Diggs v. Mitchem

Filing 26

ORDER denying 25 Motion for relief from final judgment and a COA from this ruling is also denied. Signed by Chief Judge William H. Steele on 8/22/2014. Copy mailed to Petitioner. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERNEST B. DIGGS, JR.,
Petitioner,
v.
BILLY MITCHEM,
Respondent.

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) CIVIL ACTION 03-0104-WS-M
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ORDER

In October 2004, Judge Hand entered an order adopting the Magistrate
Judge’s report and recommendation (“R&R”) that, because the petitioner’s claims
were procedurally defaulted, his habeas petition should be denied, the action
dismissed, and judgment entered in favor of the respondent. (Doc. 14). On the
same day, Judge Hand entered judgment in favor of the respondent. (Doc. 15).
Now, almost ten years later, the petitioner moves under Rule 60(b) for relief from
that order and judgment. (Doc. 25). After careful consideration, the Court
concludes that his motion is due to be denied.
BACKGROUND
The petitioner invokes subsections (4), (5) and (6) of Rule 60(b). In
particular, he argues that the order and judgment are void under Rule 60(b)(4)
because the Magistrate Judge violated his right to procedural due process; that the
order and judgment are based on an earlier judgment that has been reversed or
vacated within the contemplation of Rule 60(b)(5); and that relief is available
under the catch-all provision of Rule 60(b)(6) both because there has been an
intervening change in the law and because denying his petition without reaching
the merits of his claims works an unconstitutional suspension of the writ.

