IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FLOYD M. BROWN,

Petitioner,

v.

EDWARD KLEM, et al.,

Respondents.

CIVIL ACTION

NO. 05-824

OPINION

Slomsky, J. August 21, 2017

I. INTRODUCTION AND BACKGROUND

On September 20, 1983, Petitioner Floyd M. Brown pled guilty to second degree murder.

Prior to the plea, he informed the Honorable Edwin S. Malmed, a Judge of the Court of Common 

Pleas of Philadelphia County, that he wished to enter a guilty plea to second degree murder for 

shooting Edward Lang Sr. during the May 11, 1983 robbery of a bicycle shop in Philadelphia. 

(Doc. No. 16 at 2.) Petitioner was sentenced to life imprisonment. (Id. at 1.) 

Before accepting the guilty plea, the court advised Petitioner of his rights and the mandatory 

life sentence required to be imposed for a guilty plea to second degree murder. (Id. at 3.) 

Petitioner stated that he understood his rights, the factual basis for his plea, the sentence about to 

be imposed, and that he was pleading knowingly and voluntarily. (Id.) Before the guilty plea, 

Judge Malmed made the following statement on the record to Plaintiff’s mother who was in the 

courtroom1

:

1 The statement regarding Petitioner’s eligibility for parole under Pennsylvania law was incorrect 

because a defendant who receives a life sentence is not eligible for parole unless the governor 

first grants a commutation. Commonwealth v. Trivigno, 750 A.2d 243, 256 (Pa. 2000). 

 
COURT: Well, I want you to know this: a life sentence is required. I 

have no choice.

MRS. BROWN: I understand. 

COURT: But under our system, he may apply for parole, if he has 

behaved himself, and the way it is operating today, as I 

understand it, they will entertain or receive petitions for 

parole in about twelve [12] years, and if he behaves 

himself, shows that he can come back and take his place in 

society, he may be paroled. What I am trying to tell you, it 

is not the end of the world. 

MRS. BROWN: Judge, your honor, I thank you for your mercy because I 

know that if it was me, I would probably feel an eye for an 

eye would be right, but he is my son and I love him, and I 

ask God to forgive him, and the people that he hurt, them to 

forgive him too, and I just thank you. 

COURT: Let’s hope that at some future date he is paroled, but I don’t 

want to hold out any false hopes for you. It will be at least 

12 to 13 years. However, there is daylight. I want you to 

know that. 

(Id.) Neither defense counsel nor the prosecutor corrected the court. The trial court then 

sentenced Petitioner to life imprisonment. (Id.) 

After his sentencing, Petitioner did not file a motion to withdraw his guilty plea, nor did 

he file a direct appeal. Rather, on February 15, 2000, approximately sixteen years after he was 

sentenced, Petitioner inquired about the possibility of parole. (Id. at 4.) On March 7, 2000, he

was informed that the parole board “had no jurisdiction” to grant parole because Petitioner was 

serving a life sentence for second degree murder, and “at the present time, there is no early 

parole provision in the Parole Act.” (Id.) 

On April 25, 2000, Petitioner filed a pro se petition under Pennsylvania’s Post Conviction 

Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-9546. In the PCRA petition, Petitioner 

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raised claims of ineffective assistance of counsel and the lack of a knowing, voluntary, and 

intelligent plea. The PCRA court appointed counsel for Petitioner, who filed an amended 

petition on his behalf. (Doc. No. 16 at 4.) Thereafter, the PCRA court permitted appointed 

counsel to withdraw, and appointed new counsel to represent Petitioner. On March 21, 2002, the 

PCRA court held an evidentiary hearing. (Id.) 

On July 25, 2002, the PCRA court granted the petition, vacated Petitioner’s guilty plea 

and sentence, and remanded for a new trial. (Id.) Although the petition was untimely under 

Pennsylvania’s one-year time bar for PCRA petitions,2 the court found Petitioner met two of the 

applicable exceptions to this rule: new evidence not otherwise discoverable by due diligence 

(that he was not eligible for parole) and governmental interference (Judge Malmed’s erroneous 

statement regarding the availability of parole). (Id. at 5.) 

The Commonwealth appealed to the Pennsylvania Superior Court. On December 19, 

2003, the Superior Court issued a non-precedential opinion in which it reversed the PCRA 

court’s decision. (Doc. No. 14 at 4.) The Superior Court ruled that Petitioner could have 

ascertained, with due diligence, that he was ineligible for parole prior to March 2000. (Doc. No. 

