Evans v. Pierce et al

Filing 20

MEMORANDUM - Signed by Judge Sue L. Robinson on 12/7/15. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

AUGUSTUS HEBREW EVANS, Jr.
Petitioner,
v.
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

)
)
)
)
) Civ. No. 15-270-SLR
)
)
)
)
)

)

MEMORANDUM
At Wilmington this

it+-

day of December, 2015, having reviewed the above

captioned case, the court will dismiss petitioner August Hebrew Evans, Jr.'s
("petitioner") pro se petition for a writ of error coram nobis pursuant to the all writs act
(D.1. 2) and his Rule 60(b)(6) motion for relief from judgment (D.1. 9), for the reasons
that follow:
1. Background. In 2007, petitioner was convicted of second degree assault,
aggravated menacing, resisting arrest, and two counts of possession of a deadly
weapon during the commission of a felony ("PDWDCF"). See Evans v. State, 968 A.2d
491 (Table), 2009 WL 367728, at *2-3 (Del. Mar. 16, 2009). He was sentenced as a
habitual offender to seventy-nine years of incarceration at Level V, suspended after
seventy-two years for a period of probation. Id. The Delaware Supreme Court affirmed
petitioner's convictions and sentences on direct appeal. Id.

2. In June 2009, petitioner filed a Rule 61 motion for postconviction relief
challenging his 2007 convictions and sentences. See State v. Evans, 2009 WL
2219275 (Del Super. Ct. July 6,2009). The Delaware Superior Court denied the
motion, and the Delaware Supreme Court affirmed that decision. See Evans v. State,
985 A.2d 390 (Table), 2009 WL 3656085 (Del. Dec. 16,2009).
3. In February 2010, petitioner filed in this court an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See Evans v. Phelps, 2012 WL 1134482
(D. Del. Apr. 2,2012). The Honorable Leonard P. Stark denied the application in April
2012 after determining that the claims lacked merit. Id. at *14. Petitioner appealed, and
the Court of Appeals for the Third Circuit declined to issue a certificate of appealability
and terminated the appeal. See Evans v. Phelps, C.A. No. 12-2159 (3d Cir. Oct. 4,
2012). Petitioner filed a petition for writ of certiorari in the United States Supreme Court,
which was denied on April 22, 2013. See Evans v. Phelps, 133 S.Ct. 2007 (2013).
4. In March 2015, petitioner filed in ttlis court the instant petition for a writ of error
coram nobis with respect to his 2007 convictions. (0.1. 2) He contends that his
convictions are illegal, and he seeks immediate release from custody.
5. In April 2015, petitioner filed an application in the Court of Appeals for the
Third Circuit requesting authorization to file a second or successive habeas application.

(0.1. 9 at 3) The Third Circuit denied the application because petitioner failed to satisfy
the requirements for obtaining such authorization. (0.1. 9 at 3-4); see In re Evans, C.A.
No. 15-1726 (3d Cir. Apr. 9, 2015).
6. On May 27,2015, petitioner filed in this proceeding a Rule 60(b)(6) motion for
reconsideration seeking relief from the Third Circuit's refusal to permit him to file a

2

second or successive habeas application, and/or seeking relief from the denial of his
first § 2254 application in 2012. (0.1. 9)
7. Standard of Review. Federal courts have authority to issue a writ of error
coram nobis under the all writs act, which permits "courts established by an Act of
Congress" to issue "all writs necessary or appropriate in aid of their respective
jurisdictions." 28 U.S.C. § 1651. The availability of coram nobis relief is limited to
situations where the petitioner's sentence has been served, the petitioner shows
exceptional circumstances and continuing collateral disadvantages, and alternative
remedies (such as habeas corpus) are not available. United States v. Denedo, 556
U.S. 904, 911 (2009). Id. at 911. Significantly, however, coram nobis relief is not
available in federal court as a means of attacking a state court judgment. See Obado v.
New Jersey, 328 F.3d 716, 718 (3d Cir. 2003). Rather, a person seeking coram nobis

relief with respect to a state court conviction must pursue such relief in state court, not
federal court. Id.
8. As for Rule 60(b) motions for reconsideration, "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). Rule 60(b) provides that a party may file a motion

for relief from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence by which due diligence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have

3

prospective application; or (6) any other reason justifying relief from the operation
of the judgment.
Fed. R. Civ. P. 60(b).
9. Rule 60(b) motions are left to the sound discretion of the trial court, consistent
with accepted legal principles applied in light of all relevant circumstances. Pierce
Assoc. Inc. v. Nemours Found., 865 F.2d 530,548 (3d Cir. 1988). 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).
10. Additionally, when, as here, a district court is presented with a motion for
reconsideration after it has denied a petitioner's § 2254 application, the court must first
determine if the motion constitutes a second or successive application under the
Antiterrorism and Effective Death Penalty Act (UAEDPA"). 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

1Moolenaar

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

4

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).