DISCUSSION
A petitioner may not use Rule 60(b) to circumvent the requirement of 28
U.S.C. § 2244(b)(3)(A) that he obtain appellate permission to pursue a second or
successive petition. Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005). But this
rule bars only the use of Rule 60(b) to advance a habeas “claim,” that is, “a new
ground for relief” or an argument “that the court erred in denying habeas relief on
the merits.” Id. at 532. A petitioner does not make a habeas claim in a Rule 60(b)
motion “when he merely asserts that a previous ruling which precluded a merits
determination was in error – for example, a denial for such reasons as …
procedural default.” Id. at 532 n.4. The petitioner’s motion challenges the
determination that his claims are barred by procedural default. It therefore raises
no habeas claim and thus is not subject to the requirements of Section
2244(b)(3)(A).
A. Rule 60(b)(4).
Motions under Rule 60(b) “must be made within a reasonable time.” Fed.
R. Civ. P. 60(c)(1). “[V]irtually any time is ‘reasonable’ for challenges to void
judgments under Rule 60(b)(4).” Harris v. Corrections Corp. of America, 332
Fed. Appx. 593, 595 (11th Cir 2009) (citing Hertz Corp. v. Alamo Rent-A-Car,
Inc., 16 F.3d 1126, 1130-31 (11th Cir. 1994)). The Court therefore assumes,
without deciding, that the petitioner’s motion under Rule 60(b)(4) is timely.
“Generally, a judgment is void under Rule 60(b)(4) if the court that
rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted
in a manner inconsistent with due process of law.” Burke v. Smith, 252 F.3d 1260,
1263 (11th Cir. 2001) (internal quotes omitted). The petitioner does not claim a
lack of jurisdiction, but he does assert a violation of due process.
The R&R concluded that the petitioner’s claims were procedurally
defaulted by failure to properly pursue them in state court, with the defaults not
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excused by either cause and prejudice or a fundamental miscarriage of justice.
(Doc. 12). The petitioner’s one-sentence due process argument is that “[t]he
Magistrate Judge erred in violation of procedural due process in not applying §
2254(d)(1) and (2)” to his petition. (Doc. 25 at 2). Those provisions govern a
federal court’s analysis of “any claim that was adjudicated on the merits in State
court proceedings.” 28 U.S.C. § 2254(d). The petitioner’s objections to the R&R
reflect his assertion that, while the state courts mentioned procedural problems,
they thereafter reached the merits of each of his claims, precluding dismissal based
on procedural default and triggering review of the merits under Section 2254(d).
(Doc. 13 at 1-2).
Assuming without deciding that the Magistrate Judge erred by not applying
Section 2254(d), his error could not possibly support relief under Rule 60(b)(4).
“A judgment is not void because it is erroneous.” William Skillings & Associates
v. Cunard Transportation, Ltd., 594 F.2d 1078, 1081 (5th Cir. 1979); accord Dixon
v. Kilgore, 343 Fed. Appx. 530, 532 (11th Cir. 2009) (“[A] judgment is not void
because of an error of law.”) (citing Gulf Coast Building & Supply Co. v.
International Brotherhood of Electrical Workers, 460 F.2d 105, 108 (5th Cir.
1972)). Indeed, this is true of Rule 60(b) in general: “Rule 60(b) may not be used
to challenge mistakes of law which could have been raised on direct appeal.”
American Bankers Insurance Co. v. Northwestern National Insurance Co., 198
F.3d 1332, 1338 (11th Cir. 1999). The error of which the petitioner complains is
one of law and, if such error exists, it could have been raised on direct appeal.
Indeed, the petitioner asserted precisely this issue on direct appeal from Judge
Hand’s order and judgment. (Doc. 19 at 3).
Due process, in general and in the context of Rule 60(b)(4), “generally
requires notice and an opportunity to be heard.” United States v. Gentile, 322 Fed.
Appx. 699, 701 (11th Cir. 2009). An order does not violate due process, and will
not support relief under Rule 60(b)(4), when the Rule 60 movant had notice of the
underlying proposed adverse action and had an opportunity to respond to it.
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Oakes v. Horizon Financial, S.A., 259 F.3d 1315, 1319 (11th Cir. 2001). The
petitioner received the R&R and so received notice that the Magistrate Judge
proposed denial of his petition based on procedural default. The petitioner was
given two weeks to file objections to the R&R, and he did so. He thus had an
opportunity to respond to the proposed R&R and to object that the Magistrate
Judge was required to address the merits of his claims. As noted, the petitioner
raised precisely that objection. (Doc. 13 at 1-2). The requirements of due process
were fully satisfied, and the order and judgment thus are not void for purposes of
Rule 60(b)(4).
B. Rule 60(b)(5).
In determining whether a motion under this rule has been brought within a
reasonable time, “we must consider the circumstances of each case to determine
whether the parties have been prejudiced by the delay and whether a good reason
has been presented for failing to take action sooner.” BUC International Corp. v.
International Yacht Council Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008) (internal
quotes omitted). The petitioner invokes Rule 60(b)(5) based on changes in the
legal landscape wrought by the Supreme Court’s decision in Martinez v. Ryan, 132
S. Ct. 1309 (2012). Martinez was handed down in March 2012, two years and
three months before the petitioner filed his motion. The petitioner offers no reason
for his extended delay in responding to the Martinez decision, and that
unexplained delay weighs heavily against any conclusion that he filed his Rule
60(b)(5) motion within a reasonable time. Cf. Rease v. AT&T Corp., 358 Fed.
Appx. 73, 76 (11th Cir. 2009) (unexplained six-year delay in filing Rule 60(b)(5)
motion rendered it untimely, without any consideration of prejudice vel non);
Ramsey v. Walker, 304 Fed. Appx. 827, 829 (11th Cir. 2008) (trial court did not
abuse its discretion in finding petitioner’s 60(b)(6) motion to be untimely, when it
was filed six years after the habeas petition was denied “and two years after the
cases on which he relied were decided”).
