Sallie (DEATH PENALTY) v. Humphrey

Filing 193

ORDER DENYING 182 Motion to Reopen Case and DENYING 188 Amended Motion. The Court refuses to grant a COA. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 11/22/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WILLIAM CARY SALLIE,

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Petitioner,
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vs.
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CARL HUMPHREY, Warden,
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Respondent.
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________________________________ :

CIVIL ACTION NO.: 5:11-CV-75 (MTT)

ORDER
Petitioner William Cary Sallie moves to reopen his closed habeas corpus action
pursuant to Federal Rule of Civil Procedure 60(b)(6). (Docs. 182, 188). The motion, as
amended,1 is denied.2
Sallie filed a 28 U.S.C. § 2254 petition on February 28, 2011, corrected it on March
18, 2011, supplemented it on September 28, 2011, and amended and corrected it on
January 13, 2012. (Docs. 1, 9, 39, 66-67). The Court dismissed the petition, as
amended and supplemented, as untimely. (Doc. 171). Without leave of court, Sallie
filed a second amended habeas petition, which asserted claims of juror bias. (Doc. 122).
The Court ruled these claims were both untimely and procedurally defaulted. (Doc. 170).
Sallie also moved to amend his second amended habeas petition and filed a proposed
third amended habeas petition alleging that trial counsel were ineffective with respect to
1

Sallie filed his original Rule 60(b)(6) motion to reopen on November 15, 2016. (Doc. 182). He alleged
an “imminent execution date.” (Doc. 182 at 1). In his amended motion, filed November 21, 2106, he
alleges that his date of execution is scheduled for December 6, 2016. (Doc. 188 at 1).

2

Sallie’s Fed. R. Civ. P. 60(b)(6) motion “challenges only the District Court’s failure to reach the merits” of
his ineffective assistance of trial counsel claim. Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). It is,
therefore, not the equivalent of a second or successive habeas petition and can be addressed without
precertification by the Eleventh Circuit. Id. at 535-38.

their investigation of the juror in question. (Docs. 151-52). Recognizing that his
ineffective assistance of trial counsel claim was procedurally defaulted, Sallie argued that
the ineffective assistance of state habeas counsel provided cause to overcome the
procedural default. (Docs. 152 at 7; 154 at 3-11). The Court denied Sallie’s motion to
amend his second amended habeas petition as futile because his ineffective assistance
of trial counsel claims were not timely filed. (Doc. 169). In summary, this Court denied
all of Sallie’s claims because they were barred by the statute of limitations. Both this
Court and the Eleventh Circuit refused to grant a Certificate of Appealabilty (“COA”).
(Docs. 171, 179-80). The United States Supreme Court denied Sallie’s petition for a writ
of certiorari on November 14, 2016. (Doc. 181). The next day, Sallie filed his
forty-seven page motion to reopen his habeas case. (Doc. 182). Respondent has filed
a response. (Doc. 187).
Prior to Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct.
1911 (2013), ineffective assistance of post-conviction counsel could not establish cause
to overcome the procedural default of any claim. Coleman v. Thompson, 501 U.S. 722,
752 (1991). These cases recognized a “narrow exception” to that general rule:
Ineffective assistance of post-conviction counsel may, in some limited circumstances,
provide cause to overcome the procedural default of an ineffective assistance of trial
counsel claim. Martinez, 132 S. Ct. at 1315, 1318, Trevino, 133 S. Ct. at 1918-21.
Since these cases were decided, federal habeas petitioners have sought to re-open their
closed §2254 actions under Federal Rule of Civil Procedure 60(b)(6) so that ineffective
assistance of trial counsel claims the courts previously ruled were procedurally defaulted
could be reviewed on the merits. See Griffin v. Sec’y, Fla. Dep’t of Corr., 787 F.3d 1086,

