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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN HOGAN, : CIVIL ACTION

: NO. 04-957

Petitioner, :

:

v. :

:

FRANK D. GILLIS, et al., :

:

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. September 16, 2022

I. INTRODUCTION 

Petitioner Kevin Hogan brings a Rule 60(b) motion to reopen 

habeas corpus proceedings. The Commonwealth argues that the 

Court lacks jurisdiction over Petitioner’s motion, as it is 

really a second or successive petition disguised as a Rule 60(b) 

motion and should have properly been filed with the Third 

Circuit Court of Appeals. The Court agrees with the Commonwealth 

and denies Petitioner’s motion without prejudice, so that he can 

properly bring this petition to the Third Circuit Court of 

Appeals under 28 U.S.C. § 2244(b)(3).

II. BACKGROUND

Petitioner was convicted of first-degree murder and related 

offenses in the Court of Common Pleas in Montgomery County, 

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Pennsylvania, in 1995. Pet’r’s Mot. to Reopen Pet. for Writ of 

Habeas Corpus ¶¶ 3, 10, ECF No. 30 (Pet’r’s Mot.). Petitioner 

appealed his conviction unsuccessfully, filed multiple PCRA 

petitions, and eventually filed a federal habeas corpus petition 

in 2004. Pet’r’s Mot. ¶¶ 12-23. The Court adopted Magistrate 

Judge Scuderi’s Report and Recommendation denying Petitioner’s 

Motion as untimely. Mem. Op. (May 31, 2005), ECF No. 13. 

Petitioner then filed another PCRA petition in September 2016, 

alleging that he was entitled to relief on the basis of newly 

discovered evidence. Pet’r’s Mot. ¶¶ 26-27. 

At his criminal trial for murder, “Petitioner’s defense was 

that he shot [the victim] in self defense because he thought 

that [the victim] and Robert Hall . . . were going to shot [sic] 

him for hanging around the bar.” Pet’r’s Mot. ¶ 50. In his 

current motion to the Court, brought under Rule 60(b)(2) and 

(b)(6), Petitioner points to allegedly new evidence supporting 

this prior self-defense claim.

First, Petitioner claims that Hall “falsely told the police 

that the person who shot his uncle had previously threatened to 

kill his uncle” because Hall thought doing so would “get [the 

police] off his back about allegedly being a ‘hitman.’” Pet’r’s

Mot. ¶¶ 60-61; see also id., Ex. B (Aff. of Pierre L. Pinson), 

at 1. Petitioner also raises new evidence from an eyewitness 

that he learned of while in prison, who claimed to have seen the 

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shooting and seen the victim in possession of “what looked like 

a gun.” Pet’r’s Mot. ¶¶ 27-30; see also id., Ex. A (Aff. of 

Dorian Mathis), at 4.

III. LEGAL STANDARD

At issue here is the interaction of the Federal Rules of 

Civil Procedure and the Antiterrorism and Effective Death 

Penalty Act--specifically Rule 60(b) and 28 U.S.C. § 2244.

Under Rule 60(b)(2), which applies to all civil actions, a 

party may move for relief from a final judgment on the basis of 

“newly discovered evidence that, with reasonable diligence, 

could not have been discovered in time to move for a new trial 

under Rule 59(b).” Fed. R. Civ. P. 60(b)(2).

To obtain relief under subsection (b)(6), the catch-all 

category for reopening a judgment under Rule 60(b), a petitioner 

must show that “extraordinary circumstances” are present to 

justify disturbing a final judgment. Gonzalez v. Crosby, 545 

U.S. 524, 535 (2005) (quoting Ackermann v. United States, 340 

U.S. 193, 199 (1950)). “This last option is available only when 

Rules 60(b)(1) through (b)(5) are inapplicable.” Kemp v. United 

States, 142 S. Ct. 1856, 1861 (2022) (citing Liljeberg v. Health 

Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988)). 

