Rule 60(b) provides that on motion and just terms, the court may relieve a party or its 1

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); (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. 

Section (c)(1) provides that 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 or Order or

the date of the proceeding.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SCOTT NEWTON KERNS, : CIVIL ACTION

Petitioner :

:

v. : NO. 05-1794

:

EDWARD KLEM, et al., :

Defendants :

M E M O R A N D U M

STENGEL, J. June 30, 2008

Scott Newton Kerns filed a motion for relief of judgment pursuant to Rule 60(b)1

of the Federal Rules of Civil Procedure seeking: (1) relief from the judgment entered on

December 19, 2006, denying his petition for habeas corpus; or (2) relief from my Order

dated August 28, 2007, denying his motion to re-open the time to file an appeal. For the

following reasons, I will deny the motion in its entirety. 

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 1 of 11
 These facts are gleaned from the Report and Recommendation filed on October 30, 2

2006 (Document #16), and approved and adopted on December 19, 2006 (Document #17).

 Kerns was charged with involuntary deviate sexual intercourse with a person less than 3

13 years of age, sexual assault, rape of a person less than 13 years of age, aggravated indecent

assault of a person less than 13 years of age, statutory sexual assault, indecent assault of a person

less than 13 years of age, and indecent exposure.

2

I. BACKGROUND2

Kerns sexually molested his ten year-old stepdaughter over the course of several

months in 2000, allegedly using the abuse as a punishment when the child failed to do her

household chores. At the time of his arrest, Kerns gave statements to the police, most of

which were suppressed by the judge pre-trial. One statement, however, was not

suppressed: “I did it, I did everything she said.” The judge refused to suppress this

statement because Kerns made the statement after being advised of his Miranda rights and

not in response to police questioning. A month later, he changed his plea to guilty to a

charge of involuntary deviate sexual intercourse with a person less than thirteen years of

age. The judge accepted that plea after being assured that Kerns understood all the rights

he was giving up by pleading guilty. 

A month after pleading guilty, Kerns filed a motion to withdraw the guilty plea

claiming he was innocent. At the hearing scheduled, Kerns withdrew his motion to

withdraw. Months later, Kerns was sentenced to 71⁄2 to 20 years in prison. The judge

dismissed the remaining lesser charges. Kerns was not satisfied with his sentence, and 3

unsuccessfully appealed directly and sought collateral relief through the state courts.

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 2 of 11
3

On March 28, 2005, Kerns filed a timely petition for habeas corpus in federal

court, claiming that his guilty plea was obtained without a full understanding of the plea

and its consequences; that his guilty plea resulted from the ineffective assistance of

counsel; that his appellate counsel was ineffective; and that he was sentenced in excess of

the statutory maximum. I referred the petition to the Honorable David R. Strawbridge for

a Report and Recommendation. Judge Strawbridge determined that an evidentiary

hearing was necessary and appointed counsel to represent Kerns. Shortly after the

hearing, Judge Strawbridge filed a thorough thirty-three page Report & Recommendation,

recommending that the petition be denied and that a certificate of appealability not issue. 

I approved and adopted the Report & Recommendation on December 19, 2006. 

Kerns did not file a timely appeal. Instead, on August 12, 2007, he simultaneously

filed in this court a motion to “reopen the time to file an appeal pursuant to Rule 4(a)(6)

of the Federal Rules of Appellate Procedure,” and an untimely appeal in the Third Circuit

Court of Appeals. I denied the motion on August 28, 2007, finding that only two of the

three conditions of Rule 4(a)(6) had been satisfied. On January 29, 2008, the Third

Circuit dismissed the appeal for lack of jurisdiction because the appeal was filed two

hundred and thirty-five days after the denial of his habeas petition, rather than within

thirty days of that denial as required by FED.R.APP.P. 4(a)(1)(A). 

