Bracey v. Lamas

            IN THE UNITED STATES DISTRICT COURT                          
          FOR THE MIDDLE DISTRICT OF PENNSYLVANIA                        

WILLIAM BRACEY,                 :  CIVIL ACTION NO. 3:11-CV-2329          
                               :                                         
              Petitioner       :  (Judge Conner)                         
                               :                                         
         v.                    :                                         
                               :                                         
MARIROSA LAMAS, et al.,         :                                         
                               :                                         
              Respondents      :                                         

                        MEMORANDUM                                       

    This is a habeas corpus case filed pursuant to 

.  Petitioner, 
William Bracey, seeks to vacate his 1995 conviction and sentence for first-degree 
murder in the Dauphin County Court of Common Pleas based on the           
Commonwealth’s alleged failure to disclose relevant impeachment evidence as 
required by Brady v. Maryland, 

 (1963) and its progeny.  The petition was 
dismissed as untimely in 2012, but Bracey moved to reopen the case in 2015 
pursuant to Federal Rule of Civil Procedure 60(b)(6).  Our late colleague, United 
States District Judge Edwin M. Kosik, denied the motion on February 5, 2016.  
Bracey appealed, and on January 20, 2021, the United States Court of Appeals for 
the Third Circuit vacated and remanded for further consideration of Bracey’s Rule 
60(b)(6) motion, concluding that the court abused its discretion by failing to 
consider the impact of Dennis v. Sec’y, Pa. Dep’t of Corrs., 

 (2016) (en 
banc) on the timeliness of Bracey’s petition.  The case was reassigned to the 
undersigned on remand.  We will deny Bracey’s Rule 60(b)(6) motion.       
I.   Factual Background & Procedural History                              

    On June 8, 1994, Houston Sims was shot to death at the intersection of 18th 
Street and Regina Street in Harrisburg, Pennsylvania.  Sims, who was in his car at 
the time he was shot, continued to drive his car for two blocks before crashing his 
car into a house at the intersection of 16th Street and Regina Street.  Bracey was 
charged with first-degree murder and third-degree murder arising from Sims’s 
death.                                                                    
    Trial commenced on May 15, 1995, in the Dauphin County Court of Common 
Pleas.  (Doc. 45-1 at 2).1  The first witness called to testify was Milagros Torres, a 
former resident of Harrisburg who resided at the intersection of 18th and Regina on 

the night that Sims was killed.  Torres testified that she was in her bedroom when 
she heard a “pop, pop, like a gun.”  (Id. at 29).  She immediately looked out her 
window and saw a young man shooting a gun into a car.  (Id.)  She then watched as 
the young man walked over to a bicycle that was parked by a nearby mailbox and 
rode the bicycle away.  (Id. at 30).                                      
    Torres called the police and went down to the street.  (Id. at 32).  Observing 

that police officers were looking for spent shell casings from the shooting, she 
informed the officers where the shooting had occurred.  (Id. at 33).  The officers 
searched that spot and found shell casings exactly where Torres said they would.  
(Id.)  Torres testified that she recognized the shooter as someone who she 

    1 For ease of reference, we will use the CM-ECF page numbers appended to 
the top of the page on the court’s public electronic docket when referencing the 
transcript of Bracey’s trial.                                             
frequently observed “hanging around” the mailbox at 18th and Regina.  (Id. at 34).  
She identified Bracey as the shooter in a photo lineup shortly after the shooting and 
identified him in court during trial.  (Id. at 34-36).                    

    Jacqueline Jackson testified that she was sitting on the front steps of her 
friend’s house at 18th and Regina on the night Sims was killed.  (Id. at 60).  She 
heard gunshots coming from Regina Street.  (Id. at 64).  She looked over and saw 
someone shooting a gun into a car.  (Id. at 65).  The car began to drive away, but the 
shooter walked behind the car and continued to shoot at it.  (Id. at 66).  Jackson 
testified that she knew Bracey as a friend of her boyfriend, Sylvester Bell, and that 
Bracey was the person she saw shooting at the car.  (Id. at 56-57, 66).   

    Jackson testified that after the shooting, Bracey walked over to the steps 
where she and her friends were sitting.  (Id. at 67).  Jackson asked Bracey why he 
had been shooting at the car and Bracey stated that the driver of the car had taken 
drugs from him.  (Id. at 68-69).  Jackson testified that she talked to Bracey for 2-3 
minutes after the shooting.  (Id. at 69).  She also testified that a man she knew by 
the nickname “Tee-Tee” was present at 18th and Regina that night.  (Id. at 71-72). 