Extraordinary circumstances have included “expert testimony 

linking [Defendant’s] race to violence” such that a defendant 

“may have been sentenced to death in part because of his race,” 

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Buck v. Davis, 137 S. Ct. 759, 772, 778 (2017), or a subsequent

change in governing law, Gonzalez, 545 U.S. at 531. In 

considering whether extraordinary circumstances exist, the court 

may look to “the risk of injustice to the parties in the 

particular case, the risk that the denial of relief will produce 

injustice in other cases, and the risk of undermining the 

public’s confidence in the judicial process.” Liljeberg, 486 

U.S. at 864.

Under 28 U.S.C. § 2244, which applies specifically to 

habeas proceedings, a district court only has jurisdiction to 

review a second or successive petition if the petitioner has 

first obtained an order from the appropriate court of appeals, 

here the Third Circuit, authorizing the district court to 

consider the application. 28 U.S.C. § 2244(b)(3)(A). The Third 

Circuit Court of Appeals, not this Court, has jurisdiction to

determine whether the petitioner’s claim meets the requirements 

of § 2244(b)(2) such that the claim can avoid mandatory 

dismissal as a second or successive petition. See Berry v. 

Kauffman, 208 F. Supp. 3d 676, 681 (E.D. Pa. 2016). 

By contrast, when a petition attacks “not the substance of 

the federal court’s resolution of a claim on the merits, but 

some defect in the integrity of the federal habeas proceedings,” 

such as a fraud on the habeas court, it is properly brought as a 

Rule 60(b) motion and can be heard by a district court without 

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precertification by a court of appeals. Gonzalez, 545 U.S. at

532 & n.5.

IV. DISCUSSION

Petitioner’s motion cannot rightly be considered a Rule 

60(b)(2) motion, as he requests relief on the basis of allegedly 

new facts underlying a claim that he brought in his initial 

habeas petition. Petitioner contests the integrity of the state 

criminal proceedings, rather than the federal habeas 

proceedings, by alleging that a key witness, Robert Hall, 

committed perjury on the stand. Pet’r’s Mot. Ex. B, at 46-47. He 

also alleges that there is a new eyewitness to testify on his 

behalf who was not known at the time of trial or in the 

appropriate time to move for a new trial, as such witness had 

his own “troubles” and “did not want to see any court house.” 

Pet’r’s Mot. Ex. A, at 43. These new allegations are thus 

related to Petitioner Hogan’s original claims for relief on the 

basis of ineffective assistance of counsel in presenting a 

defense such as voluntary intoxication or self-defense that 

would negate the specific intent required for first-degree 

murder. See Pet’r’s Mot. ¶¶ 50, 104, 112; see also United States 

v. Santarelli, 929 F.3d 95, 105 (3d Cir. 2019) (“[A] Rule 60(b) 

motion that raises a claim attacking the underlying criminal 

judgment must be a second or successive petition . . .” (quoting 

Blystone v. Horn, 664 F.3d 397, 413 (3d Cir. 2011))).

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Furthermore, Petitioner does not show “extraordinary 

circumstances” that would justify reopening these proceedings. 

Rather, his petition, even viewed under 60(b)(6), still 

“reassert[s] claims of error in the state conviction” and 

accordingly must be treated as a successive habeas petition. 

Waliyud-Din v. Att’y Gen. Pa., No. 10-5851, 2020 WL 6262982, at 

*2 (E.D. Pa. Oct. 23, 2020).

V. CONCLUSION

Under the conditions that Petitioner presents here, by 

raising “newly discovered evidence” to challenge the underlying 

criminal proceedings, the “use of Rule 60(b) would impermissibly 

circumvent the requirement that a successive habeas petition be 

precertified by the court of appeals as falling within an 

exception to the successive-petition bar.” Gonzalez, 545 U.S. at 

532 (citing 28 U.S.C. § 2244(b)(3)). This is because 

“§ 2244(b)(2)(B) requires a more convincing factual showing than 

does Rule 60(b).” Id. at 531.

Accordingly, Petitioner’s motion is denied without 

prejudice so that he may properly file his motion with the Court 

of Appeals for the Third Circuit. An appropriate order follows.

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