In his motion for Rule 60(b) relief, Kerns claims that he did not receive a copy of

my December 19, 2006 Order denying his petition until July 5, 2007, long after the time

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 3 of 11
 At issue in Gonzalez v. Crosby was the question whether a petitioner could utilize Rule

4

60(b) to challenge the district court’s ruling dismissing a habeas petition under 28 U.S.C. § 2254

on statute of limitations grounds. 545 U.S. at 526. The Supreme Court concluded that

petitioner’s Rule 60(b) motion was not the equivalent of a successive habeas petition because the

motion attacked a defect in the integrity of the federal habeas proceedings, and did not present a

“claim” for habeas relief. Id. at 532-36. As a result, the Court held that the district court could

rule on the Rule 60(b) motion and address the statute of limitations question without prior

authorization by the court of appeals. Id. at 536-38. However, the Court cautioned that “[u]sing

Rule 60(b) to present new claims for relief from a state court’s judgment of conviction – even

claims couched in the language of a true Rule 60(b) motion – circumvents [Antiterrorism and

Effective Death Penalty Act of 1996]’s requirement that a new claim be dismissed unless it

relies on either a new rule of constitutional law or newly discovered facts.” Id. at 531 (citing 28

U.S.C. § 2244(b)(2)). 

 In Pridgen v. Shannon, the court noted that, by enacting the AEDPA, Congress intended 5

to limit the ability of a prisoner to file “an endless stream of habeas petitions,” and held that

“when the Rule 60(b) motion seeks to collaterally attack the petitioner’s underlying conviction,

the motion should be treated as a successive habeas petition. 380 F.3d at 727. The court further

held that petitioner’s claims “that the state court erred in its determination that his second PCRA

petition was untimely” and “that the state court lacked jurisdiction to rule that the claims raised

in his second PCRA petition had been waived” must be considered successive habeas corpus

claims. Id. 

4

to appeal expired, despite his writing twice to counsel requesting status. Kerns argues

that habeas counsel effectively abandoned him after representing that counsel would file

an appeal of the denial of the petition. 

The Supreme Court of the United States and the Court of Appeals for the Third

Circuit have ruled that a Rule 60(b) motion to vacate a judgment denying a habeas corpus

petition under 28 U.S.C. § 2254 is construed as a second or successive habeas petition

where the Rule 60(b) motion seeks to challenge the underlying state conviction. See

Gonzalez v. Crosby, 545 U.S. 524 (2005); Pridgen v. Shannon, 380 F.3d 721 (3d Cir.

4

2004). In contrast, “in those instances in which the factual predicate of a petitioner’s 5

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 4 of 11
5

Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured

and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the

merits.” Pridgen, 380 F.3d at 727.

A Rule 60(b) motion will be considered a second or successive habeas corpus

petition where “it 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.” Gonzalez, 545 U.S. at 532 (emphasis in original;

footnote omitted). “A determination that the Rule 60(b) motion was in essence a second

or successive habeas petition means that under AEDPA the District Court d[oes] not have

jurisdiction to entertain the motion [unless the petitioner is authorized by the court of

appeals] to file a successive habeas petition.” Pridgen, 380 F.3d at 725 (citing 28 U.S.C.

§ 2244(b)). 

A review of the arguments that Kerns presents in his Rule 60(b) motion quells any

suspicion that this motion is in essence a second or successive habeas petition. He argues

that: (1) habeas counsel’s affirmative misrepresentation that he would file an appeal of

the denial of habeas relief constitutes an extraordinary circumstance sufficient to justify

re-opening the time to file an appeal; (2) habeas counsel’s misrepresentation that he

would file an appeal of the denial of habeas relief constitutes an extraordinary

circumstance sufficient to justify vacating the December 19, 2006 Order and re-entering

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 5 of 11
 This argument is identical to the first argument. 6

6

it; (3) habeas counsel’s misrepresentation that he would file an appeal of the denial

constitutes an extraordinary circumstance sufficient to justify vacating the August 28,