    During her testimony, Jackson acknowledged that her boyfriend, Sylvester 
Bell, was in jail facing criminal drug charges and that she was motivated to testify 
because she thought her testimony might help Bell.  (Id. at 58).  She also 
acknowledged that she and Bell had a child together.  (Id. at 73).        
    The court next heard testimony from Thomas Plummer, Jr.2  Plummer    
testified that he goes by the nickname “Tee-Tee” and that he and Bracey had 
known each other for twelve years at the time of trial.  (Id. at 75).  Plummer 

acknowledged that he had pending criminal charges for unlawful carrying of 
firearms, possession of narcotics with intent to deliver, unlawful delivery of cocaine, 
and aggravated assault.  (Id. at 76).  He further acknowledged that he had agreed to 
a negotiated plea with the Commonwealth whereby he would receive a sentence of 
4-12 years imprisonment on the drugs and firearm charges and that the aggravated 
assault charge would be dismissed.  (Id.)                                 
    Plummer testified that he, Bracey, and another man named William Hinton, 

who went by the nickname “Eggie,” were at 18th and Regina on the night of Sims’s 
death drinking beer.  (Id. at 81).  Plummer testified that Bracey was selling drugs 
that night.  (Id.)  As they were sitting there, a car pulled up, Bracey went to the car, 
and Plummer saw the driver of the car reach down under his seat.  (Id. at 83-84).  
Plummer then saw the driver’s “hand come up to the window . . . [l]ike he was going 
for something.”  (Id. at 85).  The car started to drive away, at which point Plummer 

heard gunshots.  (Id.)  Bracey ran towards the car.  (Id. at 87).  As Bracey was 
running, Plummer heard more shots.  (Id.)  The car continued down Regina Street.  
(Id. at 88).  Plummer walked down Regina Street and saw that the car had crashed 
into a house.  (Id.)                                                      

    2 Thomas Plummer, Jr. and his father, Thomas Plummer, Sr., both testified 
as witnesses in Bracey’s trial.  The court will refer to Thomas Plummer, Jr. as 
“Plummer” and Thomas Plummer, Sr. as “Plummer, Sr.”                       
    Plummer did not see Bracey again on the night of Sims’s death, but he 
testified that he saw Bracey again a day or two after the shooting.  (Id.)  Bracey told 
Plummer that the driver of the car had reached out like he wanted to take 

something from Bracey and that Bracey fired his gun for that reason.  (Id. at 89).  
Bracey told Plummer that he had seen a gun in the car.  (Id.)  Plummer never 
observed Sims holding a gun and did not observe a gun in Sims’s car.  (Id. at 90).  
Plummer testified that he saw Bracey again at the home of a mutual acquaintance 
named Rinell Sanford some days after the shooting.  (Id. at 91).  On cross-
examination, Bracey’s counsel pressed Plummer on how much alcohol he had  
consumed on the night of the murder.  (Id. at 100-01).  Plummer testified that he 

had consumed two 22-ounce bottles of beer but that he was not drunk.  (Id. at 101). 
    The Commonwealth’s next witness was Sylvester Bell.  Bell testified that he 
was incarcerated in Dauphin County Prison at the time of trial on pending charges 
of delivery or possession with intent to deliver cocaine.  (Id. at 104).  Bell 
acknowledged that he had reached a plea agreement in exchange for his testimony: 
    Q.   Now as part of your testifying here today your attorney and the 
    District Attorney’s Office worked out a plea agreement for you to come 
    and testify.  Is that right?                                         
    A.   Yeah.                                                           
    Q.   And as part of that plea agreement you are going to plead guilty 
    to the charges that you have against you, and you are going to receive a 
    sentence of 2 to 4 years in jail, and if you are eligible, you would receive 
    what is known as the Boot Camp program.  Is that correct?            
    A.   Yeah.                                                           

(Id. at 105).                                                             
    Bell testified that he had known Bracey since they were in middle school 
together.  (Id. at 106).  On the night of Sims’s death, Bell was at the intersection of 
16th Street and Market Street when his girlfriend, Jacqueline Jackson, contacted 
him on his beeper and told him to come to 18th and Regina.  (Id.)  On his way to 
18th and Regina, Bell observed Sims’s car crashed into a house at 16th and Regina.  

(Id.)  When he got to 18th and Regina, he saw Jackson and Bracey there, though he 
and Bracey did not speak that night.  (Id. at 107-08).                    
    Sometime shortly after the shooting, Bell saw Bracey and Plummer at Rinell 
Sanford’s home at the intersection of 18th Street and Park Street.  (Id. at 108).  
While they were at Sanford’s home, Bracey stated that he shot the driver of the car 
that had crashed at 16th and Regina because the driver had stolen some cocaine 
from him.  (Id. at 109).                                                  

    The court next heard testimony from four law enforcement officials who were 
involved in the investigation of Sims’s death.  Leroy Lucas, an officer with the 
Harrisburg Police Department’s forensic unit, testified that he observed two bullet 
holes in the trunk of Sims’s car and that he found five spent shell casings at the 
intersection of 18th and Regina.  (Id. at 129-31).  Lucas testified that the gun used to 
shoot Sims was never found and that no guns or drugs were found in Sims’s car.  

