IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TYRONE GREEN, :

Petitioner, :

:

v. : CIVIL ACTION NO. 03-CV-6879

:

WILLIAM J. WOLFE, et al., :

Respondents. :

MEMORANDUM

McHUGH, J. December 3, 2021

Pro se Petitioner Tyrone Green, a prisoner in state custody, has filed a Motion for Relief 

from Judgment Under Fed. R. Civ. P. 60(b). (See ECF No. 60.) Green seeks to reopen the 

judgment dismissing his Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. 

Because the Motion must be deemed to be an unauthorized second or successive habeas petition 

over which this Court lacks jurisdiction, the Motion is dismissed.

I. BACKGROUND

The procedural history and factual background of Mr. Green’s conviction is fully set 

forth in the Report and Recommendation prepared by Magistrate Judge Diane M. Welsh. (ECF 

No. 11.) On September 1, 2004, a judge of this Court approved and adopted the Report and 

Recommendation, and Green’s Petition for Writ of Habeas Corpus was denied. (ECF No. 13.) 

Mr. Green then filed a series of motions to reopen judgment in the years that followed. The 

details of these motions and their resolution need not be restated here. Rather, the Court outlines 

only the information necessary to place the instant Motion in context. 

On May 1, 2009, in denying Green’s fifth motion to reopen judgment, this Court 

precluded Green from filing further motions pursuant to Federal Rule of Civil Procedure 60(b) 

without first obtaining permission from this Court. (ECF No. 32.) One such motion was filed on

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March 23, 2017. (ECF No. 56.) In the proposed 60(b) motion, Green presented evidence of two 

pretrial interviews, arguing that the Commonwealth had previously withheld the information in 

violation of Brady v. Maryland. On October 30, 2017, this Court denied Green’s request for 

Permission to File a Motion for Rule 60(b) relief, determining that the arguments contained in 

the 60(b) motion were barred by the successive petition rule. (ECF No. 57.)

Green filed request for a certificate of appealability in the Third Circuit Court of Appeals, 

which was denied. The Third Circuit noted:

Appellant sought relief from judgment in the District Court under Federal 

Rule of Civil Procedure 60(b)(6), claiming violations of Brady v. Maryland, 373 

U.S. 83 (1963), and citing Dennis v. Secretary, Pennsylvania Department of 

Corrections, 834 F.3d 263 (3d Cir. 2016) (en banc). But because Appellant asserted 

a “federal basis for relief from a state court’s judgment of conviction,” Gonzalez v. 

Crosby, 545 U.S. 524, 530 (2005), his request for relief from judgment under Rule 

60(b)(6) was actually an unauthorized second or successive habeas petition, see id. 

at 530-31. Accordingly, Appellant has not shown that jurists of reason would 

debate that the District Court appropriately disposed of his request for relief from 

judgment under Rule 60(b)(6). See Slack v. McDaniel, 529 U.S. 473, 484-85 

(2000); Morris v. Horn, 187 F.3d 333, 340-41 (3d Cir. 1999).

Green v. Superintendent, C.A. No. 17-3498.

In the current Motion, Green again seeks permission to file a motion for relief pursuant to 

Rule 60(b). (ECF No. 60.) Green resubmits the same allegations that were submitted in his 

2017 filing and asks for this Court to reconsider its denial of his of 2017 Motion for permission 

to file a new 60(b) motion in light of the Third Circuit’s recent decision in Bracey v. 

Superintendent, 986 F.3d 274 (3d Cir. 2021).