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Even were the petitioner’s motion timely, it would fail on its merits. The
portion of Rule 60(b)(5) on which he relies requires him to show that the judgment
in this case “is based on an earlier judgment that has been reversed or vacated.” It
is well settled that “[t]his ground is limited to cases in which the present judgment
is based on the prior judgment in the sense of claim or issue preclusion [and] does
not apply merely because a case relied on as precedent by the court in rendering
the present judgment has since been reversed.” 11 Charles A. Wright, Arthur R.
Miller & Mary K. Kane, Federal Practice and Procedure § 2863 at 334-35 (2nd ed.
1995) (citing cases from the First, Third, Fourth, Eighth and Ninth Circuits);
accord United States v. Bank of New York, 14 F.3d 756, 760 (2nd Cir. 1994).
The circumstances here do not fit inside this narrow window. According to
the petitioner, Martinez partially overrules Coleman v. Thompson, 501 U.S. 722
(1991), by “modify[ing] the unqualified statement in Coleman that an attorney’s
ignorance or inadvertence in a postconviction proceeding does not qualify as cause
to excuse a procedural default.” 132 S. Ct. at 1315. Coleman, however, arose in
Virginia, involved completely different parties, and was finally resolved a dozen
years before the petitioner was indicted. In short, Coleman has not the slightest
procedural connection with this case, nothing that could possibly exert any claimpreclusive or issue-preclusive effect here. Rule 60(b)(5) therefore cannot apply.
C. Rule 60(b)(6).
The motion under Rule 60(b)(6) is untimely for the reasons expressed in
Part B. The petitioner, without any explanation at all, has delayed over two years
in pressing his Martinez argument and an astounding 9 years, 7 months and 25
days in raising his constitutional argument. Even had the petitioner’s motion been
filed within a reasonable time, however, it would fail on its merits.
“It is well established … that relief under [Rule 60(b)(6)] is an
extraordinary remedy which may be invoked only upon a showing of exceptional
circumstances. … The party seeking relief has the burden of showing that absent
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such relief, an extreme and unexpected hardship will result.” Griffin v. Swim-Tech
Corp., 722 F.3d 677, 680 (11th Cir. 1984) (citations and internal quotes omitted);
accord Galbert v. West Caribbean Airways, 715 F.3d 1290, 1294 (11th Cir.), cert.
denied sub nom. Bapte v. West Caribbean Airways, 134 S. Ct. 792 (2013). This is
a high enough standard on its own, but “[t]he Supreme Court has explained that
extraordinary circumstances that warrant the reopening of a judgment will rarely
occur in the habeas context ….” Howell v. Secretary, Florida Department of
Corrections, 730 F.3d 1257, 1260 (11th Cir. 2013) (internal quotes omitted), cert.
denied sub nom. Howell v. Crews, 134 S. Ct. 1376 (2014).
1. Intervening change of law.
To satisfy Rule 60(b)(6), the petitioner first relies on “an intervening
change in the law” – in particular, the Supreme Court’s decision in Martinez.
(Doc. 25 at 2). As noted, the order and judgment in this case are based on the
conclusion that all of the petitioner’s claims were procedurally defaulted and that
no cause for the defaults, and no prejudice from them, was shown. When this case
was decided, the Supreme Court in Coleman v. Thompson, 501 U.S. 722 (1991),
had made “the unqualified statement … that an attorney’s ignorance or
inadvertence in a postconviction proceeding does not qualify as cause to excuse a
procedural default.” Martinez, 132 S. Ct. at 1315. The Martinez Court
“qualifie[d] Coleman by recognizing a narrow exception: Inadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.
The Martinez qualification does not automatically apply, however. Most
importantly here, Martinez by its terms applies only “[w]here, under state law,
claims of ineffective assistance of trial counsel must be raised in an initial-review
collateral proceeding” and cannot be raised on direct appeal. 132 S. Ct. at 1320
(emphasis added); accord Hittson v. GDCP Warden, ___ F.3d ___, 2014 WL
3513033 at *42 (11th Cir. 2014) (“[T]he Martinez exception to Coleman’s general
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rule is limited to circumstances where state law ‘requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral proceeding.’”) (quoting
Martinez, 132 S. Ct. at 1318) (emphasis added).
Alabama law does not “require” petitioners to withhold ineffective
assistance claims until the commencement of collateral proceedings under Rule
32. On the contrary, state law positively provides that “[a]ny claim that counsel
was ineffective must be raised as soon as practicable, either at trial, on direct
appeal, or in the first Rule 32 petition, whichever is applicable.” Ala. R. Crim. P.
32.2(d). Because Rule 32.2(d) was adopted in 2002 and the petitioner was
convicted in 1999, the rule does not apply to his situation. However, Alabama did
not preclude defendants from raising ineffective assistance claims on direct appeal
before Rule 32.2(d) was adopted. In Ex parte Ingram, 675 So. 2d 863 (Ala. 1996),
the Court confirmed that appellate counsel could raise on direct appeal claims of
ineffective assistance of trial counsel so long as appellate counsel timely moved
for a new trial on such grounds. Id. at 865. Indeed, the Ingram Court positively
“encourage[d] trial judges to attempt to facilitate newly appointed appellate
counsel’s efforts to make new trial motions based upon an alleged lack of effective
counsel before the Rule 24.1(b) time limit expires.” Id.1
Alabama law is nothing like the Arizona law at issue in Martinez, under
which “ineffective assistance of counsel claims are to be brought in Rule 32
proceedings[, and] [a]ny such claims improvidently raised in a direct appeal,
henceforth, will not be addressed by appellate courts regardless of merit.” State v.
Spreitz, 39 P.3d 525, 527 (Ariz. 2002) (cited in Martinez, 132 S. Ct. at 1314).
Because Alabama law in 1999 did not require ineffective assistance claims to be
withheld until collateral proceedings under Rule 32, Martinez does not apply here.
That of itself dooms the petitioner’s Rule 60(b)(6) argument.
1

