IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES MARIO PRIDGEN,

Petitioner,

v.

SHANNON, 

THE DISTRICT ATTORNEY OF THE 

COUNTY OF LANCASTER, and 

THE ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA,

Respondents.

CIVIL ACTION

NO. 00-4561

DuBois, J. May 12, 2014

M E M O R A N D U M

I. INTRODUCTION

Petitioner, James Mario Pridgen, is currently serving a life sentence in Pennsylvania for 

his state conviction on a first-degree murder charge. Presently before the Court is Petitioner’s 

60(b) Motion Alleging a Defect in the Integrity of the Federal Habeas Corpus Proceedings

(“60(b) Motion”). Petitioner argues that his Petition for Writ of Habeas Corpus Pursuant to 

§ 2254, filed on September 8, 2000, should not have been dismissed as untimely because, under 

McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), his claims of actual innocence entitle him to an 

exception to the limitations period.

Also before the Court are three motions filed by petitioner, all of which relate to proving 

the allegations set forth in his 60(b) Motion: (1) Motion for Expert Witness Funds and Exparte

[sic] Hearing, (2) Motion for State Court Record, and (3) Motion for State Court Trial 

Transcripts and Preliminary Hearing. For the reasons set forth below, all of petitioner’s Motions 

are denied. 

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II. BACKGROUND

The facts of this case have been previously set forth in the opinions of this Court. See,

e.g., Pridgen v. Shannon, 2002 WL 31122131 (E.D. Pa. Sept. 26, 2002). Accordingly, the Court 

recounts in this Memorandum only those facts necessary to resolve the issues presently before 

the Court.

On May 23, 1996, following his conviction and sentencing for first-degree murder, 

petitioner filed his first application for post-conviction relief under the Pennsylvania Post 

Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541, et seq. That PCRA petition was denied 

by the Court of Common Pleas, the denial was affirmed by the Superior Court, and on January 

12, 1999, the Pennsylvania Supreme Court denied a petition for allowance of appeal. 

While the PCRA appeal was pending in state court, on September 12, 1997, petitioner 

filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 in federal court. By Order 

dated December 10, 1997, this Court approved and adopted the Report and Recommendation of 

United States Magistrate Judge Charles Smith and dismissed the Petition without prejudice on 

the ground that petitioner had failed to exhaust his state-court remedies. 

Petitioner filed a second PCRA petition on February 22, 1999, which the state trial court

dismissed as barred by the applicable one-year state statute of limitations. Petitioner appealed 

this decision to the Superior Court, which affirmed the dismissal of the petition as untimely. On 

June 20, 2000, the Pennsylvania Supreme Court denied a petition for allowance of appeal. 

On September 8, 2000, petitioner filed a second Petition for Writ of Habeas Corpus under 

28 U.S.C. § 2254 in this Court. By Report and Recommendation (“R&R”), Magistrate Judge 

Charles Smith recommended that the § 2254 Petition be dismissed as untimely under § 2244(d) 

of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which provides a 

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one-year statute of limitations period following direct review in the state courts. 28 U.S.C. 

§ 2244. Magistrate Judge Smith concluded that equitable tolling of the statute of limitations was 

inappropriate, noting that petitioner stated “no reason why he should not be bound by the statute 

of limitations.” R&R, at 9 n.9 (Doc. No. 10, Nov. 28, 2000). 

By Order dated December 13, 2000, this Court approved and adopted the Report and 

Recommendation of Magistrate Judge Smith, and denied and dismissed the Petition for Writ of 

Habeas Corpus as time-barred under AEDPA. On January 10, 2001, petitioner filed a request for 

a certificate of appealability with the U.S. Court of Appeals for the Third Circuit, which denied 

the request on October 31, 2001 because, “as explained by the Magistrate Judge, the appellant’s 

habeas corpus petition was not timely filed.” Order, at 1 (Doc. No. 29, filed Nov. 1, 2001). 