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1088 (11th Cir. 2015).
The Eleventh Circuit addressed a somewhat similar situation in Arthur v. Thomas,
739 F.3d 611 (11th Cir. 2014). Arthur’s petition, like Sallie’s, had been dismissed as
untimely. Id. at 621-222. After the Supreme Court decided Martinez, Arthur filed a Rule
60(b)(6) motion arguing that, “in light of . . . Martinez, the district court should reconsider
its December 2002 decision that dismissed [his] § 2254 petition as untimely.” Id. at 627.
The Eleventh Circuit upheld the district court’s denial of the motion for two reasons. Id.
at 630-33. First, Martinez and Trevino “explicitly relate[] to excusing a procedural default
of ineffective-trial-counsel claims and do[] not apply to AEDPA’s statute of limitations or
the tolling of that period.” Id. at 630. Thus, Martinez and Trevino are simply
inapplicable when a habeas petition is dismissed as untimely. Id. at 630-31. Second,
“[e]ven assuming” Martinez and Trevino applied, “a change in decisional law is
insufficient to create the ‘extraordinary circumstance’ necessary to invoke Rule 60(b)(6).”
Id. at 631 (citing Gonzalez v. Crosby, 545 U.S. 524, 535-38 (2005); Howell v. Sec’y Fla.
Dep’t of Corr., 730 F.3d 1257, 1260-61 (11th Cir. 2013)).
Sallie argues that Arthur may soon be reversed. (Doc. 182 at 7). It might, but
only to the extent that it held Martinez and Trevino can never qualify as an extraordinary
circumstance under Federal Rule of Civil Procedure 60(b)(6). The circuits are split on
this particular issue. Compare Cox v. Horn, 757 F.3d 113, 120-26 (3d Cir. 2014) (holding
that Rule 60(b)(6) motions premised on Martinez and Trevino may sometimes be
granted), and Ramirez v. United States, 799 F.3d 845, 850 (7th Cir. 2014) (same), and
Lopez v. Ryan, 678 F.3d 1131, 1135-37 (same), with Arthur, 739 F.3d at 631 (holding that
Rule 60(b)(6) motions based on Martinez and Trevino must be denied); Moses v. Joyner,

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815 F.3d 163, 168 (4th Cir. 2016) (same), and Abdur’Rahman v. Carpenter, 805 F.3d
710, 714 (6th Cir. 2015) (same); and Adams v. Thaler, 679 F.3d 312, 319-20 (5th Cir.
2012) (same). There are, as Sallie argues, cases pending before the Supreme Court
that might resolve this issue.3 The issue in Buck—the only case in which the Court has
actually granted certiorari—is whether the Fifth Circuit imposed an improper and unduly
burdensome COA standard. It is less than clear that, in addressing this question, the
Court will answer whether Martinez and Trevino may, in certain circumstances, provide
the extraordinary circumstances necessary for reopening a habeas case under Federal
Rule of Civil Procedure 60(b)(6).
What is clear, however, is that this Court is bound by decisions from the Eleventh
Circuit. At this time, the question of whether Martinez and Trevino permit a habeas
petitioner to reopen his petition under Federal Rule of Civil Procedure 60(b)(6) “is
foreclosed by binding circuit precedent.” Hamilton v. Sec’y, Fla. Dep’t of Corr., 793 F.3d
1261, 1266 (11th Cir. 2015). The fact that other circuits disagree or that the law may
change in the future does not negate the fact that “Arthur is controlling on us.” Id. For
this reason alone, the Court must deny Sallie’s motion.4
Apart from that and perhaps of more fundamental importance, Sallie overlooks
one very critical difference between his case and the cases pending before the Supreme
Court. In all of the pending cases, the habeas petitions were timely filed and the courts

3

On June 6, 2016, the Supreme Court granted certiorari in Buck v. Davis, No. 15-8049, a case from the
Fifth Circuit. Buck was argued on October 5, 2016. It appears the Court is holding three certiorari
petitions from the Sixth Circuit pending the outcome in Buck: Johnson v. Carpenter, No. 15-1193; Wright
v. Westbrooks, No. 15-7828; Abdur’Rahman v. Westbrooks, No. 16-144.
4

Sallie’s Fed. R. Civ. P. 60(b)(6) motion “challenges only the District Court’s failure to reach the merits” of
his ineffective assistance of trial counsel claim. Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). It is,
therefore, not the equivalent of a second or successive habeas petition and can be addressed without
precertification by the Eleventh Circuit. Id. at 535-38.

