                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2009

USA v. Robert Burke
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2472




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Recommended Citation
"USA v. Robert Burke" (2009). 2009 Decisions. Paper 1574.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1574


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CLD-127                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-2472
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                                 ROBERT BURKE,
                                         Appellant
                            __________________________

                     Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Criminal No. 92-cr-00268)
                    District Judge: Honorable William H. Yohn, Jr.
                             __________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 12, 2009

          Before: RENDELL, HARDIMAN and STAPLETON, Circuit Judges

                                 (Filed: April 7, 2009 )
                                       _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

      Appellant Robert Burke appeals from the District Court’s order denying his

“independent action for relief from order denying section 2255 motion” pursuant to

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944). For the reasons that
follow, we will affirm.

       This is the second time that Burke has sought to escape AEDPA’s gatekeeping

provisions by proceeding under Hazel-Atlas. Regardless, because he has not made out a

viable claim of fraud, we need not decide whether such an application is a legitimate

means of repeatedly attacking a criminal conviction or collateral attack proceedings. And

while the District Court properly identified Burke’s attempt to present two separate

claims of fraud, one based on Hazel-Atlas and the other purportedly based on Pumphrey

v. K.W. Thompson Tool Co., 62 F.3d 1128 (9th Cir. 1995), we restrict our analysis to

Burke’s claim based on the former to avoid duplicity, as Pumphrey’s relationship to

Hazel-Atlas is indeed progenial.

       Relief pursuant to Hazel-Atlas is extraordinarily rare, and a movant must establish

“(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court

itself; and (4) in fact deceives the court.” Herring v. United States, 424 F.3d 384, 386-87

(3d Cir. 2005). These four elements must be supported by “clear, unequivocal and

convincing evidence.” Id. at 387 (citations omitted). In addition, “perjury by a witness is

not enough to constitute fraud upon the court.” Id. at 390.

       Simply put, the evidence Burke presents in the instant Hazel-Atlas action is merely

an attempt to assuage the flaws we found in his previous Hazel-Atlas action (“Burke I”),

and is dubious at best. Specifically, we said in Burke I that while “Walter Kates states

that the ‘feds’ and the ‘government’ told [James David Louie] to testify against Burke . . .



                                               2
this is not sufficient to implicate the prosecuting officials specifically.” United States v.

Burke, 193 F. App’x 143, 144 (3d Cir. 2006). Walter Kates now claims he remembers

the names of the federal agents, explaining that he “may have overlooked, or forgot to

mention [them] in [his] previous affidavit.” (Dist. Ct. dkt #197, Ex. A.)

        Next, Burke seeks to rebut our conclusion in Burke I that even if the government’s

witnesses had lied on the stand, his proffered evidence “[did] not establish that the

prosecution intentionally permitted or condoned [the lying].” Burke, 193 F. App’x at

144. To do this, he produces a new affidavit from Nick Vasiliades, who alleges that one

of the witnesses, James Gray, told him in prison that the government knew of and

condoned Gray’s intent to lie on the stand in order to convict Burke. And in reference to

why he failed to provide this double hearsay in his original affidavit, Vasiliades states that

he “did not think these facts were needed.” (Dist. Ct. dkt. #197, Ex. B.)

        Even presuming the veracity of Burke’s affiants, he nonetheless has failed to

present “clear, unequivocal and convincing evidence” of an intentional fraud on the court

by the federal prosecutors in Burke’s criminal case for substantially the reasons of the

District Court.

        There being no substantial question presented by Burke’s appeal, we will

summarily affirm the District Court’s order dismissing the case. See LAR 27.4; I.O.P.

10.6.




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