Some twelve years later, on October 11, 2012, petitioner filed a motion under Federal 

Rule of Civil Procedure 60(b), arguing that the Court erred in its December 13, 2000, Order 

because the statute of limitations under the AEDPA should have been equitably tolled. 

Petitioner’s argument for equitable tolling was based on the opinion of the U.S. Court of Appeals 

for the Third Circuit in Lovasz v. Vaughn, 134 F.3d 147 (3d Cir. 1998), which, petitioner 

claimed, instructed him to exhaust his state remedies and caused him to believe that his AEDPA 

filing period would be tolled during the pendency of his state proceedings. It was petitioner’s 

position that Lovasz functioned as the “extraordinary circumstance” that prevented him from 

timely filing his federal habeas petitioner, such that he was entitled to equitable tolling of the 

AEDPA statute of limitations. 

The Court dismissed and denied petitioner’s October 11, 2012 60(b) motion, concluding 

that the motion, which sought relief twelve years after the issuance of the December 13, 2000

Order, was not brought within a reasonable time, as required by Rule 60(b). The Court also 

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denied petitioner’s motion on the merits, concluding that the decision in Lovasz did not 

constitute extraordinary circumstances sufficient to warrant equitable tolling.

On August 7, 2013, petitioner filed the instant 60(b) Motion. In this Motion, petitioner

argues that under McQuiggin v. Perkins, his actual innocence claims are entitled to an exception 

from the AEDPA’s limitations period, and therefore the Court erred when it denied those claims 

as untimely in its December 12, 2000 Order.

1 Petitioner filed three additional motions related to 

this 60(b) Motion: (1) Motion for Expert Witness Funds and Exparte [sic] Hearing, (2) Motion 

for State Court Trial Transcripts and Preliminary Hearing, and (3) Motion for State Court 

Record. The Court addresses each motion in turn.

III. DISCUSSION

A. Rule 60(b) Motion

i. Petitioner’s 60(b) Motion Is Not a Second or Successive Habeas Petition

When addressing a Rule 60(b) motion in a habeas case, the Court must first determine 

whether the motion is, in essence, a second or successive habeas petition. Such a ruling is 

required because the AEDPA requires a petitioner to obtain a certification from the court of 

appeals authorizing the district court to address a second or successive habeas petition. See 28 

U.S.C. § 2244(b)(3). A Rule 60(b) motion will be construed as a successive habeas petition

 1 Petitioner also cites United States v. Andrews, 463 F. App’x 169 (3d Cir. 2012) (citing Souter v. 

Jones, 395 F.3d 577, 599 (6th Cir. 2005)) for the proposition that an actual innocence claim is 

“an exception for” the equitable tolling of the AEDPA’s limitations period. In doing so, 

petitioner appears to conflate equitable tolling of the limitations period with an exception to the

application of the limitations period. This Court will focus its analysis on the exception to the 

limitations period announced in McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). To the extent 

that petitioner is arguing that he is entitled to equitable tolling rather than an exception to the 

limitations period, that claim is dismissed as untimely under Rule 60(b). Petitioner already 

argued that his claim should have been equitably tolled in his previous 60(b) motion filed 

October 11, 2012. This Court dismissed that motion as untimely, and petitioner has offered no 

reason for the Court to rule otherwise on this Motion. 

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when the defendant challenges his underlying conviction rather than the manner in which his 

previous habeas petition was procured. See Gonzalez, 545 U.S. at 531; Pridgen v. Shannon, 380 

F.3d 721, 727 (3d Cir. 2004). 