(Id. at 151, 154).                                                        
    Alfredo Rivera, an officer with Harrisburg Police Department’s K-9 patrol 
unit, testified that he was one of the first officers to respond to the scene of the car 
crash at 16th and Regina.  (Id. at 156).  Rivera testified that when he arrived at the 
scene, Sims was in the car and the owner of the house at which the car had crashed 
was present, but no other individuals were present.  (Id. at 157).        
    Dr. Wayne Ross, a forensic pathologist employed by Dauphin County,   
testified as to the autopsy that he performed on Sims’s body.  (Id. at 161-63).  Dr. 
Ross identified three gunshot wounds on Sims’s body: one to the left back side of 

the head, one to the back of the left shoulder, and one to the left mid back.  (Id. at 
164-65).  The autopsy revealed the presence of cocaine in Sims’s blood and urine, 
though Dr. Ross testified that the level of cocaine in Sims’s blood was .037 
milligrams per liter, which is a “low level of cocaine” that indicated that “he had 
most probably ingested cocaine hours before his death.”  (Id. at 166-67).  Dr. Ross 
recovered two bullets from inside Sims’s body while performing the autopsy, but he 
was not able to find the bullet that caused the shoulder wound.  (Id. at 167-69).  Dr. 

Ross testified that the wounds on Sims’s head and back were caused by “distant” 
gunshots, meaning that the gun was fired from at least 3-4 feet away.  (Id. at 168-70).  
Dr. Ross concluded that the cause of Sims’s death was “multiple gunshot wounds to 
the head and the back,” (id. at 171), and that cocaine played no factor in Sims’s 
death.  (Id. at 176).                                                     
    James F. Rottmund, a corporal with the Pennsylvania State Police who the 

court admitted as a firearms expert, testified as to his examination of the bullets and 
cartridges found at the scene of the shooting.  (Id. at 178-83).  Rottmund testified 
that in his opinion all of the cartridge cases that were recovered from the scene had 
been fired by the same gun.  (Id. at 195).                                
    At the conclusion of the law enforcement officials’ testimony, the court heard 
testimony from Thomas Plummer, Sr.  (Id. at 223).  Plummer, Sr. testified that he 
spoke with Bracey after Sims’s death while Bracey was detained in Dauphin 
County Prison.  (Id. at 224).  Plummer, Sr. had come to the prison to visit Thomas 
Plummer, Jr., who was also incarcerated in the prison at the time.  (Id.)  While 
speaking with Bracey in the prison, Plummer, Sr. told Bracey to let him know if 

there was anything he could do to help.  (Id. at 224).  Because visiting hours in the 
prison were about to end for the day, however, Plummer, Sr. told Bracey to write 
him a letter.  (Id. at 224-25).                                           
    Plummer, Sr. subsequently received a letter that was purportedly sent by 
Bracey from Dauphin County Prison.  (Id. at 226-27).  After receiving the letter, 
Plummer, Sr. accidentally gave the letter to Plummer, Jr.’s defense attorney as part 
of a bundle of documents related to Plummer, Jr.’s pending criminal case.  (Id. at 

228-29).  Plummer, Jr.’s attorney promptly turned the letter over to the Dauphin 
County District Attorney’s office.  (Id. at 229).  Plummer, Sr. attempted to get the 
letter back, but Plummer, Jr.’s attorney explained that the letter could not be 
returned.  (Id.)                                                          
    Plummer, Sr. testified to the contents of the letter as follows:     
    Q:   Could you read the letter to us, what it says?                  

    A:   Received  April  12,  1995,  District  Attorney’s  Office,  Dauphin 
    County.  Context of the letter.  What is up, Pop?  What is going on out 
    there?  Here is how I am going to do this thing.  I was chilling, right, and 
    a car pulled up, talking about, I sold him some bad shit.  And I told him 
    it wasn’t me.  And he started talking about what he was going to do to 
    me and how he was going to kill me, and started going under his seat.  
    So I pulled out the gun and started shooting at the car and I couldn’t 
    stop.  How does that seem to you?  I need to know what to put on and 
    take off, but it is going to be something like that.  I am going to tell them 
    I don’t want to go down on the 6th because I need time to look this case 
    over, but if it goes down like this, all I can do is voluntary manslaughter, 
    killing in the heat of passion following serious provocation or killing 
    under justified circumstances.  Pops, I am doing all bits of homework.  I 
    am trying to get a little five to ten, do half my time, like about three years, 
    and I will be in a halfway house and be out before you know it.      