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found the petitioners’ ineffective assistance of trial counsel claims were procedurally
defaulted. Buck v. Thaler, 452 F. App’x 423, 426-27 (5th Cir. 2011); (Docs. 182-1 at 18;
182-2 at 12; 182-3 at 19). After Martinez and Trevino held that this particular procedural
default may, in limited circumstances, be excused, these petitioners filed their Rule
60(b)(6) motions to reopen their cases. Sallie’s ineffective assistance of trial counsel
claims were not procedurally defaulted—they were time-barred by AEDPA’s one-year
statute of limitations. (Doc. 169). As the Eleventh Circuit held in Arthur, “[b]ecause
[Sallie’s] § 2254 petition was denied due to his complete failure to timely file . . . , the
Supreme Court’s analysis in Martinez and Trevino of when and how ‘cause’ might excuse
noncompliance with a state procedural rule is wholly inapplicable here.” 739 F.3d at 631.
See Chavez v. Sec’y, Fla. Dep’t of Corr., 742 F.3d 940, 946 (11th Cir. 2014) (holding that
nothing in Martinez and Trevino “provides a basis for equitably tolling the filing deadline”)
(citing Arthur, 739 F.3d at 630-31)). There is absolutely no indication that this portion of
Arthur is at issue in the any of the cases pending before the Supreme Court. The Court,
therefore, fails to see how the Supreme Court’s ultimate decision Buck, or any of the
pending certiorari cases, would be relevant to Sallie’s closed habeas action.
For these reasons, Sallie’s motion (Doc. 182) and amended motion (Doc. 188) to
reopen his habeas action under Federal Rule of Civil Procedure 60(b)(6) are DENIED.
CERTIFICATE OF APPEALABILITY
“[A] COA is required before a habeas petitioner may appeal the denial of a Rule
60(b) motion.” Hamilton v. Sec’y, Fla. Dep’t of Corr., 793 F.3d 1261, 1265 (11th Cir.
2015). Pursuant to 28 U.S.C. 2253(c)(2), a COA may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” This requires a

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demonstration that “jurists of reason could disagree with the district court’s resolution of [a
petitioner’s] constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). When the Court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claims, the petitioner must show that
“jurists of reason would find it debatable whether the district court was correct in its
procedural ruling”; and (2) “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S.
473, 484 (2000).
Sallie cannot make these showings. His argument that Martinez and Trevino are
“exceptional circumstances” under Rule 60(b)(6) that warrant reopening a closed case
has been squarely foreclosed by binding Eleventh Circuit precedent. “[N]o COA should
issue where the claim is foreclosed by binding circuit precedent ‘because reasonable
jurists will follow controlling law.’” Hamilton, 793 F.3d at 1266 (quoting Gordon v. Sec’y,
Dep’t of Corr., 479 F.3d 1299, 1300 (11th Cir. 2007)).
Even if, as Sallie maintains, “jurists of reason could disagree on whether the law of
this circuit is correct” (Doc. 188 at 46), jurists of reason could not disagree that Martinez
and Trevino have absolutely no application in Sallie’s case. AEDPA’s statute of
limitations, not procedural default, prevented this Court from reviewing Sallie’s ineffective
assistance of trial counsel claim, along with the rest of his claims. (Docs. 169, 170, 171).
While the application of Martinez and Trevino might allow the Court to review a claim
previously found to be procedurally defaulted, their application would not allow the Court
to review a claim previously found to be time-barred. Thus, whether Martinez and

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Trevino are “exceptional circumstances” or not under Rule 60(b)(6) is completely
irrelevant in Sallie’s case.
Therefore, the Court refuses to grant a COA.
SO ORDERED, this 22nd day of November, 2016.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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