United States District Court, E.D. Pennsylvania
JEROME J. GIBSON, Petitioner,
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
F. Leeson, Jr., United States District Judge.
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.
now brings a motion under Federal Rule of Civil Procedure
60(b) 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.
procedural history of this case is complex, and the Court
outlines only the information necessary to place the instant
motion in context.
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).
next sought relief pursuant to Pennsylvania's Post
Conviction Act (“PCRA”), 42 Pa. Const. Stat.
§ 9541, et seq. 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.
2010, Gibson filed a § 2254 petition for habeas relief
in federal court. 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).
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).
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).
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.
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.
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.
STANDARD OF REVIEW AND APPLICABLE LAW
Federal Rule of Civil Procedure 60
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