(Id. at 233-34).  Plummer, Sr. acknowledged on cross-examination that he could not 
say with certainty that Bracey wrote the letter given that he had never seen 
Bracey’s handwriting before receiving the letter.  (Id. at 239).  The Commonwealth 
rested its case at the conclusion of Plummer, Sr.’s testimony.  (Id. at 244). 
    Bracey presented the testimony of only one witness in his case in chief, 
Thomas Plummer, Jr., whom Bracey re-called to the stand.  (Id. at 244).  Plummer 
testified that on the night of Sims’s death, he, Bracey, and Eggie were drinking beer 
and smoking marijuana.  (Id. at 245-46).  Plummer testified that all three individuals 
were drunk and high and that neither he nor Bracey would have been able to drive 
a car.  (Id. at 248-50).  Plummer also testified that he did not recall Bell being 
present for any statements that Bracey made at Rinell Sanford’s home in the days 
following Sims’s death and that Bell would not be telling the truth if he said that he 

was present for such statements.  (Id. at 251-52).                        
    On cross-examination, government counsel impeached Plummer with prior 
inconsistent statements in which Plummer did not mention Bracey being drunk or 
high on the night of Sims’s death and stated that he, Bracey, and Bell were all 
together at Sanford’s home following Sims’s death.  (Id. at 253-54).  Plummer 
reiterated on cross-examination that Bracey was the individual he had seen 

running after Sims’s car while he heard gun shots.  (Id. at 254-55).      
    At the conclusion of trial, the jury convicted Bracey of first-degree murder on 
May 23, 1995, and Bracey was sentenced to life in prison.  See Commonwealth v. 
Bracey, No. 1281 MDA 2017, 

, at *1 (Pa. Super. Ct. Apr. 20, 2018).  
Bracey appealed, and the Pennsylvania Superior Court affirmed the judgment of 
sentence on September 11, 1998.  Commonwealth v. Bracey, 

 (Pa. 

Super. Ct. Sept. 11, 1998).  Bracey challenged his conviction through two petitions 
for collateral relief under Pennsylvania’s Post-Conviction Relief Act (“PCRA”), both 
of which were denied.  See Bracey, 

, at *1.                
    In October 2010, Bracey’s sister was conducting independent research on 
Bracey’s case when she discovered that the Commonwealth had not disclosed all of 
the charges that had been pending against Plummer and Bell at the time they 
agreed to testify against Bracey.  See (Doc. 2 at 2); Bracey v. Superintendent 

Rockview SCI, 

 (3d Cir. 2021).  Bracey promptly filed a third PCRA 
petition on December 1, 2010, asserting that the Commonwealth violated his due 
process rights pursuant to Brady by failing to disclose all of Plummer and Bell’s 
charges.  See (Doc. 45-6); Commonwealth v. Bracey, No. 417 MDA 2011 (Pa. Super. 
Ct. Nov. 3, 2011).  The Court of Common Pleas dismissed the petition on January 25, 
2011, and Bracey appealed.  (See Doc. 45-6 at 4-5).                       

    While Bracey’s PCRA appeal was pending, he filed a petition for writ of 
habeas corpus in this district on October 4, 2011.  Bracey v. Lamas, No. 3:11-CV-
1823 (M.D. Pa. Oct. 4, 2011).  United States Magistrate Judge Thomas M. Blewitt 
recommended that the court dismiss the petition without prejudice for failure to 
exhaust state court remedies.  

 at Doc. 4.  Judge Kosik adopted the report and 
recommendation on October 31, 2011 and dismissed the petition without prejudice 
to Bracey’s right to refile the petition after he had exhausted state court remedies.  

 at Doc. 5.                                                            
    The Superior Court affirmed the dismissal of Bracey’s third PCRA petition 

on November 3, 2011.  (See Doc. 45-6).  Bracey promptly filed the instant petition on 
November 29, 2011, and the court received and docketed the petition on December 
16, 2011.  (Doc. 1).  Judge Blewitt recommended that the petition be dismissed as 
untimely.  (Doc. 12).                                                     
    Judge Kosik adopted the recommendation over Bracey’s objections on   
August 8, 2012, dismissing the petition as untimely.  (Doc. 15).  Judge Kosik 
reasoned that under the Anti-Terrorism and Effective Death Penalty Act    

(“AEDPA”), the one-year limitations period for Bracey’s petition began to run on 
October 12, 1998, the date on which his judgment of sentence became final by the 
conclusion of direct review.  (Id. at 6 (citing 

(d)(1)(A)).  Because the 
limitations period was statutorily tolled from March 30, 1999 to September 14, 2001 
Judge Kosik concluded that the petition needed to be filed no later than March 28, 
2002 to comply with the statute of limitations and that Bracey’s November 29, 2011 

petition was therefore untimely.  (Id.)                                   
    Bracey asserted that October 12, 1998, was not the correct starting point for 
the limitations period and that the limitations period instead began in October 2010, 
the date on which the factual predicate of his claim could have been discovered 
through the exercise of due diligence pursuant to 

(d)(1)(D).  (Id.)  
Judge Kosik rejected this argument, finding that “[t]he factual predicate to 
Petitioner’s Brady claim could have been discovered through the exercise of due 
diligence well before October of 2010.”  (Id. at 7).  Judge Kosik noted that Bracey 
was aware at the time of trial that both Plummer and Bell were testifying against 
him based on negotiated plea agreements and that both witnesses testified to their 

charges and agreements during trial.  (Id.)  Based on this fact, Judge Kosik 
concluded that Bracey “could have discovered the full extent of the deals and 
sentences prior to October 2010.”  (Id. at 8).  Judge Kosik additionally found that 
Bracey was not entitled to equitable tolling of the limitations period and 
accordingly dismissed the petition as untimely.  (Id. at 13).  Bracey sought leave to 
appeal, but both Judge Kosik and the Third Circuit declined to issue a certificate of 
appealability.  (Docs. 15, 21).                                           

     Three years later, the Third Circuit issued its en banc decision in Dennis, 
which clarified that “the concept of ‘due diligence’ plays no role in the Brady 
analysis.”  