2007 Order denying the motion to re-open; (4) the issues in this case will be insulated 6

from judicial review because of the abandonment and affirmative misrepresentation of

habeas counsel that he would file an appeal of the Order denying habeas relief; (5) the

issue involved in this case involves whether petitioner’s plea was his personal and

voluntary decision not induced by promises or threats; (6) the habeas involved in this case

involves whether the state court decision was “contrary to” clearly established federal law

and if it were not, whether the state court judgment rests upon an unreasonable

application of the facts adduced at trial; and (7) the appeal involved whether the court

erred in denying habeas corpus relief where petitioner’s plea was clearly unlawfully

induced. 

These arguments do not support a finding that Kerns’ Rule 60(b) motion is the

equivalent of a successive habeas petition. He neither presents new claims for relief from

the state court’s judgment of conviction, nor attacks my previous resolution of a claim on

the merits. See Gonzalez, 545 U.S. at 532-36. Instead, Kerns attempts to explain his

failure to file an appeal and to give an indication of what an appeal would include if he

were permitted to file one. Thus, I may consider the merits of the motion, free from

potential AEDPA concerns. Pridgen, 380 F.3d at 727. 

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 6 of 11
7

Kerns insists that his failure to file an appeal of the Order denying his habeas

petition was not his fault but that of his habeas counsel, an extraordinary circumstance

justifying re-opening the time within which to file an appeal, or to vacate and re-enter the

Order denying the petition. This re-entry, he contends, would reset the time to file an

appeal. Although not axiomatic, Kerns argues that “the reasons stated above support

relief under Rule 60(b)(1).” See Document #25 at ¶ 14(h). Rule 60(b)(1) allows for

relief for mistake, inadvertence, surprise, or excusable neglect. The rule further provides

that such a motion must be made within a reasonable time, but no more than a year after

the entry of the judgment or Order from which a movant seeks relief. See Rule 60(c)(1) 

The arguments presented in this motion are substantially similar to the ones Kerns

presented in his earlier motion to re-open the time to file an appeal, i.e., his failure to file

a timely appeal rested on habeas counsel’s abandonment of him. See Document #18. I

considered those arguments at that time and denied the motion. See Document #21. 

There is one difference in the allegations of these two motions, however, which is worth

noting. In his earlier motion to re-open the time to file an appeal, Kerns contended that

habeas counsel sent him a copy of the Report & Recommendation and asked Kerns to

review it for potential objections. Kerns indicated that he immediately responded to

counsel requesting that objections be filed. See Document #18 at ¶ 4. He next contended

that he wrote to counsel twice asking for status of his case, but no response came. Id. at ¶

5. After directly contacting the court, Kerns received a copy of the Order denying his

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 7 of 11
 The petitioner had been informed that objections were due by November 22, 2006. 7

(Document #16). 

8

petition on July 5, 2007, long after the time within which to file an appeal expired. Id. at

¶ 6. Kerns never indicated that he had asked counsel to file an appeal or that counsel

affirmatively misrepresented that he would file an appeal on Kerns behalf. 

In his Rule 60(b) motion, however, Kerns emphatically insists that habeas counsel

represented to Kerns that he would file an appeal on Kerns’ behalf, which, of course, he

did not file. Notations in the chambers’ file of this case paint a slightly different picture

but do shed light on the situation. Counsel for Kerns sent a letter to chambers requesting

an extension of the time for filing objections to the Report & Recommendation, but did 7

not specify how much more time would be required. In keeping with chambers’

procedures, a member of my staff contacted counsel on November 27, 2006, to ask how

much more time he would need to file objections. Counsel responded that he could think

of no objections to the Report & Recommendation but that perhaps his client could. He

asked that the court refrain from ruling on the case for an “additional few days” to allow

his client an opportunity to compile some objections. Having heard nothing further, I

approved and adopted the Report & Recommendation on December 19, 2006. It is less

than conceivable that a seasoned attorney who had no objections to the Report &

Recommendation would have agreed to file an appeal. Thus, I view the allegations in the

Rule 60(b) motion with skepticism. 