The Court concludes that petitioner’s motion, because it challenges the propriety of the 

Court’s application of the AEDPA’s statute of limitations in light of the Supreme Court’s 

decision in McQuiggin, attacks the manner in which his habeas petition was dismissed and, thus,

is properly treated as a 60(b) motion, not a second or successive habeas petition. See, e.g., 

Akiens v. Wynder, No. 06-cv-5239, 2014 WL 1202746, at *2 (E.D. Pa. Mar. 24, 2014) 

(concluding that petitioner’s 60(b) motion challenging application of statute of limitations in 

light of McQuiggin was not a second or successive habeas petition).

ii. Petitioner Has Not Shown Extraordinary Circumstances Sufficient to Warrant 

Rule 60(b)(6) Relief 

Rule 60(b) permits a party to seek relief from a final judgment under a limited set of 

circumstances. See Fed. R. Civ. P. 60(b). Petitioner does not specify the precise provision of 

Rule 60(b) under which he seeks relief. As none of the specific grounds for relief stated in Rule 

60(b)(1)-(5) apply to petitioner’s Motion, the Court construes the Motion as seeking relief 

pursuant to Rule 60(b)(6), the catch-all provision that allows a court to consider “any other 

reason that justifies relief.” 

In order to obtain relief under Rule 60(b)(6), petitioner must show the existence of 

“extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Such 

extraordinary circumstances “rarely occur in the habeas context.” Id. Moreover, “[i]ntervening 

developments in the law by themselves rarely constitute the extraordinary circumstances 

required for relief under Rule 60(b)(6).” Agostini v. Felton, 521 U.S. 203, 239 (1997). 

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The Court concludes that petitioner has not shown extraordinary circumstances sufficient 

to warrant relief under Rule 60(b)(6). Petitioner’s Motion is premised upon the Supreme Court’s 

decision in McQuiggin, in which the Court held that a claim of actual innocence, if proven, 

provides an equitable exception to the one-year statute of limitations in 28 U.S.C. 2244(d)(1).

See 133 S. Ct. at 1928. McQuiggin, however, was decided more than twelve years after this 

Court’s December 13, 2000 Order, and therefore constitutes a “development[] in the law,” which 

“rarely constitute[s]” extraordinary circumstances sufficient for Rule 60(b)(6) relief. Agostini, 

521 U.S. at 239. Petitioner has provided no argument or supporting authority for his contention 

that the legal development in McQuiggin constitutes extraordinary circumstances, and several 

courts have held otherwise. See, e.g., Akiens, 2014 WL 1202746, at *3 (collecting cases).

The holding of the Supreme Court in Gonzalez further undercuts petitioner’s position. 

The Gonzalez petitioner argued that he had shown extraordinary circumstances sufficient to 

warrant Rule 60(b) relief because his petition, which the U.S. Court of Appeals for the Eleventh 

Circuit determined was untimely, would have been deemed timely under the later Supreme Court 

decision in Artuz v. Bennett, 531 U.S. 4 (2000).

2 The Court rejected petitioner’s argument, 

concluding that it was “hardly extraordinary that subsequently, after petitioner’s case was no 

longer pending, this Court arrived at a different interpretation.” Gonzalez, 545 U.S. at 536. 

The Court finds these cases persuasive and denies petitioner’s 60(b) Motion on the

ground that the legal development in McQuiggin does not constitute extraordinary circumstances 

sufficient to warrant Rule 60(b) relief. 

 2 Artuz v. Bennett, 531 U.S. 4 (2000) changed the law in the U.S. Court of Appeals for the 

Eleventh Circuit as to when a petition is “properly filed” for purposes of tolling the AEDPA 

statute of limitations. See 28 U.S.C. § 2244(d)(2). 

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iii. Petitioner Has Not Presented Sufficient Evidence of Actual Innocence

Notwithstanding the Court’s ruling that petitioner has not shown extraordinary 

circumstances sufficient to warrant Rule 60(b) relief, the Court addresses the evidence presented 

by petitioner in his submissions. In short, petitioner has not adduced any new evidence sufficient 

to warrant application of the exception to the statute of limitations established in McQuiggin

even if McQuiggin were applicable, which it is not. 

In McQuiggin, the Court held that actual innocence, if proven, provides an exception to 

the one-year statute of limitations in AEDPA. 133 S. Ct. at 1928. The Court noted, however, 

that such an exception applies only to a “severely confined category” of cases: those where the

petitioner produces new evidence sufficient to show that “it is more likely than not that no 

reasonable juror would have convicted [the petitioner].” Id. at 1933 (quoting Schlup v. Delo, 513 

U.S. 298, 329 (1995)). 

