, and in 2010 he filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. In his § 2254 petition, Gibson sought habeas relief (1) under Brady v. Maryland for the alleged suppression of evidence with respect to ten witnesses at his trial, (2) for ineffective assistance of counsel based on at least nine different grounds, as well as (3) upon a theory of cumulative error. That petition was denied on the merits by the United States District Court for the Eastern District of Pennsylvania in a 2016 decision, which was subsequently affirmed by the Third Circuit Court of Appeals.

         Gibson now brings a motion under Federal Rule of Civil Procedure 60(b)[1] for relief from his 1995 conviction based on “fraud” having been allegedly committed on both the state trial court and the federal court adjudicating his habeas petition. Rule 60(b) Mot., ECF No. 98; Reply, ECF No. 103. The Commonwealth of Pennsylvania opposes the motion, arguing that it is both untimely under Rule 60 as well as an unauthorized second or successive habeas petition. Opp'n., ECF No. 102. The Court agrees. Because Gibson's Rule 60(b) motion is an unauthorized second or successive habeas petition, and because it is also untimely under Rule 60(c), it is dismissed.

         I. BACKGROUND

         The procedural history of this case is complex, and the Court outlines only the information necessary to place the instant motion in context.

         On March 13, 1995, Gibson was found guilty of first-degree murder, among other offenses, by a Bucks County, Pennsylvania jury for the 1994 murder and robbery of Robert Berger. At the penalty phase of the proceedings, the jury determined that Gibson should be sentenced to death. The Pennsylvania Supreme Court affirmed Gibson's conviction and sentence in 1998, Com. v. Gibson, 553 Pa. 648 (1998), and the United States Supreme Court denied certiorari in 1999, Gibson v. Pennsylvania, 528 U.S. 852 (1999).

         Gibson next sought relief pursuant to Pennsylvania's Post Conviction Act (“PCRA”), 42 Pa. Const. Stat. § 9541, et seq.[2] The PCRA court denied relief as to Gibson's guilt, but determined that Gibson met the criteria for mental retardation set forth in Atkins v. Virginia, 536 U.S. 304 (2002). The Pennsylvania Supreme Court subsequently affirmed the finding of mental retardation, modified Gibson's sentence from one of death to one of life imprisonment, and remanded the case back to the Superior Court for appellate review of the trial court's guilt-phase rulings. Com. v. Gibson, 592 Pa. 411 (2007). The Superior Court affirmed the trial court's denial of guilt-phase PCRA relief, Com. v. Gibson, Nos. 1778 & 1779 EDA 2007, Slip Op. 1-35, 959 A.2d 962 (Pa. Super. Ct. July 8, 2008), and the Pennsylvania Supreme Court denied allowance of appeal.

         In 2010, Gibson filed a § 2254 petition for habeas relief in federal court.[3] ECF No. 1. In addition to asserting claims for ineffective assistance of counsel and cumulative error, Gibson's petition alleged ten bases for Brady violations. Id. In 2011, Gibson was granted leave to supplement his habeas petition based on the discovery of additional material potentially relevant to his Brady claims. ECF No. 46, 49. The federal proceeding was then stayed as Gibson pursued a successive PCRA petition to exhaust claims based on the newly discovered evidence. ECF No. 62. In an Order entered January 21, 2014, the PCRA court determined that Gibson's successive PCRA petition was time-barred and dismissed it for lack of jurisdiction. The Superior Court subsequently affirmed the trial court's determination that Gibson's second PCRA petition was time-barred and that the court lacked jurisdiction to review the petition as a result. Com. v. Gibson, 584 EDA 2014, Slip. Op. 1-23 (Pa. Super. Ct. Jan. 16, 2015).