.  Thus, defendants and defense counsel are “entitled to 
presume that prosecutors have ‘discharged their official duties,’” and are not 
obligated to “scavenge for hints of undisclosed Brady material when the   
prosecution represents that all such material has been disclosed.”  

 at 290 

(quoting Banks v. Dretke, 

 (2004)).  Any consideration of defense 
counsel’s diligence with respect to a Brady claim, the court held, is “an 
unwarranted dilution of Brady’s clear mandate.”  Id. at 293.              
     On November 3, 2016, Bracey moved to reopen the case pursuant to Federal 
Rule of Civil Procedure 60(b)(6) in light of the Third Circuit’s holding in Dennis.  
(Doc. 26).  Judge Kosik denied the motion on December 12, 2016 without discussing 
Dennis.  (Doc. 27).  Bracey appealed.  (Doc. 28).                         
    On appeal, a divided panel of the Third Circuit vacated and remanded for 
further proceedings on Bracey’s Rule 60(b)(6) motion.  Bracey, 

.  
The court noted that Dennis “effected a material change in Circuit law with respect 

to the reasonable expectations of a Brady claimant” by clarifying that a defendant 
“can reasonably expect—and is entitled to presume—that the government fulfilled 
its Brady obligations because the prosecution’s duty to disclose is absolute and in 
no way hinges on efforts by the defense.”  

.  Although “Dennis did not 
involve § 2244(d)(1)(D) directly and did not alter that provision’s requirement that a 
petitioner exercise ‘reasonable diligence in the circumstances,’” id. at 290 (quoting 

(d)(1)(D)), the case “materially altered what a petitioner in Bracey’s 

‘position would have reasonably expected.’”  

 (internal alterations omitted) 
(quoting Wilson v. Beard, 

 (3d Cir. 2005)).  Thus, the court held that 
in light of Dennis, “a habeas petitioner’s Brady claim is timely under § 2244(d)(1)(D) 
so long as it is filed within one year of the date on which the petitioner has reason to 
believe that the prosecution may have violated its duty of disclosure.”  Id. at 293. 
    Because Dennis “changed the relevant decisional law on which the dismissal 

of Bracey’s underlying habeas petition rested” and altered what a petitioner in 
Bracey’s position would have reasonably expected, the Third Circuit concluded that 
the district court should have analyzed the impact of Dennis prior to denying 
Bracey’s motion to reopen the case.  Id. at 294-98.  The court accordingly remanded 
the case for appropriate consideration of Bracey’s motion.3  Id. at 297-98. 
    Following remand, the case was reassigned to the undersigned on June 25, 

2021.  We appointed counsel to represent Bracey and scheduled an evidentiary 
hearing.  (See Docs. 36, 38, 40).  On February 16, 2022, Bracey’s counsel moved, with 
the concurrence of opposing counsel, to cancel the evidentiary hearing and to 
provide a stipulated factual record in lieu of a hearing.  (Doc. 43).  We granted the 
motion on February 16, 2022, canceled the hearing, and set a schedule for the 
submission of a stipulated record and supplemental briefing.  (Doc. 44).  The parties 
filed the stipulated record and all briefs in accordance with the court-imposed 

schedule.  (See Docs. 45-49).  Bracey’s Rule 60(b)(6) motion is now ripe for review. 
II.  Discussion                                                          
    Bracey’s motion seeks relief pursuant to Federal Rule of Civil Procedure 
60(b)(6), which allows a district court to grant relief from a final judgment for any 
reason “that justifies relief.”  FED. R. CIV. P. 60(b)(6).   Our court of appeals has 
succinctly summarized the legal standard that we must apply in reviewing Bracey’s 

motion.  See Bracey, 

.  The court may grant relief under Rule 60(b)(6) 
“in extraordinary circumstances where, without such relief, an extreme and 


    3 Judge Phipps, concurring in part and dissenting in part, agreed with the 
majority’s threshold holdings that habeas corpus petitioners must obtain  
certificates of appealability to appeal the denial of Rule 60(b) motions and that a 
certificate of appealability was properly granted in this case, but dissented with 
respect to the majority’s decision to vacate the denial of Bracey’s Rule 60(b) motion.  

 (Phipps, J. concurring in part and dissenting in part).        
unexpected hardship would occur.”  