16 at 5.) While it found that Judge Malmed and his lawyer told Petitioner that he may be eligible 

for parole in twelve to thirteen years, the Superior Court determined that Petitioner failed to 

exercise reasonable diligence when he waited an additional three to four years before inquiring 

into his parole. (Id.) Thus, Petitioner’s PCRA petition was untimely under Pennsylvania law. 

2 Under Pennsylvania law, Petitioner had until January 16, 1997 to file a timely petition because 

the judgment became final prior to January 15, 1996, the effective start day of the 1995 

amendments to the PCRA. See Commonwealth v. Alcorn, 703 A.2d 1054, 1057 (Pa. Super. Ct. 

1997).

3

 
On April 20, 2004, the Pennsylvania Supreme Court denied his petition for allowance of 

appeal. (Doc. No. 14 at 4.) 

On February 14, 2005, Petitioner filed in this Court a pro se Petition for a Writ of Habeas

Corpus pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 

2254. (Doc. No. 1.) On May 10, 2005, the Petition was referred to the Honorable Magistrate 

Judge Peter B. Scuderi for a Report and Recommendation (“R&R”). (Doc. No. 3.) On October 

13, 2005, Judge Scuderi issued an R&R recommending that Petitioner’s claim for relief be 

denied and that a certificate of appealability not be issued. (Doc. No. 14.) Petitioner filed 

Objections to the R&R. (Doc. No. 15.) On February 1, 2006, the Honorable Judge William H. 

Yohn, Jr. denied Petitioner’s Objections and adopted the R&R. (Doc. No. 16.) 

More than a decade later, on June 1, 2017, Petitioner filed the present Motion for Relief 

from a Judgment, pursuant to Federal Rule of Civil Procedure 60(b), asking this Court to 

reconsider the Order, which adopted the R&R and denied the writ of habeas corpus. (Doc. No. 

24.) On July 6, 2017, Respondents filed a Response in Opposition to Petitioner’s Motion. (Doc. 

No. 27.) On August 9, 2017, Petitioner filed a Reply. (Doc. No. 30.) For reasons that follow, 

Petitioner’s Rule 60(b) Motion will be denied. 

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 60(b) governs a party’s ability to ask for relief from a 

judgment or order. It states:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion 

and just terms, the court may relieve a party or its legal representative from a final 

judgment, order or proceeding for the following reasons: 

(1) mistake, inadvertence surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable diligence, could not 

have been discovered in time to move for a new trial under Rule 59(b); 

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(3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released or discharged; it is based on 

an earlier judgment that has been reversed or vacated; or applying it 

prospectively is no longer equitable; OR 

(6) Any other reason that justifies relief. 

Fed. R. Civ. P. 60(b). Rule 60(b)(6) “vests power in courts adequate to enable them to vacate 

judgment whenever such action is appropriate to accomplish justice.” Devon IT, Inc. v. IBM 

Corp., No. 10-2899, 2013 WL 6721748, at *3 (E.D. Pa. Dec. 20, 2013) (quoting Klapprott v. 

United States, 355 U.S. 601, 615 (1949) (internal quotation marks omitted)). “This provision 

applies only when there are reasons for relief other than those set out in the more specific clauses

of Rule 60(b).” Id. A court should employ a “flexible, multifactor approach to Rule 60(b)(6) 

motions . . . that takes into account all the particulars of a movant’s case.” Cox v. Horn, 757 

F.3d 113, 122 (3d Cir. 2014.) However, the court should utilize Rule 60(b)(6) sparingly and 

only in “extraordinary circumstances where, without such relief, an extreme and unexpected 

hardship would occur.” Id. 

III. ANALYSIS

Pursuant to Federal Rule of Civil Procedure 60(b)(6), Petitioner requests that the Court 

reconsider the Order adopting the R&R and denying the Petition. (Doc. No. 24.) He argues that 

a change in Pennsylvania state law (Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017)) and his

newly raised mental health issues are “extraordinary circumstances” that excuse his lateness and 

entitle him to relief under Rule 60(b). (Doc. No. 24 at 13-14.) These arguments fail for the 

reasons explained below, and the Rule 60(b) Motion will be denied. 