11. Discussion. In this case, petitioner challenges the legality of his 2007
Delaware Superior Court convictions and sentences for second degree assault,
aggravated menacing, resisting arrest, and two counts of PDWDCF. (0.1. 2 at 1-24)
The court's power of coram nobis review is limited to challenges associated with federal
convictions. Thus, to the extent the instant filing may be considered a "true" petition for
a writ of coram nobis, it is dismissed for lack of jurisdiction.
12. Petitioner also seeks relief via a Rule 60(b)(6) motion for reconsideration.
To the extent petitioner requests relief from the Third Circuit's denial of his application
for permission to file a second or successive habeas application, he must pursue such
relief in the Third Circuit, not in this court. To the extent petitioner's Rule 60(b)(6)
motion asks this court to reconsider the 2012 denial of his first federal habeas
application, the Rule 60(b)(6) motion is not a "true" Rule 60(b) motion, because it does
not attack the manner in which the decision denying petitioner's first habeas application
was procured. Rather, the arguments in the motion challenge petitioner's underlying
convictions and either reasserts the arguments petitioner presented in the § 2254
application that was denied in 2012. or asserts arguments that could have been
presented in his first federal habeas application. (0.124 at 20-31) Since petitioner's
first federal habeas application was denied on the merits and the instant motion
challenges the same 2007 convictions that were challenged in that first application, the
court concludes that the instant motion constitutes a second or successive habeas
application within the meaning of 28 U.S.C. § 2244.

5

13. Although petitioner attempts to avoid the second or successive bar by
arguing that the Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Cox v. Hom, 757 F.3d
113 (3d Cir. 2014) decisions constitute a "new rule of constitutional law" for

§ 2244(b)(2)(A) purposes, the court is not persuaded. Cox is a decision issued by the
Third Circuit and, therefore, cannot constitute a "new rule of constitutional law" for

§ 2244(b )(2)(A) purposes. In Martinez, the Supreme Court held for the first time that
inadequate assistance of counsel during an initial-review state collateral proceeding
may establish cause for a petitioner's procedural default of a claim of ineffective
assistance of trial counsel. Martinez, 132 S.Ct. at 1320. Whether or not Martinez
triggers the § 2244(b )(2)(A) exception to the second or successive bar is an issue that
must be determined by the Third Circuit Court of Appeals, and not by this court. Given
these circumstances, the court can only consider the merits of instant motion/habeas
application if the Third Circuit Court of Appeals granted petitioner permission to file it
here.
14. Petitioner does not assert that the Third Circuit Court of Appeals authorized
the filing of the pending motion/application; indeed, petitioner has filed as an exhibit an
order by the Third Circuit denying his request for authorization to file a second or
successive habeas application. Accordingly, the court will dismiss the instant Rule
60(b)(6) motion/second or successive habeas application for lack of jurisdiction. See
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court,
28 U.S.C. foil. § 2254 (authorizing summary dismissal of § 2254 petitions); 28 U.S.C.

§ 2244(b)(1).

6

15. Finally, even if the court were to construe the instant filing as true Rule
60(b)(6) motion, petitioner's argument that Martinez and Cox together constitute an
"extraordinary circumstance" justifying relief under Rule 60(b)(6) is not convincing.
First, petitioner's reliance on Martinez is misplaced, because petitioner's first application
was denied on the merits and not as procedurally barred. Second, the Rule 60(b)(6)
motion itself is time-barred. In Cox, the Third Circuit opined that a Rule 60(b)(6) motion
for reconsideration based on Martinez will fail unless it "was brought within a reasonable
time of that decision." Cox, 757 F.3d at 115-116. Petitioner filed the instant Rule
60(b)(6) motion on May 27, 2015, almost three full years after the issuance of the

Martinez decision on March 20, 2012, and he does not provide any reason for this
delay. Although the Third Circuit did not define what constitutes a reasonable time for
filing a Rule 60(b)(6) motion premised on Martinez, the court concludes that waiting
almost three full years to file the instant motion does not satisfy the "reasonable time"
requirement. See Moolenaar, 822 F.2d at 1348 (holding that two-year delay was not a
reasonable time to bring a Rule 60(b)(6) motion); Ackerman v. United States, 340 U.S.
193, 202 (1950); see also Azbuko v. Bunker Hill Cmty. Coli, 442 F. App'x 643, 644 (3d
Cir. 2011 )(per curiam)("[8]ecause [plaintiff] has provided no explanation for his delay in
filing, we agree with the District Court that he has not filed his motion within a
reasonable time of the order that he seeks to challenge."); Choi v. Kim, 258 F. App'x
413, 415 (3d Cir. 2007).
16. To the extent one may be necessary, the court declines to issue a certificate
of appealability. See 28 U.S.C. § 2253(c)(2); United States v. Eyer, 113 F.3d 470 (3d
Cir. 1997); 3d Cir. L.A.R. 22.2 (2011).

7

17. Conclusion. For the above reasons, the court will dismiss the instant

petition for a writ of coram nobis and petitioner's Rule 60(b)(6) motion for
reconsideration. Based on the foregoing, petitioner's pending motions (0.1. 5; 0.1. 7;
0.1. 8; 0.1. 17) will be dismissed as moot. A separate order shall issue. See Fed. R.

Civ. P. 58(a).

UNITED STAt S DISTRICT JUDGE

8