 (quoting Cox v. Horn, 

 (3d 
Cir. 2014)).  The petitioner bears the burden to show that he is entitled to relief 
under Rule 60(b)(6), but the court “must consider the full measure of any properly 

presented facts and circumstances attendant to the [petitioner’s] request.”  

 
(alteration in original) (quoting Cox, 

).                  
    When a petitioner’s claim for relief under Rule 60(b)(6) is based on 
intervening changes in law, the court must analyze “whether the asserted change is 
material to the basis on which the district court initially denied habeas relief.”  

 
(citing Norris v. Brooks, 

 (3d Cir. 2015).  If the change in law is 
material, we must analyze the motion in accordance with the multifactor analysis 

outlined in Cox, 

.  Bracey, 

.               
    On the first point, our court of appeals has already concluded that Dennis 
was material to the dismissal of Bracey’s petition because it clarified that a 
defendant “can reasonably expect—and is entitled to presume—that the      
government fulfilled its Brady obligations because the prosecution’s duty to disclose 
is absolute and in no way hinges on efforts by the defense.”  

.  This 

conclusion constitutes the law of the case, and we are bound to follow it.  Hence, we 
turn to the analysis of Bracey’s motion required by Cox, 545 U.S. at 524. 
    In Cox, the Third Circuit noted that “intervening changes in the law rarely 
justify relief from final judgments under 60(b)(6).”  Cox, 

 (emphasis in 
original) (citing Reform Party of Allegheny Cty. v. Allegheny Cty. Dep’t of Elections, 

 (3d Cir. 1999) (en banc)).  Rule 60(b)(6) relief is rarer still in the 
habeas corpus context, especially when the request for relief is based on changes in 
federal procedural law.  

 at 125 (citing Gonzalez v. Crosby, 

, 535-36 & 
n.9 (2005)).                                                              
    Nevertheless, the court of appeals has “not foreclosed the possibility that a 

change in controlling precedent, even standing alone, might give reason for 60(b)(6) 
relief.”  

 (citing Wilson v. Fenton, 

 (3d Cir. 1982) (per curiam)).  
When reviewing a Rule 60(b)(6) motion based on a change in law, the court must 
conduct a flexible, multifactor approach that considers all the facts, circumstances, 
and equitable factors of the petitioner’s case in addition to the relevant change in 
law.  

  “The ultimate question is whether the petitioner has shown ‘extraordinary 
circumstances where, without such relief, an extreme and unexpected hardship 

would occur.’”  Bracey, 

 (quoting Cox, 

).   
    In considering the totality of the circumstances of the petitioner’s motion, the 
court should consider “the effect of the change in decisional law on the district 
court's prior ruling,” the merits of the petitioner’s underlying claim for habeas 
corpus relief, principles of finality and comity, the petitioner’s diligence in pursuing 
review, and, where appropriate, the imperative of correcting an unjust    

incarceration.  

 (citing Cox, 

).                     
    Upon review of Bracey’s motion in light of the factors outlined in Cox and the 
other circumstances presented by Bracey’s motion, we find that relief under Rule 
60(b)(6) is not warranted.  As we explain in more detail below, nearly all of the Cox 
factors weigh against reopening this case, and Bracey has not presented other 
extraordinary circumstances that warrant relief.                          
    First, although Dennis had a substantial effect on the court’s prior ruling 
dismissing Bracey’s petition, the change in law that Dennis announced is not 
extraordinary.  As the Third Circuit explained, Dennis “effected a material change 

in Circuit law with respect to the reasonable expectations of a Brady claimant” by 
clarifying that a defendant “can reasonably expect—and is entitled to presume—
that the government fulfilled its Brady obligations because the prosecution’s duty to 
disclose is absolute and in no way hinges on efforts by the defense.”  Bracey, 

.  If this principle of law had been applied by the court in its 2012 
analysis, this case would not have been dismissed as untimely given that Bracey did 
not have reason to believe that a Brady violation occurred until his sister discovered 

Plummer and Bell’s other charges in 2010.  See 

 (holding based on Dennis 
“that a habeas petitioner's Brady claim is timely under § 2244(d)(1)(D) so long as it is 
filed within one year of the date on which the petitioner has reason to believe that 
the prosecution may have violated its duty of disclosure”).  As the Supreme Court 
recognized in Gonzalez v. Crosby, however, an after-the-fact change in decisional 
law interpreting AEDPA’s one-year statute of limitations is not by itself an 

extraordinary circumstance.  See Gonzalez, 

.            
    In Gonzalez, the district court dismissed the petitioner’s habeas corpus 
petition as untimely, finding that under then-controlling circuit precedent, the 
limitations period for the petition was not tolled during the pendency of petitioner’s 
second request for state post-conviction relief.  