Petitioner’s evidence in this case fails to meet the demanding standard of actual 

innocence set out in McQuiggin. Much of petitioner’s evidence fails to meet this standard

because it is not “new” evidence. See Schlup, 513 U.S. at 327-28 (new evidence is “evidence 

that was either excluded or unavailable at trial”); Goldblum v. Klem, 510 F.3d 204, 226 (3d Cir. 

2007) (“Evidence is not new if it was available at trial, but a petitioner merely chose not to 

present it to the jury.” (internal quotation marks omitted)). Such evidence includes FBI Agent 

Peele’s trial testimony regarding gunshot residue on petitioner’s hands, the gunshot residue 

report, petitioner’s own sworn statement dated November 23, 1992, and the “defense points for 

charge.” 60(b) Mot. at 5. 

Moreover, the alleged new evidence petitioner has presented is insufficient to establish 

that it is more likely than not that no reasonable juror would have convicted him. For instance, 

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petitioner provides affidavits from Ruth Jimenez and Delia Sanchez and asserts that they “do not 

corroborate” prosecution witness Elias Jimenez’s testimony that he saw petitioner with the 

murder weapon from Ruth Jimenez’s window. The affidavits, however, merely state that Elias

Jimenez was in Ruth Jimenez’s apartment watching television when the shooting occurred; they 

do not state that Elias Jimenez could not have seen defendant through the window. 3 See 60(b) 

Mot. at 18, 21. Similarly deficient is the map of the location of the offense, which petitioner 

obtained from the City of Lancaster. Petitioner argues that Elias Jimenez’s testimony — that he 

saw defendant run into an alleyway on East Mifflin Street — cannot have been true because the 

map shows that no alleyway exists in that location. The map, however, is insufficiently marked 

for the Court to determine if an alleyway exists. Even if the Court could so determine, the map

is not dated and was requested from the City of Lancaster more than seventeen years after the 

crime was committed. Accordingly, the Court cannot determine on the basis of the map whether 

an alleyway existed at the time of the offense. Such evidence is insufficient to establish that it is 

more likely than not that no reasonable juror would have convicted petitioner. 

Petitioner’s other proffered evidence is similarly unavailing. Petitioner attaches his trial 

counsel’s testimony at his Post-Conviction Relief Act (“PCRA”) hearing, in which trial counsel 

states that he advised petitioner against testifying on his own behalf at trial because he was 

concerned about “collateral issues,” such as how petitioner was supporting himself and whether 

petitioner was involved with drugs. Petitioner also attaches a copy of a petition from his trial 

counsel to the Court of Common Pleas of Lancaster County in which he sought a certificate 

 3 The Court also notes that the Third Circuit considered these affidavits in denying petitioner’s 

application for permission to file a second or successive habeas petition, concluding that 

petitioner failed to establish “by clear and convincing evidence that, but for constitutional error, 

no reasonable factfinder would have found [Pridgen] guilty of the underlying offense.” Order, 

Pridgen v. Klem, No. 05-cv-1744 (Doc. No. 7, Aug. 2, 2005). 

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directing the appearances of two witnesses at petitioner’s trial. These pieces of evidence, while 

potentially probative of counsel’s trial strategy, are of no probative value whatsoever in 

establishing defendant’s actual innocence. Finally, petitioner provides several police reports, 

which, he argues, show inconsistencies in various prosecution witnesses’ testimony, such as who 

had the victim’s jacket at what time and whether holes at the scene of the crime were bullet 

holes. Even assuming arguendo that the reports evince the inconsistencies petitioner alleges, the 

Court concludes that the alleged inconsistencies are insufficient to establish that it is more likely 

than not that no reasonable juror would have convicted petitioner. Accordingly, this case does 

not fall into the “severely confined category” of cases in which McQuiggin provides an 

exception to the AEDPA statute of limitations even if McQuiggin were applicable to this case, 

and it is not. The Court thus denies petitioner’s 60(b) Motion on this ground as well. 