         The proceedings then returned to federal court. On July 28, 2015, Magistrate Judge Wells issued a Report and Recommendation in which she found that all claims asserted in same purpose that exist when this subchapter takes effect, including habeas corpus and coram Gibson's § 2254 petition were either time-barred, procedurally defaulted, or lacked merit, and recommended the claims be dismissed or denied accordingly. ECF No. 76; Gibson v. Beard, No. CV 10-445, 2015 WL 10381753, at *1 (E.D. Pa. July 28, 2015). Gibson filed objections to the Report and Recommendation. ECF No. 82. In an Opinion dated February 29, 2016, District Judge Dalzell overruled Gibson's objections, approved and adopted Magistrate Judge Wells' Report and Recommendation, and denied and dismissed Gibson's petition without holding an evidentiary hearing or issuing a Certificate of Appealability. ECF No. 89; Gibson v. Beard, 165 F.Supp.3d 286 (E.D. Pa. 2016).

         Gibson subsequently filed a Notice of Appeal and application for a Certificate of Appealability, which was granted by the Third Circuit Court of Appeals. After briefing and argument, in a decision issued December 22, 2017, the Third Circuit affirmed the district court's denial and dismissal of the petition, concluding (1) the failure to disclose certain evidence pertaining to three trial witnesses did not constitute Brady violations; (2) Gibson was not prejudiced by evidence that was suppressed; (3) Gibson failed to establish that he was prejudiced by his trial counsel's conduct and therefore could not establish a claim of ineffective assistance of counsel; and (4) Gibson's claim under the “cumulative error” doctrine lacked merit. Gibson v. Sec'y Pennsylvania Dep't of Corr., 718 Fed.Appx. 126 (3d Cir. 2017). The Supreme Court subsequently denied Gibson's petition for a writ of certiorari. Gibson v. Wetzel, 139 S.Ct. 242, 243 (2018).

         On August 12, 2019, Gibson filed the instant motion pursuant to Federal Rule of Civil Procedure 60(b), after which the case was transferred to the Undersigned. ECF No. 98, 101. Gibson's motion is titled “PETITION FOR REVIEW UNDER FEDERAL RULE OF CIVIL PROEDURE 60(B)(3).” Rule 60(b) Mot. at 1. The first paragraph of Gibson's motion states as follows:

Petitioner hereby asseverates the Prosecutor, C. Theodore Fritch, Jr., representing the Commonwealth of Pennsylvania, Bucks County, and the Federal Prosecutor in [his] related habeas corpus petition (docket # 10-cv-0445), Karen A. Diaz, Esq., committed [ ] fraud in the State court proceedings and on this Federal District Court by presenting perpetual [intrinsic] fraud on the court in reference to the [“N”]otes of [Detective Randy C. Morris], the false testimony of eyewitness, Michael Segal, and witness Glenn Pollard, and ineffective assistance of trial counsel(s) and appellate counsel surrounding the same.[4]

Id. The motion then proceeds to elaborate on these and other challenges to Gibson's state court conviction, as well as attack representations made by counsel for Bucks County, Karen A. Diaz, Esq., in the County's opposition to Gibson's now-dismissed habeas petition.

         Attorney Diaz filed opposition to the instant motion on behalf of Bucks County, arguing that the motion is both untimely under Rule 60, as well as an unauthorized second or successive habeas petition. Opp'n. Gibson filed a reply memorandum titled “PETITIONER'S RESPONSE TO OPPOSING ANSWER IN REFERENCE TO PETITIONER'S MOTION FOR RELIF OF HABEAS JUDGMENT UNDER F.R.CIV.P. 60(B)(3) & (6).” Reply at 1, ECF. 103. In this reply, Gibson “concede[s] [that] this is an untimely Motion under F.R.Civ.P. 60(C), ” however, he states that “this concession does not preclude review of Petitioner's Motion in light of the extraordinary circumstances of the case.” Id.

         II. STANDARD OF REVIEW AND APPLICABLE LAW

         A. Federal Rule of Civil Procedure 60

         Federal Rule of Civil Procedure 60(b) provides as follows:

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or ...

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