.  The Supreme Court 
subsequently held in Artuz v. Bennett, 

 (2000), “that an application for 
state postconviction relief can be ‘properly filed’” for purposes of AEDPA “even if 
the state courts dismiss it as procedurally barred.”  Gonzalez, 

 (citing 
Artuz, 

).  The petitioner moved to reopen his case pursuant to Rule 
60(b)(6), contending that Artuz called into question the precedent on which his 

petition was dismissed and therefore constituted an extraordinary circumstance 
warranting Rule 60(b)(6) relief.  Id. at 527.  The district court denied the motion and 
the Eleventh Circuit upheld the denial.  Id. at 527-28.  The petitioner appealed to 
the Supreme Court, but the Court rejected his contention that the change in law 
announced by Artuz constituted an extraordinary circumstance.  Id. at 536.  As the 
Court reasoned, “[t]he District Court’s interpretation was by all appearances 
correct under the Eleventh Circuit’s then-prevailing interpretation of 

(d)(2).  It is hardly extraordinary that subsequently, after petitioner’s case was 
no longer pending, this Court arrived at a different interpretation.”  

 
    This case is analogous to Gonzalez.  The court’s 2012 dismissal of Bracey’s 
petition was correct in view of then-controlling circuit precedent indicating that a 
petitioner’s Brady claim would fail if it was based on the government’s failure to 
disclose evidence that the petitioner could himself have discovered through 

reasonable diligence.  See Bracey, 

 n.14 (noting that controlling 
circuit precedent prior to Dennis “made clear that Brady does not compel the 
government ‘to furnish a defendant with information which with any reasonable 
diligence, he can obtain himself.” (internal alterations and quotation marks 
omitted) (quoting United States v. Pelullo, 

 (3d Cir. 2005))).  “It is 
hardly extraordinary that subsequently, after petitioner’s case was no longer 
pending, [the Third Circuit] arrived at a different interpretation” of the principles 
underlying AEDPA’s one-year statute of limitations in its en banc decision in 
Dennis.  See Gonzalez, 

.                                   
    Our review of the merits of Bracey’s underlying habeas corpus claim also 

militates in favor of denying his motion.  Bracey’s claim is that the Commonwealth 
violated Brady by failing to disclose some of the charges that Plummer and Bell 
were facing when they agreed to testify against Bracey.  (See Doc. 1 at 5). 
    Under Brady, suppression of evidence that is favorable to a defendant and 
material to the defendant’s guilt or punishment violates the defendant’s right to due 
process.  Brady, 

.  Brady applies to both exculpatory evidence and 
evidence that could be used to impeach witnesses.  See Bracey, 

 n.10; 

Giglio v. United States, 

 (1972).  There are three components to a 
Brady violation: (1) the evidence at issue “must be favorable to the accused, either 
because it is exculpatory, or because it is impeaching”; (2) the evidence “must have 
been suppressed by the State, either willfully or inadvertently”; and (3) “prejudice 
must have ensued.”  Strickler v. Greene, 

 (1999).  To establish 
prejudice, the petitioner must establish a reasonable probability that a different 

result would have occurred if the evidence had not been suppressed.  

.  A 
mere possibility of a different result is not sufficient.  

  A reasonable probability 
occurs when suppression of the evidence ‘undermines confidence in the outcome of 
the trial.’”  Kyles v. Whitley, 

 (1995) (quoting United States v. 
Bagley, 

 (1985)).                                        
    Analysis of a Brady claim is “legally simple but factually complex,” because 
the court must examine the relevant evidence in light of the entire trial record and 
determine whether there is a reasonable probability that disclosure of the evidence 
would have led to a different result.  Turner v. United States, 

 
(2017).  “The materiality of Brady material depends almost entirely on the value of 

the evidence relative to the other evidence mustered by the state.”  Lesko v. Sec’y 
Pa. Dep’t of Corrs., 

 (3d Cir. 2022) (quoting Johnson v. Folino, 

 (3d Cir. 2013)).                                            
    Suppressed evidence that could impeach a witness may still be material even 
if the witness was impeached with other evidence.  See, e.g., Turner, 

; Wearry v. Cain, 

 (2016).  But impeachment evidence is 
generally not considered material if it is cumulative of similar impeachment 

evidence that was introduced at trial.  Lesko, 

 (quoting Johnson, 

); United States v. Friedman, 

 (3d Cir. 2011). 
    Based on the evidence adduced by the parties, it appears that the additional 
undisclosed charges against Plummer and Bell would be favorable to Bracey as 
impeachment evidence.  See Giglio, 

 (holding that evidence of 
agreement not to prosecute witness in exchange for witness’s testimony constituted 

impeachment evidence that was favorable to the accused).  It also appears that the 
Commonwealth suppressed this evidence in violation of Brady.  See Wilson v. 
Beard, 

 (3d Cir. 2009) (“the fact that a criminal record is a public 
document cannot absolve the prosecutor of her responsibility to provide that record 
to defense counsel.”); accord Dennis, 

.4                   
    It does not appear, however, that the additional undisclosed charges against 

Plummer and Bell were material to Bracey’s guilt or punishment.  Both Plummer 
and Bell were heavily impeached at trial with evidence they had reached plea 
agreements in exchange for their testimony, (see Doc. 45-1 at 76, 104-05), and 
impeachment evidence that is cumulative of similar impeachment evidence is 
generally not considered material.  Lesko, 

