Buchanan v. Deloy et al

Filing 96

MEMORANDUM ORDER - denying re 92 MOTION to Reopen Case filed by David J. Buchanan. The court declines to issue a certificate of appealability because petitioner has failed to make a "substantial showing of the denial of a constitutional right." Signed by Judge Sue L. Robinson on 12/19/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DAVID J. BUCHANAN,
Petitioner,

v.
G.R. JOHNSON, Warden,
and JOSEPH R. BIDEN, III,
Attorney General of the State
of Delaware,
Respondents.

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) Civil Action No. 08-639-SLR
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MEMORANDUM ORDER
At Wilmington this

I ~ day of December, 2012, having reviewed petitioner

David J. Buchanan's motion to reopen his habeas case, filed pursuant to Fed. R. Civ.
P. 60(b)(3) and (6) (0.1. 92);
IT IS ORDERED that petitioner's Rule 60(b) motion is DENIED for the reasons
that follow:
1. Background. The court denied petitioner's § 2254 application in September
2010, after concluding that the two claims asserted therein were procedurally barred.
(0.1.64; 0.1. 65) Petitioner filed a motion for reargument, which the court denied. (0.1.
69; 0.1.78) On November 2,2012, petitioner filed the instant motion to reopen his case
pursuant to Rule 60(b)(3) and (6). (0.1. 92)
2. Standard of Review. "Rule 60(b) allows a party to seek relief from a final
judgment, and request reopening of his case, under a limited set of circumstances
including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby, 545
U.S. 524, 528 (2005). Motions filed pursuant to Rule 60(b)(3) must be filed no more

than a year after entry of the judgment. Fed. R. Civ. P. 60(c)(1). In turn, a Rule
60(b)(6) motion must be filed within a "reasonable time." United States v. One Toshiba
Color Television, 213 F.3d 147, 157-58 (3d Cir. 2000)(en banc). A court may grant a
Rule 60(b) motion only in extraordinary circumstances,1 and a Rule 60(b) motion is not
appropriate to reargue issues that the court has already considered and decided.
Brambles USA Inc.

V.

Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990).

3. Additiona"y, when, as here, a district court is presented with a Rule 60(b)
motion after it has denied the petitioner's federal habeas application, the court must first
determine if the motion constitutes a second or successive application under the
Antiterrorism and Effective Death Penalty Act ("AEDPA"). As articulated by the Third
Circuit,
in those instances in which the factual predicate of a petitioner's Rule 60(b)
motion attacks the manner in which the earlier habeas judgment was procured
and not the underlying conviction, the Rule 60(b) motion may be adjudicated on
the merits. However, when the Rule 60(b) motion seeks to collaterally attack the
petitioner's underlying conviction, the motion should be treated as a successive
habeas petition.
Pridgen

V.

Shannon, 380 F.3d 721,727 (3d Cir. 2004). Under AEDPA, a prisoner

cannot file a second or successive habeas application without first obtaining approval
from the Court of Appeals and, absent such authorization, a district court cannot
consider the merits of a subsequent application. 28 U.S.C. § 2244(b)(3)(A); Robinson
v. Johnson, 313 F.3d 128, 139-40 (3d Cir. 2002).

4. Discussion. In the instant motion, petitioner asks the court to reopen his
federal habeas proceeding to consider a claim that trial counsel rendered ineffective

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Moolenaar v. Gov't of Virgin Islands, 822 F .2d 1342, 1346 (3d CiL 1987).

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assistance in investigating petitioner's case. (0.1. 92) More specifically, petitioner
alleges he learned during his first state collateral proceeding that trial counsel falsely
stated he had accessed the Delaware Family Court records relating to an order of
prohibition against petitioner during petitioner's trial or direct appeal. Therefore, the
case should be reopened so that the court can determine if trial counsel provided
ineffective assistance with respect to the arguments related to the order of prohibition.
5. As an initial matter, the court concludes that the instant Rule 60(b) constitutes
a second or successive habeas application. See 28 U.S.C. § 2244(a),(b)(3); 28 U.S.C.