B. Motion for Expert Witness Funds and Ex Parte Hearing

Petitioner moves the Court, pursuant to 18 U.S.C. § 3006A(e), for $13,600 dollars in 

order to obtain an expert witness for the purpose of proving his actual innocence claim in his 

60(b) Motion.

The decision to grant or deny a request for the appointment of an expert under 

§ 3006A(e) is committed to the trial court’s discretion. United States v. Roman, 121 F.3d 136, 

143 (3d Cir. 1997). The defendant has the burden of showing both that the appointment of an 

expert is necessary for adequate representation and that he is financially unable to afford the 

expert’s services. United States v. Sanchez, 912 F.2d 18, 22 (2d Cir. 1990). The test for 

determining whether an expert’s services are necessary is “whether a reasonable attorney would 

engage such services for a client having independent financial means to pay for them.” United 

States v. Goodwin, 770 F.2d 631, 635 (7th Cir. 1985). “[T]o meet this burden, ‘a defendant must 

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demonstrate with specificity, the reasons why such services are required.’” United States v. Pitts, 

346 F. App’x 839, 841-42 (3d Cir. 2009) (quoting United States v. Gadison, 8 F.3d 186, 191 (5th 

Cir.1993) (emphasis in original)).

In his Motion, petitioner argues that the Court should appoint an expert witness for him to 

use in challenging FBI Agent Peele’s trial testimony regarding the Gunshot Residue (“GSR”) lab 

testing in the case. Petitioner claims that an expert is necessary because Agent Peele testified 

that the GSR lab testing revealed one sample that had elevated amounts of barium and antimony, 

“but never identified this sample to [the] jury, court, nor defendant.” Mot. to Supp. at 2 (Doc. 

No. 82). According to petitioner, that testimony was incorrect because the results of the GSR 

report were inconclusive and, therefore, exculpatory. Finally, petitioner argues that the gunshot 

residue sample with elevated levels of barium and antimony was from his left hand, 

contradicting the prosecution’s theory of the case that petitioner shot the gun with his right hand, 

and supporting petitioner’s theory that the gun was fired while he was trying to take the gun from 

a friend. 

The Court denies petitioner’s Motion for Expert Witness Funds. Petitioner fails to detail 

or even summarize the testimony and other evidence he believes an expert would present. 

Moreover, assuming arguendo that such an expert would testify that the elevated gunshotresidue sample was, as petitioner asserts, inconclusive, such evidence has been deemed to fall 

“considerably below” McQuiggin’s actual-innocence standard. Sturgis v. Varner, No. 01-060, 

2014 WL 1340411, at *3 (E.D. Pa. Apr. 4, 2014) (“[T]he [gunshot residue] analysis is not 

conclusive, and we find that this evidence falls considerably below the ‘demanding’ standard of 

proving ‘actual innocence.’” (quoting McQuiggin, 133 S. Ct. at 1928)). The probative value of 

any such expert testimony would be further diminished in this case because the record reveals 

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that Agent Peele quite clearly testified that the ratios of barium to antimony in the elevated 

sample, with which petitioner takes issue, rendered that sample inconclusive. See Mot. to Supp. 

21 (ECF. No. 82) (“[T]he amounts of barium and antimony in this case are somewhat elevated . . 

. . Had the ratios [of barium to antimony] been proper, which these were off in this case, then 

potentially a different result -- a different result could’ve been found on one of the samples in 

this case.”) (emphasis added). 