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 8 of 11
9

Kerns’ only credible argument in support of the 60(b) motion was that he did not

receive notice of my Order denying his petition until the time to file an appeal had

expired. Rule 77(d)(2) of the Federal Rules of Civil Procedure provides that the lack of

notice of the entry of a judgment or Order does not affect the time for appeal or relieve –

or authorize the court to relieve – a party for failing to appeal within the time allowed,

except as allowed by Federal Rule of Appellate Procedure (4)(a). Rule 4(a)(1) requires

that appeals be filed “within 30 days after the date of entry of the judgment or Order

appealed from.” Rule 4(a)(5) allows the district court “upon a showing of excusable

neglect or good cause [to] extend the time for filing a notice of appeal upon motion filed

not later than 30 days after the expiration of the time prescribed by this Rule 4(a).” Under

Rule 4(a)(6), a party must establish that he did not receive notice pursuant to Rule 77(d)

of the Federal Rules of Civil Procedure. Moreover, the 4(a)(6) motion must be filed

within 180 days of the entry of judgment or within 7 days of the party’s receipt of notice,

whichever is earlier. 

While Kerns presented credible evidence that he had not received notice of the

entry of my Order denying his petition until July 5, 2007, he did not file the motion to reopen the time to file within the required seven days of July 5, 2007 or within the required

180 days of the entry of my Order dated December 19, 2006. See FED.R.APP.P. 4(a)(6). 

The rule in this circuit is clear: where the sole basis for a Rule 60(b) motion is a party’s

lack of notice, the motion must meet the time limitations of Rule 4(a). See Hall v. Cmty.

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 9 of 11
10

Mental Health Ctr., 772 F.2d 42, 44 (3d Cir. 1985). In West v. Keve, the Third Circuit

was presented a similar issue regarding the use of Rule 60(b) to vacate and re-enter final

judgments. 721 F.2d 91 (3d Cir. 1983). In that case, the appellant moved the district

court under Rule 60(b) to reinstate an earlier judgment and essentially revive his time for

appeal, which had lapsed according to the limitations of Rule 4(a). Id. at 96. The court

held that Rule 4(a), being more specific to the appellate process than Rule 60(b), should

control the timing of the filing of appeals, especially in view of the fact that allowing the

use of Rule 60(b) to circumvent the constraints of Rule 4(a) could have the effect of

nullifying Rule 4(a)(5) altogether. Id. The court also noted that in Griggs v. Provident

Consumer Discount Co., 459 U.S. 56 (1982), the Supreme Court of the United States held

that “the requirement of timely notice of appeal is ‘mandatory and jurisdictional.’” 459

U.S. at 61. Finally, the court held “that because the avowed purpose of the Rule 60(b)

motion in this case was to extend the time for appeal, it had to meet the time limitations of

Rule 4(a).” West v. Keve, 721 F.2d at 97. As noted above, Kerns failed to meet the time

limitations of Rule 4(a). Accordingly, I must deny the Rule 60(b) motion. 

An appropriate Order follows.

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SCOTT NEWTON KERNS, : CIVIL ACTION

Petitioner :

:

v. : NO. 05-1794

:

EDWARD KLEM, et al., :

Defendants :

O R D E R

STENGEL, J.

AND NOW, this 30th day of June, 2008, upon consideration of the

plaintiff’s motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of

Civil Procedure (Document #25), IT IS HEREBY ORDERED that the motion is

DENIED in its entirety.

The Clerk of Court is directed to mark this case closed for all purposes.

BY THE COURT:

 /s/ Lawrence F. Stengel 

LAWRENCE F. STENGEL, J. 

Case 2:05-cv-01794-LS Document 26 Filed 06/30/08 Page 11 of 11