See also V.R. v. State, 852 So. 2d 194, 199 n.1 (Ala. Crim. App. 2002) (on
application for rehearing) (Rule 32.2(d) uses “language similar to the language in Ex
parte Ingram”).

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The Supreme Court in Trevino v. Thaler, 133 S. Ct. 1911 (2013), built on
Martinez. Even when a state does not “require” that ineffective assistance claims
be raised on collateral attack, when a “state procedural framework, by reason of its
design and operation, makes it highly unlikely in a typical case that a defendant
will have a meaningful opportunity to raise a claim of ineffective assistance of
trial counsel on direct appeal, our holding in Martinez applies ….” Id. at 1921.
Because the petitioner does not invoke Trevino, it is not in play. However, even if
it were, and even if the Court were to conclude that its standard is satisfied, such
that the Martinez exception potentially applies, the petitioner still could not obtain
relief under Rule 60(b).
It is first important to note that Martinez applies only in a very limited
context, in terms of both when the attorney omission constituting cause occurred
and what omission occurred. As to the former, “the Martinez Court expressly
limited its holding to attorney errors in initial-review collateral proceedings ….”
Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014), petition for cert. filed, 83
USLW 3003 (June 5, 2014). Specifically, “[t]he holding in this case does not
concern attorney errors in other kinds of proceedings, including appeals from
initial-review collateral proceedings, second or successive collateral proceedings,
and petitions for discretionary review in a State’s appellate courts.” Martinez, 132
S. Ct. at 1320. “The rule of Coleman governs” in all these scenarios. Id. Thus,
only ineffective assistance of counsel occurring at the trial level of the petitioner’s
first Rule 32 proceeding can constitute cause for a procedural default.
As to the latter limitation, Martinez altered Coleman only with respect to
“claims of ineffective assistance of counsel at trial.” 132 S. Ct. at 1319 (emphasis
added); accord Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013) (“By its own
emphatic terms, the Supreme Court’s decision in Martinez is limited to claims of
ineffective assistance of trial counsel ….”). Thus, only the failure of habeas
counsel to assert a claim of ineffective assistance of trial counsel can constitute
cause for a procedural default.
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A review of the R&R reflects that only one of the petitioner’s six claims
was for ineffective assistance of trial counsel. Moreover, each of the five other
claims was procedurally defaulted at some stage other than the trial level of the
petitioner’s first Rule 32 petition. (Doc. 12 at 2-7). On both grounds, all five of
these claims are excluded from Martinez.
The petitioner’s sixth claim was for ineffective assistance of trial counsel,
with his petition identifying three respects in which trial counsel was ineffective.
(Doc. 12 at 4). Of those three, habeas counsel raised one (failure to assert judicial
bias) in the initial Rule 32 proceedings. (Id. at 5). Because this claim was not
procedurally defaulted at the trial level of the petitioner’s first Rule 32 petition,
Martinez does not apply to it.2
The possible significance of Martinez is thus limited to two allegations of
ineffective assistance of trial counsel: (1) the failure to argue there was a fatal
variance between the indictment and the prosecutor’s offer of proof as to one (of
five) rape charges and one (of three) burglary charges; and (2) the failure to argue
that convicting the petitioner of both rape and sexual abuse of a single victim
arising from a single episode violated his double jeopardy rights. (Doc. 12 at 2, 45).
Accepting that Martinez represents to some extent a change in the law,
“something more than a ‘mere’ change in the law is necessary to provide the
grounds for Rule 60(b)(6) relief.” Ritter v. Smith, 811 F.2d 1398, 1401 (11th Cir.
1987). As noted, “relief under Rule 60(b)(6) … requires a showing of
extraordinary circumstances,” and “[i]t is hardly extraordinary that subsequently,
after petitioner’s case was no longer pending, this Court arrived at a different
interpretation” of when the habeas statute of limitations may be tolled than had the
lower court in the petitioner’s case. Gonzalez, 545 U.S. at 536.
2

This claim was procedurally defaulted later, when it was not raised on appeal of
the denial of the Rule 32 petition. (Id.).