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A. Petitioner’s Rule 60(b) Motion Is Untimely

A Rule 60(b) motion will generally be considered untimely if it is not filed within a year 

of the habeas judgment, unless there are “extraordinary circumstances” that excuse the party’s 

failure to proceed sooner. Gordon v. Monoson, 239 F. App’x 710, 713 (3d Cir. 2007). Rule 

60(b)(6) motions must be filed “within a reasonable time” from the entry of judgment. See Fed.

R. Civ. P. 60(c)(1) (“A motion under Rule 60(b) must be made within a reasonable time – and 

for reasons (1), (2), and (3) no more than a year after the entry of the judgment, order, or the date 

of the proceeding.”). The United States Court of Appeals for the Third Circuit has held that Rule 

60(b)(6) “may not be used as a catchall to avoid the one-year limitation.” Gambocz v. Ellmyer, 

438 F.2d 915, 917 (3d Cir. 1971) (citing Fed. R. Civ. P. 60(c)(1)). 

Petitioner’s present Rule 60(b) Motion was not filed within a reasonable time. On 

February 1, 2006, the Honorable William H. Yohn, Jr. dismissed the Petition. (Doc. No. 16.) 

On March 5, 2007, the United States Supreme Court denied his petition for certiorari. 

More than ten years later, on June 1, 2017, Petitioner filed the present Rule 60(b) Motion. 

(Doc. No. 24.) This ten-year delay in filing the Rule 60(b)(6) Motion is not “within a reasonable 

time” from the habeas judgment entered more than a decade ago. Gordon, 239 F. App’x at 713. 

Moreover, as explained below, there are no extraordinary circumstances to excuse Petitioner’s 

untimeliness in filing this Motion. 

B. The Change in Law in Burton Is Not an Extraordinary Circumstance 

Justifying Petitioner’s Untimeliness in Filing the Rule 60(b) Motion

Generally, a change in law is not grounds for Rule 60(b) relief. Morris v. Horn, 187 F.3d 

333, 341 (3d Cir. 1999). The United States Supreme Court has stated that “intervening 

developments in the law by themselves rarely constitute extraordinary circumstances required for 

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

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Gonzalez v. Crosby, the Supreme Court denied a Rule 60(b) motion seeking to take advantage of 

a more permissive interpretation of a habeas deadline and explained that Rule 60(b) is not a 

mechanism for making rules retroactive. 545 U.S. 524, 536 (2005). 

Here, Petitioner cites Cox v. Horn, 757 F.3d 113 (3d Cir. 2014) to explain that the Third 

Circuit has “not foreclosed the possibility that a change in controlling precedent, even standing 

alone, might give reason for 60(b) relief.” (Doc. No. 24 at 7.) However, the Third Circuit in 

Cox examined only whether changes in controlling federal law could justify federal Rule 60(b) 

relief. 757 F.3d at 21. The Court of Appeals did not contemplate the possibility that a noncontrolling change in state law, as raised here, could justify Rule 60(b) relief. The Third Circuit

in Cox made clear that a change in federal law may justify Rule 60(b) relief if it is controlling as 

to the federal issue on which reconsideration is sought, but even then it may not lead to Rule 

60(b) relief. (Id. at 24.) 

Petitioner contends that the change in Pennsylvania state law made in Commonwealth v. 

Burton, 158 A.3d 618 (Pa. 2017) should warrant Rule 60(b) relief. (Doc. No. 24 at 8.) In his

Reply, Petitioner contends that Burton illustrated the courts’ struggle to properly define the 

meaning and application of the “newly discovered facts exception” in 42 Pa. Const. Stat. Ann. § 

9545(b)(1)(ii). (Doc. No. 30 at 3.) Thus, a review of the Burton decision is necessary to 

evaluate Petitioner’s claim. (Id.) 

Burton is a state law case regarding the newly-discovered facts exception to the PCRA’s 

one-year filing deadline. Burton, 158 A.3d at 618. The Third Circuit in Cox did not state that a 

non-controlling change in state law, like the state court decision in Burton, could alter federal 

habeas law and serve as a new ground for Rule 60(b) relief. (Doc. No. 27 at 6.) Habeas relief is

available only for violations of the Constitution, laws or treaties of the United States. 28 U.S.C. 

7
§ 2254(a). Consequently, Petitioner’s contention that the change in state law in Burton provides 

grounds for Rule 60(b) relief on his federal habeas petition is unpersuasive. 