§ 2254. Petitioner's argument that trial counsel provided ineffective assistance does
not challenge the manner in which petitioner's § 2254 application was denied but,
rather, collaterally attacks his underlying conviction. In addition, petitioner could have,
but did not, raise the instant argument in his § 2254 application, or in his first motion for
rearg ument. 2

2Petitioner's first application filed in October 2008 was dismissed without
prejudice for failing to exhaust state remedies. (0.1. 4) The court reopened the case in
August 2009 at petitioner's request, because he asserted that he had exhausted state
remedies. (0.1. 22) He then filed an amended habeas application asserting three
claims: (1) ineffective assistance of counsel at trial and on appeal; (2) the Delaware
Supreme Court erred in denying his petition for a writ of prohibition on the ground that
the Superior Court lacked jurisdiction; and (3) a "civil suit to give judicial notice of
malicious prosecution by state and federal police with nexus, and to recover property."
(0.1.25; 0.1. 26) On July 16, 2010, petitioner voluntarily withdrew his unexhausted
ineffective assistance of counsel claim from his habeas application. (0.1.57) The court
then denied the remaining two claims in the application as procedurally barred. (0.1.
64; 0.1. 65) On September 27, 2010, petitioner filed a letter informing the court that he
had filed a Rule 61 motion for post-conviction relief in the Delaware Superior Court on
August 23,2010, and that the Rule 61 motion asserted a claim regarding trial counsel's
ineffective assistance. (0.1.66) Although petitioner filed his Rule 61 motion in the
Superior Court days after voluntarily withdrawing his ineffective assistance of counsel
claim from his federal habeas application, he did not inform this court of his pending
Rule 61 proceeding and ask to stay the habeas proceeding during its pendency in state

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6. The record reveals that petitioner did not obtain permission from the Third
Circuit Court of Appeals to file the instant motion/application. Accordingly, the court
denies petitioner's motion/application as second or successive. See 28 U.S.C. §
2244(b)(1); Robinson, 313 F.3d at 139 (holding that when a second or successive
habeas petition is erroneously filed "in a district court without the permission of the court
of appeals, the district court's only option is to dismiss the petition or transfer it to the
court of appeals pursuant to 28 U.S.C. § 1631.").
7. In addition, even if the court were to treat the Rule 60(b) motion as a true
motion for reconsideration rather than as a second or successive habeas petition, it is
unavailing. First, to the extent the instant motion is filed pursuant to Rule 60(b)(3), it is
dismissed as untimely. The court denied petitioner's habeas application on September
29, 2010, and denied his motion for reargument on September 15, 2011. Petitioner's
instant Rule 60(b)(3) motion was filed on November 2,2012, well after the one year
time period required for filing Rule 60(b){3) motions.
8. Second, to the extent the motion is filed pursuant to Rule 60(b)(6), it is denied

court, nor did he ask to withdraw his entire habeas application so that he could proceed
with all claims after the end of his Rule 61 proceeding. Additionally, although petitioner
filed a motion for reargument after the court denied his habeas application, petitioner
only explicitly argued that the court erred in denying the two remaining claims in the
application as procedurally barred from federal habeas review. In other words,
petitioner did not raise an ineffective assistance of counsel claim in his motion for
reargument. (0.1. 69) When the court denied petitioner's motion for reargument on
September 15, 2011, the court only considered petitioner's explicit argument that the
two remaining claims in the application should not have been denied as procedurally
barred. (0.1. 78) Significantly, after withdrawing his first ineffective assistance of
counsel claim from his application in July 2010, petitioner did not raise another
freestanding ineffective assistance of counsel claim until November 2012, when he filed
the instant Rule 60(b) motion.

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'for failing to satisfy the standards outlined in Rule 60{b)(6). Petitioner's unsupported
and self-serving claim that counsel misrepresented the extent of the investigation he
performed prior to or during petitioner's trial concerning an order of prohibition against
petition does not constitute an extraordinary circumstance warranting reconsideration of
the court's earlier decision. Additionally, petitioner "discovered" this alleged ineffective
assistance sometime between August and December 2010, yet waited to raise this new
claim until November 2012.
9. Finally, to the extent one may be necessary, the court declines to issue a
certificate of appealability because petitioner has failed to make a "substantial showing
of the denial of a constitutional right." 28 U.S.C. § 2253{c)(2); see United States v.

Eyer, 113 F.3d 470 (3d Cir. 1997); 3d Cir. L.A.R. 22.2 (2011).
IT IS FURTHER ORDERED that the clerk of the court shall close the case.

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