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In some Circuits, the determination whether a change in the decisional law
represents an extraordinary circumstance under Rule 60(b)(6) depends on the
results of a factor analysis.3 The Eleventh Circuit, however, reads Gonzalez as
having “held that a change in the interpretation of the statute of limitations for a
federal habeas petition is not an exceptional circumstance.” Howell v. Secretary,
Florida Department of Corrections, 730 F.3d 1257, 1261 (11th Cir. 2013). Thus, a
petitioner’s diligence in pressing for a change in the law ultimately adopted by the
Supreme Court does not alter the conclusion that such a change is not an
extraordinary circumstance. Id.
In Arthur v. Thomas, 739 F.3d 611 (11th Cir. 2014), the petitioner attempted
to stretch Martinez from the procedural default context to the equitable tolling
context. The Eleventh Circuit held that neither Martinez nor its reasoning applies
in the latter context. Id. at 631. But, the Court continued, even were it to rule
differently on that point, “we hold that the change in the decisional law affected
[sic] by the Martinez rule is not an ‘extraordinary circumstance’ sufficient to
invoke Rule 60(b)(6).” Id. As in Howell, this conclusion was not dependent on
the particular circumstances of the case but on the fundamental inability of a
change in the decisional law to rise to the level of an extraordinary circumstance.
Id. at 631-32; see also Osborne v. United States, 559 Fed. Appx. 807, 809-10 (11th
Cir. 2014) (in light of Gonzalez and Howell, the Supreme Court’s decision in
Maples v. Thomas, 132 S. Ct. 912 (2012) – which held that attorney abandonment
may supply cause to excuse a procedural default – could not constitute an
extraordinary circumstance under Rule 60(b)(6)).
In light of Gonzalez, Howell, Arthur and Osborne, the Court concludes that
the decision in Martinez does not constitute an extraordinary circumstance for

3

See, e.g., Lopez v. Ryan, 678 F.3d 1131, 1135-36 (9th Cir. 2012).

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purposes of Rule 60(b)(6). Accordingly, the petitioner may not obtain relief based
on an intervening change in the law.4
2. Suspension of the writ.
“The privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require it.” U.S.
Const. art. I, § 9, cl. 2. The Suspension Clause appears in Article I, which
addresses congressional power, and the few cases construing the clause focus on
statutory restrictions on the writ. See, e.g., Felker v. Turpin, 518 U.S. 651, 664
(1996) (“[J]udgments about the proper scope of the writ are normally for Congress
to make.”) (internal quotes omitted). The petitioner makes no claim that Congress
has overstepped its bounds in enacting 28 U.S.C. § 2254(b), or even that
procedural default rules crafted by the judiciary in light of that provision violate
the Suspension Clause. Instead, he argues only that, in his case, not addressing the
merits of his claims suspends the writ. The Suspension Clause does not reach
nearly so far as that.
D. Certificate of Appealability.
A certificate of appealability (“COA”) is required in order to appeal the
denial of a proper Rule 60(b) motion in a Section 2254 proceeding. E.g., Williams
4

Although unnecessary to the Court’s decision, several other Circuits also have
held that Martinez does not represent an extraordinary circumstance sufficient to support
relief under Rule 60(b)(6). See Cox v. Horn, ___ F.3d ___, 2014 WL 3865836 at *9 (3rd
Cir. 2014) (“[W]e agree with the District Court that the jurisprudential change rendered
by Martinez, without more, does not entitle a habeas petitioner to Rule 60(b)(6) relief.”);
Nash v. Hepp, 740 F.3d 1075, 1079 (7th Cir. 2014) (Martinez “involves the mundane and
hardly extraordinary situation in which the district court applied the governing rule of
procedural default at the time of its decision and the caselaw changed after judgment
became final.”); Adams v. Thaler, 679 F.3d 312, 320 (5th Cir. 2012) (“The Supreme
Court’s later decision in Martinez, which creates a narrow exception to Coleman’s
holding regarding cause to excuse procedural default, does not constitute an
‘extraordinary circumstance’ under Supreme Court and our precedent to warrant Rule
60(b)(6) relief.”).
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v. Chatman, 510 F.3d 1290, 1294 (11th Cir. 2007). The Court is required to issue
or deny a COA when it enters a final Rule 60(b) order against a petitioner. Rule
11(a), Rules Governing Section 2254 Cases in the United States District Courts.
The Court therefore addresses that question.
“A certificate of appealability may issue … only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). With respect to grounds rejected on their merits, to obtain a COA the
petitioner must show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). With respect to grounds rejected for procedural
deficiencies, the petitioner must show that “jurists of reason would find it
debatable both whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id. For the reasons set forth in
Parts A-C, the Court concludes that jurists of reason would not find the Court’s
procedural assessment debatable.
CONCLUSION
For the reasons set forth above, the petitioner’s motion for relief from final
judgment is denied, and a COA from this ruling is also denied.
DONE and ORDERED this 22nd day of August, 2014.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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