.               
    Additional impeachment of Plummer and Bell would also have no effect on 
the testimony of Milagros Torres and Jacqueline Jackson, both of whom testified 

that they saw Bracey shooting at Sims’s car.  (See Doc. 45-1 at 29-30, 34-36, 56-57, 
65-66).  That testimony, combined with Torres and Jackson’s contemporaneous 
identification of Bracey as the shooter—Torres based on recognizing Bracey from 
the neighborhood and Jackson based on her existing relationship with Bracey and 
conversation immediately after the shooting, (see id. at 34-36, 56-57, 66-69)—would 
likely be enough to sustain confidence in the verdict regardless of whether 

additional evidence impeaching Plummer and Bell was introduced.  See Smith v. 
Cain, 

 (2012) (“[E]vidence impeaching an eyewitness may not be 
material if the State’s other evidence is strong enough to sustain confidence in the 
verdict.” (citing United States v. Agurs, 427 U.S 97, 112-13 (1976))).    

    4 Respondent argues that “the Commonwealth, by definition, cannot    
suppress evidence that is publicly available.”  (Doc. 47 at 13).  This argument is 
plainly contrary to the Third Circuit’s holdings in Wilson and Dennis.    
    Bracey argues that there is a reasonable probability that the additional 
impeachment evidence would have produced a different outcome by leading the 
jury to convict him of third-degree murder rather than first-degree murder.  (Doc. 

46 at 17).  This argument tracked his strategy at trial, which sought a conviction for 
third-degree murder rather than first-degree murder “based on Mr. Bracey’s 
intoxication and [the] perceived threat posed by Houston Sims.”  (Id. at 3). 
    We are not persuaded that additional impeachment of Plummer and Bell 
could have reduced Bracey’s conviction to third-degree murder.  A significant 
quantum of evidence—independent of Plummer and Bell’s testimony—supported 
the jury’s conclusion that Bracey killed Sims in a premeditated fashion.  First, 

eyewitness testimony from Jackson indicated that Bracey shot at Sims as Sims was 
driving away from him.  (Doc. 45-1 at 66).  Second, testimony from Dr. Ross 
corroborated Jackson’s account that Bracey had shot Sims from behind.  Dr. Ross 
testified that all three bullet wounds Sims had suffered were on the back of his body 
and that they were caused by distant gunshots fired from at least 3-4 feet away.  (Id. 
at 164-65, 168-70).  Third, testimony from Leroy Lucas that no guns were found in 

Sims’s car undermined Bracey’s account that he had seen Sims reaching for a gun.  
(See 

).  Fourth, testimony from Thomas Plummer, Sr. regarding the letter he 
received from Bracey supported an inference that Bracey fabricated his account of 
Sims posing a threat to him in order to avoid conviction for first-degree murder.  
(See id. at 233-34).  Finally, the only evidence that Bracey was intoxicated on the 
night of Sims’s murder was Plummer’s testimony to that effect.  (See id. at 248-50).  
Additional impeachment of Plummer’s credibility would thus have hurt, rather than 
helped, Bracey’s intoxication theory.                                     
    In light of all the evidence tending to show that the suppressed impeachment 

evidence was not material to Bracey’s guilt or punishment, we conclude that the 
merits of Bracey’s claim do not support his request for Rule 60(b)(6) relief. 
    Principles of finality and comity also weigh against granting relief.  Federal 
courts must “pay ample respect to states’ criminal judgments” and should be 
particularly reluctant to disturb those judgments via Rule 60(b) relief.  Cox, 

.  “In that vein, a district court reviewing a habeas petitioner’s 60(b)(6) motion 
may consider whether the conviction and initial federal habeas proceeding were 

only recently completed or ended years ago.  Considerations of repose and finality 
become stronger the longer a decision has been settled.”  

 (citing Gonzalez, 

).  Bracey’s conviction and sentence became final nearly thirty years 
ago in 1995, and his habeas corpus petition had been dismissed for four years before 
Dennis was decided.                                                       
    Finally, Bracey’s diligence in pursuing his Dennis claim weighs in favor of 

granting relief, as he promptly pursued relief shortly after Dennis was decided.  His 
diligence alone, however, is not sufficient for us to find the extraordinary 
circumstances necessary to grant relief under Rule 60(b)(6).  The weight of all other 
factors is decidedly against a finding of extraordinary circumstances.    
III.  Conclusion                                                          
    We will deny Bracey’s motion for relief from judgment under Federal Rule of 
Civil Procedure 60(b)(6).  A certificate of appealability will not issue because jurists 

of reason would not debate the correctness of this procedural ruling.  Slack v. 
McDaniel, 

 (2000).  An appropriate order follows.        

                             /S/ CHRISTOPHER C. CONNER                   
                             Christopher C. Conner                       
                             United States District Judge                
                             Middle District of Pennsylvania             

Dated:  September 8, 2022