Petitioner’s final argument supporting his request for an expert — that the elevated 

gunshot residue sample on his left hand corroborates his version of events and undermines the 

government’s version — similarly fails. Petitioner’s affidavit, upon which he relies to evidence 

his theory of events, does not state that the gun went off in his left hand and therefore the 

elevated sample does not support his version of events. See Statement of James M. Pridgen, 

60(b) Mot. at 14 (“I said put that [gun] away and when he didn’t, I went to take the gun from 

him. When I pulled the gun from him it went off and the bullet hit Wayne.”) Nor does that

sample contradict the testimony of the government witnesses that he fired the gun with his right 

hand. As previously discussed, the elevated sample on petitioner’s left hand, by petitioner’s own 

admission, was inconclusive. An inconclusive gunshot residue sample on petitioner’s left hand 

does not contradict the trial testimony that petitioner used his right hand to fire the gun. 

Moreover, any such contradiction would merely cast doubt on the circumstantial evidence of 

petitioner’s conviction, and would be insufficient to prove petitioner’s actual innocence. See 

Thomas v. Pollard, No. 06-1126, 2007 WL 2463292, at *7 (E.D. Wis. Aug. 27, 2007) 

(“Evidence which merely casts doubt on the credibility of witnesses or challenges the strength of 

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circumstantial evidence is insufficient [to establish actual innocence].”). The Court thus denies 

petitioner’s Motion for Expert Witness Funds and Exparte [sic] Hearing.4 

C. Motion for State Court Trial Transcripts and Transcript of Preliminary Hearing

Petitioner moves the Court, pursuant to 28 U.S.C. § 753 and 18 U.S.C. § 3006A(a)(2)(B), 

for the state court preliminary-hearing and trial transcripts. Petitioner later filed a supplement to 

his Motion for Expert Witness Funds and Exparte [sic] Hearing, stating that his family members 

“located the trial transcripts.” Mot. to Supp. at 1. Accordingly, the Court denies petitioner’s 

Motion as moot insofar as it requests the state court trial transcript. 

The Court also denies petitioner’s Motion insofar as it requests the preliminary-hearing 

transcripts. Petitioner provides no basis for that request other than that “[w]ithout these records 

Petitioner will be unable to demonstrate the ‘miscarriage of Justice’, and his innocence.” Mot. 

for State Ct. Trial Tr. at 1 (Doc. No. 60); see also United States v. Brown, 443 F.2d 659, 660 

(D.C. Cir. 1970) (concluding that provision of transcripts at government expense under 18 US.C. 

§ 3006A(e)(1) requires a showing that the transcripts are necessary to an adequate defense). 

D. Motion for State Court Record

Petitioner filed an additional motion captioned as Motion for State Court Record, again 

requesting the preliminary hearing and trial transcripts. This Motion is identical to petitioner’s 

motion for State Court Trial Transcripts and Preliminary Hearing discussed above and is denied 

for the same reasons. 

 4 The Court denies defendant’s request for an expert witness without an ex parte hearing. The 

Motion sets forth all the factual allegations that could be developed at a hearing. Furthermore, 

since the Court has determined that these allegations, even if true, do not warrant the 

appointment of an expert, there are no factual issues for the Court to resolve. Accordingly, an ex 

parte hearing would serve no purpose. 

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E. Motions for Extension of Time

Petitioner has filed nine motions for extensions of time in which to file a reply to the 

government’s Response to his Rule 60(b) Motion. All of the motions, excepting only the last 

three, were granted. The last three motions sought extensions of time so that petitioner could 

present in his reply the opinions and report of an expert on the question of gunshot residue. The 

Court has concluded that the proposed expert testimony on this subject — even assuming that 

such testimony establishes what petitioner asserts it would establish — is insufficient to prove 

petitioner’s actual innocence. For that reason, petitioner’s Motion for Expert Witness Funds was 

denied. See supra Part III.B. Accordingly, the three pending motions for extensions of time to 

present the opinion of an expert witness are denied as moot.

IV. CONCLUSION

For the foregoing reasons, the Court denies petitioner’s 60(b) Motion Alleging a Defect 

in the Integrity of the Federal Habeas Corpus Proceedings, petitioner’s Motion for Expert 

Witness Funds and Exparte [sic] Hearing, petitioner’s Motion for State Court Record, and 

petitioner’s Motion for State Court Trial Transcripts and Preliminary Hearing. An appropriate 

order follows. 

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