C. Petitioner’s Mental Health Is Not an Extraordinary 

Circumstance Warranting Rule 60(b) Relief 

Petitioner also contends that his purported mental health issues constitute an 

“extraordinary circumstance” for purposes of both Rule 60(b) relief and excusing the lateness of 

his filing. (Doc. No. 24 at 9-12.) Petitioner essentially argues that equitable tolling should apply 

here to delay the accrual of the statute of limitations. (Id. at 8-9.) The United States Supreme 

Court has made clear that a petitioner is entitled to “equitable tolling” only if he shows (1) that 

he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in 

his way and prevented timely filing. Holland v. Florida, 560 U.S. 630, 659 (2010). Under the 

standard adopted by the Third Circuit in the equitable tolling context, “mental incompetence is 

not a per se reason to toll a statute of limitations. Rather, the alleged mental incompetence must 

somehow have affected the Petitioner’s ability to file a timely habeas petition.” Nara v. Frank, 

264 F.3d 310, 320 (3d Cir. 2001). “The burden is on the Petitioner to demonstrate with 

particularized description the causal relationship between the mental deficiency and failure to 

timely file the petition.” Champney v. Secretary Pennsylvania Dept. of Corrs., 468 F. App’x

113, 118 (3d Cir. 2012). 

Here, there is no evidence in the record that Petitioner’s mental health affected his ability 

to file a timely habeas petition. Petitioner was able to file his PCRA petition, his habeas petition, 

and the present Rule 60(b) Motion. (See Doc. Nos. 1, 24.) Petitioner provides medical 

documentation to identify his mental health issues; however, he does not demonstrate how his 

mental health issues affected his ability to file a timely Rule 60(b) Motion. (See Doc. No. 24 at 

30-46.) Petitioner offers no description of any causal link between his mental illness and his ten8
year delay in filing the Rule 60(b) Motion. In his Reply, Petitioner offers medial documentation 

from 2000 and 2011 to support his contention that he has suffered from mental health issues for a 

long period of time. (Doc. No. 30 at 15-22.) However, regardless of the condition he may have,

Petitioner’s mental health did not prevent him from submitting any of his other filings. He was 

able to present numerous filings to the Court during the period of time in which he is now 

claiming he was mentally unable to file such petitions and subsequent motions. Petitioner argues 

that he should have been afforded mental health equitable tolling for his Petition, but never 

raised any of these arguments when the Petition was filed. (See Doc. Nos. 1, 4, 13, 15, 24, 30.) 

Petitioner has failed to demonstrate that his mental illness was an actual impediment to the 

timely filing of the Petition. 

Petitioner’s mere assertion of mental illness does not explain his lateness in filing the 

present Rule 60(b) Motion, nor does it establish an “extraordinary circumstance” justifying 

reopening this case. See Perry v. Superintendent, SCI-Graterford, No. 06-1560, 2014 WL 

6901851, at *13 (W.D. Pa. Dec. 5, 2014) (extraordinary circumstance justifying 60(b) relief not 

found where petitioner failed to establish how “life long history of mental illness” and “later 

declared mental incompetence” actually “prevented him from filing in a timely manner”); see

also Champney v. Secretary Pennsylvania Dep’t of Corrs., 468 F. App’x 113, 118 (3d Cir. 2012) 

(no equitable tolling where petitioner “participated in court proceedings over an extended period 

of time” and “did not suffer any new mental impairment or injury between . . . when he was able 

to act on his own behalf in state court, and . . . when a habeas petition could have been timely 

filed”); Przybyszewski v. Pennsylvania, No. 14-974, 2015 WL 2417494, at *3 (E.D. Pa. May 21, 

2015) (no equitable tolling where petitioner did not explain failure to file for more than four

years after medication restored mental competence). 

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Petitioner waited more than ten years after the dismissal of his federal habeas petition to 

file the instant Rule 60(b) Motion. Considerations of finality and repose, which become stronger 

with the passage of time from the date of the decision of the Court, militate against disturbing 

Petitioner’s conviction entered over thirty-four years ago and the initial habeas proceeding which 

concluded over ten years ago. Perry, 2014 WL 6901851, at *13. Thus, there is no support for 

finding extraordinary circumstances justifying relief under Rule 60(b)(6). 

IV. CONCLUSION

For the aforementioned reasons, the Court will deny Petitioner’s Motion (Doc. No. 16). 

An appropriate Order follows. 

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