United States of America v. Robert Burke

CLD-127 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2472
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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 )
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OPINION OF THE COURT
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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

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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 . . .

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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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