CLD-285                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 18-1964
                                     ____________

                                GREGORY S. BURKE,
                                            Appellant
                                       v.

                SECRETARY PENNSYLVANIA DEPARTMENT OF
                 CORRECTIONS; THE DISTRICT ATTORNEY OF
                  PHILADELPHIA COUNTY; THE ATTORNEY
                 GENERAL OF THE STATE OF PENNSYLVANIA
                     __________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Civ. No. 2-18-mc-00064)
                          District Judge: Jeffrey L. Schmehl
                      __________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 or
      Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)
                                     August 9, 2018

       Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges

                            (Opinion filed: August 29, 2018)
                                    ____________

                                      OPINION*
                                     ____________


PER CURIAM

      Gregory S. Burke appeals from an order of the District Court denying his Rule

60(b)(6) motion. For the reasons that follow, we will summarily affirm.

      Burke, a Pennsylvania state prisoner, pleaded guilty to felony murder in the

Philadelphia Court of Common Pleas, apparently shortly after his trial began. In 1987, he

was sentenced to a mandatory term of life imprisonment and concurrent terms of
imprisonment of 10-20 years for robbery and 2½-5 years for possessing an instrument of

crime. The Pennsylvania Superior Court affirmed the judgment of sentence for felony

murder but vacated Burke’s sentence for robbery and also remanded the matter for

resentencing on Burke’s criminal conspiracy conviction. Burke filed a petition for

allowance of appeal. On August 3, 1993, the Pennsylvania Supreme Court denied the

petition. 1 Thereafter, Burke sought relief four times, unsuccessfully, under

Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9542, et

seq.

       In 2015, Burke filed two state petitions for writ of habeas corpus, which were

treated as a single new PCRA petition. The petitions were based on newly discovered

evidence of innocence. Specifically, Burke contended that a Commonwealth witness

committed perjury at trial because newly obtained records indicated that the witness was

incarcerated at the time that he testified that he heard Burke’s confession outside of

prison. The PCRA petition was dismissed as untimely filed. The Superior Court

affirmed, concluding that Burke failed to establish that he filed his PCRA petition within

60 days of the date that he learned of the new evidence, as required to establish timeliness

under 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(ii) & (2), see Commonwealth v. Burke, 

(Pa. Super. Ct. Dec. 27, 2016). Burke then filed another PCRA petition,

which was denied on August 21, 2017. He appealed to the Superior Court, see

Commonwealth v. Burke, No. 3216 EDA 2017, but then applied to withdraw his appeal.

On March 28, 2018, the Superior Court granted his application and the appeal was

withdrawn, 

January 11, 1994, the trial court sentenced Burke to a concurrent term of 5-10 years’
imprisonment on the charge of criminal conspiracy.
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       Meanwhile, on March 19, 2018, Burke filed a motion for Rule 60(b)(6) relief in

the United States District Court for the Eastern District of Pennsylvania. In it he sought

review of the August 21, 2017 denial by the state trial court of his latest PCRA petition

and review of his “conviction on April 20, 1987.” Burke specifically argued that,

because he is actually innocent, the U.S. Supreme Court’s decision in McQuiggin v.

Perkins, 

(2013), should act as a gateway through which his claims may be

addressed on the merits. He further alleged that all counsel had been ineffective in

defending his rights; that the Commonwealth withheld evidence of its witness James

Spencer’s prior record; and that the Commonwealth suppressed records that may have

supported a defense of diminished capacity. In an order entered on April 12, 2018, the

District Court dismissed Burke’s motion on the ground that Rule 60(b) did not give

federal courts jurisdiction to grant relief from the judgment of a state PCRA court.

       Burke filed a motion for reconsideration and a notice of appeal. In his motion for

reconsideration, Burke contended that the District Court misconstrued his petition as an

attempt to vacate the PCRA court’s order of dismissal; it was instead an attempt to have

review of his actual innocence argument. In an order entered on May 11, 2018, the

District Court denied Burke’s motion for reconsideration, concluding that he had not met

the standard for reconsideration.