II. DISCUSSION

Because this is a federal habeas action, the Court must evaluate whether the Rule 60(b) 

Motion is in fact an unauthorized second or successive habeas petition. That is because the 

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified in relevant part at 

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28 U.S.C. § 2244(b), mandates that before a state prisoner may file a second or successive 

habeas petition in which he challenges a judgment of sentence that he previously challenged in a 

federal habeas action, he must first obtain an order from the appropriate court of appeals 

authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A); see, e.g., 

Magwood v. Patterson, 561 U.S. 320, 330-31 (2010); United States v. Winkelman, 746 F.3d 134, 

135 (3d Cir. 2014); In re Pendleton, 732 F.3d 280, 282 (3d Cir. 2013) (per curiam). AEDPA’s 

allocation of “gatekeeping” responsibilities to the courts of appeals has divested district courts of 

jurisdiction over habeas applications that are second or successive. See, e.g., Burton v. Stewart, 

549 U.S. 147 (2007). A habeas petitioner cannot avoid AEDPA’s second or successive 

gatekeeping mechanism by raising habeas claims in a filing that he designates as a Rule 60(b) 

motion. Brian R. Means, FEDERAL HABEAS MANUAL § 11:42, Westlaw (database updated 

May 2019) (a habeas petitioner “is not permitted to circumvent AEDPA’s second or successive 

petition requirements simply by labeling the petition or motion as something other than what it 

is.”).

In Gonzalez v. Crosby, 545 U.S. 524 (2005), the United States Supreme Court addressed 

the circumstances in which the utilization of Rule 60(b) is “inconsistent with” AEDPA’s second 

or successive petition requirements and, as a consequence, not available to a state prisoner 

seeking habeas relief.1 It explained that a Rule 60(b) motion must be construed as a “second or 

successive habeas corpus application” when it advances one or more “claims” attacking the 

underlying conviction. Id., 545 U.S. at 531-32 (quoting § 2244(b)(1) and (2)). “In most cases,” 

1 “Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings 

under 28 U.S.C. § 2254 only ‘to the extent that [it is] not inconsistent with’ applicable federal 

statutory provisions and rules.’” Gonzalez, 545 U.S. at 529 (footnote omitted, bracketed text 

added by Supreme Court) (quoting what is now Rule 12 of the Rules Governing Section 2254 

Cases).

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the Supreme Court observed, “determining whether a Rule 60(b) motion advances one or more 

‘claims’ will be relatively simple.” Id. at 532. “A motion that seeks to add a new ground for 

relief . . . will of course qualify.” Id. The Supreme Court further instructed that a petitioner is 

also advancing a habeas claim in a Rule 60(b) motion if he “attacks the federal court’s previous 

resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on 

the merits is effectively indistinguishable from alleging that the movant is, under the substantive 

provisions of the statutes, entitled to habeas relief.” Id. (footnote omitted). Similarly, a motion 

that seeks to present newly discovered evidence in support of a claim that was previously denied 

represents a habeas claim. Id.

Through the present motion, Green asks this Court to reconsider its denial of his 2017

60(b) Motion, in light of the Third Circuit’s recent decision in Bracey v. Superintendent, 986 

F.3d 274 (2021). But Green’s reliance on Bracey is misplaced. The petitioner in Bracey sought 

reconsideration of the district court’s prior time-bar determination based on recent Circuit 

precedent that caused a change of law with respect to the calculation of the time-bar. In Bracey, 

the petitioner was not attempting to relitigate the merits of a previously rejected Brady claim, or 

attempting to present an entirely new Brady claim. In contrast, in reviewing Green’s 2017 

motion both this Court and the Third Circuit Court of Appeals determined that the submission 

contained a new claim for relief pursuant to Brady v. Maryland and was, thus, an improperly 

submitted successive petition. In the present motion, Green is attempting to resubmit that same 

new claim. Therefore, the Motion must be construed as an unauthorized second or successive 

habeas petition to the extent that in it he is challenging his judgment of sentence. Because he has 

not received authorization from the Court of Appeals to file another federal habeas petition in 

order to attack that judgment of sentence, this Court lacks jurisdiction to consider those claims.

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An appropriate Order dismissing the Rule 60(b) Motion for lack of jurisdiction and 

finding no probable cause to issue a certificate of appealability follows.

BY THE COURT:

 /s/ Gerald Austin McHugh

GERALD A. MCHUGH, J.

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