                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUN 7 2001
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

          Respondent/Appellee,
                                                        No. 01-1273
v.                                                 (District of Colorado)
                                                   D.C. No. 96-CR-68-M)
TIMOTHY JAMES McVEIGH,

          Movant/Appellant.




                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and MURPHY, Circuit Judges.



      On June 6, 2001, Judge Matsch of the United States District Court for the

District of Colorado denied Timothy McVeigh’s petition for a stay of execution.

On appeal, McVeigh renews his argument that he is entitled to a stay in aid of the

district court’s jurisdiction over McVeigh’s anticipated claim that the

government’s failure to produce certain documents constituted a fraud on the



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
court. See 28 U.S.C. § 1651; Fed. R. Civ. P. 60(b); Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 244-45 (1944). Due to this alleged fraud on

the court, McVeigh contends that his anticipated Fed. R. Civ. P. 60(b) motion

would be exempt from the provisions of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA) which limit a federal prisoner’s right to file a

“second or successive” motion under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(b);

id. § 2255 para. 8 (incorporating requirements from § 2244(b)). 1

      In denying McVeigh’s request for a stay, the district court first assumed

that under certain circumstances a showing of fraud on the court could serve to

allow the reopening of a previously filed § 2255 petition under Rule 60(b)

without the necessity of satisfying the rigorous standards set out in the AEDPA

for the filing of second or successive habeas petitions. See Calderon v.

Thompson, 523 U.S. 538, 553, 557 (1998) (arguably suggesting exception for

fraud on the court); Workman v. Bell, 227 F.3d 331, 335 (6th Cir. 2000) (plurality

opinion for equally divided court) (recognizing exception); United States v

MacDonald, No. 97-7297, 1998 WL 637184, at *3 (4th Cir. Sept. 8, 1998)



      1
       As McVeigh candidly conceded in his filings before the district court,
except for his argument that there is a fraud on the court exception to § 2255
para. 8’s gatekeeping and certification requirements, it is absolutely clear that his
anticipated Rule 60(b) motion would be considered a second or successive § 2255
motion over which the district court would have no jurisdiction. See Lopez v.
Douglas, 141 F.3d 974, 975 (10th Cir. 1998).

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(unpublished disposition) (same); see also In re Bryan, 244 F.3d 803, 804 n.1

(11th Cir. 2000) (declining to reach the issue); Fierro v. Johnson, 197 F.3d 147,

153 (5th Cir. 1999) (same). The district court concluded, however, that McVeigh

had not come close to establishing a reasonable basis to believe that he would be

able to satisfy the exceedingly demanding standards applicable to a fraud on the

court claim. Without the requisite fraud on the court foundation, the district court

concluded that it would not have jurisdiction over McVeigh’s anticipated Rule

60(b) motion. Because § 1651 does not constitute a grant of jurisdiction, but

instead merely empowers federal courts to issue all writs necessary or appropriate

in aid of respective jurisdiction, and because it would not have jurisdiction over

McVeigh’s anticipated Rule 60(b) motion, the district court concluded that it must

deny McVeigh’s request for a stay. See Hatch v. Oklahoma, 92 F.3d 1012, 1017

(10th Cir. 1996) (holding that a stay of execution is only appropriate where the

movant demonstrates substantial grounds upon which relief might be granted

(citing Barefoot v. Estelle, 463 U.S. 880, 895 (1983)).

      On appeal, McVeigh asserts that the district court failed to answer the key

question presented in his stay motion: Has McVeigh made a sufficient showing

that given time to pursue the matter he would be able to demonstrate a fraud on

the court? Instead, according to McVeigh, the district court simply undertook a

materiality analysis under Brady v. Maryland, 373 U.S. 83, 87 (1963), an analysis


                                         -3-
which McVeigh contends was improperly skewed by application of the pre-

AEDPA successive writ standard from Sawyer v. Whitley, 505 U.S. 333, 348

(1992). McVeigh’s interpretation of the district court’s oral ruling is untenable in

several respects.

       First, although the district court did opine that allowing McVeigh to reopen

his previously filed § 2255 petition would be futile because evidence that others

had participated in the bombing would not have led to a different result during the

penalty phase, the district court specifically held that McVeigh had not made a

sufficient showing of fraud on the court. In this regard, the district court

recognized that under binding Tenth Circuit precedent “[i]ntent to defraud is an

absolute prerequisite to a finding of fraud on the court.” Weese v. Schukman, 98

F.3d 542, 553 (10th Cir. 1996). The district court then proceeded to set out at

length its reasoning for concluding that McVeigh had not demonstrated a

reasonable probability that given additional time he could present a viable claim

of fraud on the court. 2


       2
        The district court held as follows:
             But at any rate, I’ve looked at what has been submitted here as
       a showing or a presumed showing that there was some fraud upon the
       Court by the failure of the Federal Bureau of Investigation to produce
       documents that were clearly within the scope of the discovery
       agreement and that they didn’t – there is no suggestion that
       prosecuting counsel was aware prior to this May.
             It has been argued forcefully here by Mr. Nigh that this calls
       into question the integrity of the process and that this court has a