       We have jurisdiction under 28 U.S.C. § 1291. 2 Our Clerk granted Burke leave to

appeal in forma pauperis and advised him that the appeal was subject to summary


2
  Burke did not file a new or amended notice of appeal within the time required once his
motion for reconsideration was denied, see Fed. R. App. P. 4(a)(4)(B)(ii), but the order
denying the motion for reconsideration did not decide any new issues, see Carrascosa v.
McGuire, 

, 254 (3d Cir. 2008) (where no amended notice of appeal is timely
filed Court lacks jurisdiction to review “any arguments raised for the first time” in motion
for reconsideration).
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dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary action under Third Cir. LAR 27.4

and I.O.P. 10.6.

       We will summarily affirm the orders of the District Court denying Burke’s Rule

60(b)(6) motion and denying reconsideration because no substantial question is presented

by this appeal, Third Cir. LAR 27.4 and I.O.P. 10.6. Rule 60(b) provides litigants with a

mechanism by which they may reopen a final judgment in a habeas corpus case brought

pursuant to 28 U.S.C. § 2254 “under a limited set of circumstances including fraud,

mistake, and newly discovered evidence.” Gonzalez v. Crosby, 

, 528

(2005). It does not, as the District Court held and as Burke appears to understand,

authorize federal courts to directly review an order of a state post-conviction court. As

Burke argued, we held in Satterfield v. District Attorney of Phildelphia, 

,

160-61 (3d Cir. 2017), that McQuiggin affected a change in our decisional law and, when

accompanied by a showing of extraordinary circumstances, may properly serve as the

basis of a Rule 60(b)(6) motion. Burke, however, does not allege nor does it appear that

he has ever pursued a § 2254 habeas corpus petition. There is, in short, no final § 2254

judgment to reopen and thus no basis for a Rule 60(b)(6) motion. Accordingly, summary

affirmance of the District Court’s orders is proper.

       Burke’s conviction became final 90 days after the Pennsylvania Supreme Court

denied his petition for allowance of appeal, or on November 1, 1993. See Kapral v.

United States, 

, 570 (3d Cir. 1999); U.S. Sup. Ct. R. 13. There is a one-year

deadline for filing a § 2254 petition, 28 U.S.C. § 2244(d)(1), and thus the deadline for

Burke to file a § 2254 petition expired long ago. Moreover, although in the case of newly

discovered evidence the one-year limitation period begins to run on “the date on which

the factual predicate of the claim or claims presented could have been discovered through
                                              4
the exercise of due diligence,” 

2244(d)(1)(D), Burke’s allegedly new evidence

was the subject of his 2015 state petitions. McQuiggin, however, focused on the

fundamental miscarriage of justice exception, a doctrine that had previously been applied

to allow a habeas corpus petitioner “to pursue his constitutional claims ... on the merits

notwithstanding the existence of a procedural bar to relief” where the petitioner makes “a

credible showing of actual 

(internal quotation marks

removed). The Supreme Court clarified that the fundamental miscarriage of justice

exception would also permit a federal habeas petitioner to overcome a petition that failed

to comply with the statute of limitations, § 2244(d)(1). That is, if a petitioner asserting

actual innocence persuades the District Court that, “in light of the new evidence, no juror,

acting reasonably, would have voted to find him guilty beyond a reasonable doubt,

Schlup v. Delo, 

, 329 (1995), McQuiggin will act as a gateway through

which his untimely constitutional claims may be addressed on the merits.

       If, as it appears, Burke has never before filed a § 2254 petition in federal district

court challenging his conviction and sentence, McQuiggin may thus provide a basis for

him to proceed, not by filing a Rule 60(b)(6) motion as he did here, but by filing in the

District Court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the

required standard § 2254 form and including in the petition all of the information

required by the standard form. We express no view whatever on the merits of any actual

innocence arguments Burke has or may make except to note that “[c]onsidering a

petitioner’s diligence, not discretely, but as part of the assessment whether actual

innocence has been convincingly shown” bears on the determination whether the

petitioner has made the required showing under Schlup. 

.


                                              5
      For the foregoing reasons, we will summarily affirm the orders of the District

Court denying Burke’s Rule 60(b)(6) motion and motion for reconsideration.




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