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      Second, McVeigh is simply wrong in trying to compartmentalize the

questions of fraud on the court and Brady materiality. If the evidence in question

was not material, a fundamental requirement for fraud on the court would be




      responsibility to protect that integrity. But I think there has to be a
      drawn a distinction between the integrity of the Federal Bureau of
      Investigation and the integrity of the adjudicative process leading to
      the–to these verdicts and recommendation. They are quite different
      things.
              It is the function of others to hold the FBI accountable for its
      conduct here, as elsewhere. And I would expect that there would be
      consequences upon finding what the defense suggests; but there is a
      great deal of difference between an undisciplined organization or
      organization that is not adequately controlled or that can’t keep track
      of its information–those are not the questions here. We’re not here
      for the purpose of trying the FBI.
              The suggested evidentiary hearing that defense counsel want to
      present would be within the Court’s jurisdiction and relevant only if I
      were forced to determine that there is enough here to suggest the
      kind of intentional planning and scheme to defraud the Court by
      withholding the evidence and, as the defense counsel have pointed
      out, to cause the prosecuting attorneys repeatedly through the course
      of the trial to say: Yes, we’ve provided your directives to
      communicate, and all of the agencies have gathered together the
      information that should be produced in discovery and under Brady.
              ....
              Now, I do not doubt that there may be as a result of the
      requested evidentiary hearing evidence presented of negligence, lack
      of coordination, lack of organization in the collection and
      maintaining of the materials. But it has to also be viewed in the
      context of the massive investigation was undertaken here and the
      speed with which it was done.
              There seems in my review of what’s been submitted here no
      pattern of what was not disclosed that would suggest a scheme to
      keep away from the defense what they needed for trial, including the
      sentence hearing. I don’t see that.

                                         -5-
absent. See United States v. Beggerly, 524 U.S. 38, 47 (1998) (holding that Fed.

R. Civ. P. 60(b) motion premised on fraud on the court is “available only to

prevent a grave miscarriage of justice”). Furthermore, the fact that only non-

material matters were involved undercuts any inference that the prosecution

perpetrated a “deliberately planned and carefully executed scheme to defraud.”

Hazel-Atlas Glass, 322 U.S. at 245.

      Finally, McVeigh is simply incorrect in asserting that the district court’s

materiality discussions were tainted by its reference to Sawyer. Considered as a

whole, the only reasonable reading of the district court’s ruling is that the district

court referenced Sawyer solely for the proposition that in conducting its Brady

materiality assessment it must focus on both the underlying guilty verdict and the

death penalty. See Sawyer, 505 U.S. at 342-43 (noting that a death row petitioner

can be innocent of the death penalty entirely independent of whether he is

innocent of the underlying capital offense). After so recognizing, the district

court applied the normal Brady materiality standard in evaluating whether there

was a reasonable probability that the omitted evidence would have altered the

outcome of McVeigh’s penalty proceedings.

      This court affirms the district court’s denial of a stay of execution. Even

assuming the existence of a fraud on the court exception to the gatekeeping

requirements and affirmative limitations in § 2255 applicable to second or


                                          -6-
successive motions, McVeigh has utterly failed to demonstrate substantial

grounds upon which relief might be granted. See Beggerly, 524 U.S. at 47;

Hazel-Atlas Glass, 322 U.S. at 245; Weese, 98 F.3d at 552-53 (“Generally

speaking, only the most egregious misconduct, such as bribery of a judge or

members of a jury, or the fabrication of evidence by a party in which an attorney

is implicated will constitute a fraud on the court. Less egregious misconduct,

such as nondisclosure to the court of facts allegedly pertinent to the matter before

it, will not ordinarily rise to the level of fraud on the court.”). Having affirmed

the district court, there is no basis upon which to grant McVeigh’s Emergency

Application for Stay of Execution filed in this court pursuant to Fed. R. App. P. 8

and 10th Cir. R. 8.1. Accordingly, that application is hereby denied.

      In an abundance of caution, this court alternatively treats McVeigh’s notice

of appeal as a request to file a second or successive motion under § 2255. We

deny that request, noting our complete agreement with McVeigh’s candid

concession in his district court filings that the newly produced materials do not

satisfy the standard set out in § 2255 para. 8 and § 2244(b).

                                        ENTERED FOR THE COURT

                                        PER CURIAM




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