SEVERS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 25

OPINION. Signed by Judge Noel L. Hillman on 9/30/2020. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
WILLIAM SEVERS,
:
:
Petitioner,
:
Civ. No. 15-6421 (NLH)
:
v.
:
OPINION
:
THE ATTORNEY GENERAL OF THE
:
STATE OF NEW JERSEY, et al., :
:
Respondents.
:
______________________________:
APPEARANCES:
William Severs
539137 188285B
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner Pro se
Jennifer Webb-McRae, Cumberland County Prosecutor
Stephen C. Sayer, Assistant Prosecutor
Cumberland County Prosecutor’s Office
115 Vine Street
Bridgeton, NJ 08302
Counsel for Respondents
HILLMAN, District Judge
Petitioner William Severs has filed a motion for relief
from this Court’s dismissal of his habeas corpus petition as
untimely.

ECF No. 23.

denies the motion.

For the reasons that follow, the Court

I.

BACKGROUND
In 2005, Petitioner was convicted in New Jersey state court

of the offenses of murder, unlawful possession of a firearm,
unlawful possession of a weapon requiring an ID, and obstructing
the administration of the law.

See ECF No. 1 at 2.

Petitioner

filed a timely direct appeal, which became final on December 10,
2009, ninety (90) days after the New Jersey Supreme Court denied
his Petition for Certification on September 11, 2009.

Id. at 3-

8.
Petitioner filed a state court post-conviction relief
(“PCR”) petition on November 5, 2009.

Id. at 8.

The PCR court

conducted a hearing on September 22, 2011 and issued an order
denying the petition on October 4, 2011.

Id.

Petitioner

indicated he wanted to appeal at the September 22 hearing and
several other times.

He wrote to the Office of the Public

Defender twice telling them he wished to appeal.
6.

ECF No. 11 at

“And on October 20, 2011, Severs again informed his counsel

that he wished to appeal, and complained that as of that date,
counsel had communicated nothing further to him about filing it.
Severs did not file his post-conviction appeal until October 15,
2012.”

Severs v. Attorney Gen. of New Jersey, 793 F. App’x 72,

74 (3d Cir. 2019), cert. denied sub nom. Severs v. Grewal, 140
S. Ct. 829 (2020).

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Petitioner filed his habeas corpus petition under 28 U.S.C.
§ 2254 on August 21, 2015.

ECF No. 1.

Respondents filed a

motion to dismiss on the grounds that the petition was untimely
under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”).

ECF No. 10.

Petitioner argued he should be granted

equitable tolling because his PCR attorney was involved in a
serious car accident and was unable to timely perfect
Petitioner’s appeal.

ECF No. 11 at 4.

The Court concluded the petition was untimely under 28
U.S.C. § 2244.

ECF No. 12 at 7.

It further held that

Petitioner was not entitled to equitable tolling because he had
not shown reasonable diligence in pursing his PCR appeal.
at 10.
2018.

Id.

The Court granted the motion to dismiss on March 19,
ECF No. 13.

Petitioner appealed to the United States Court of Appeals
for the Third Circuit.

ECF No. 14.

The Third Circuit affirmed

this Court’s decision on November 5, 2019.

Severs v. Attorney

Gen. of New Jersey, 793 F. App’x 72, 74 (3d Cir. 2019).

The

United States Supreme Court denied a writ of certiorari on
January 13, 2020.

Severs v. Grewal, 140 S. Ct. 829 (2020).

On February 27, 2020, Petitioner filed the instant motion
for relief from judgment under Federal Rule of Civil Procedure
60(b)(6).

ECF No. 23.

He argues the Supreme Court’s decision

in Garza v. Idaho, 139 S. Ct. 738 (2019), warrants reopening of
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his habeas case.

ECF No. 24.

Respondents did not file

opposition to the motion.
II.

DISCUSSION
A.

Legal Standard

A Rule 60(b) motion is “addressed to the sound discretion
of the trial court guided by accepted legal principles applied
in light of all the relevant circumstances.”
638 F.2d 646, 648 (3d Cir. 1981).

Ross v. Meagan,

Rule 60(b) “does not confer

upon the district courts a ‘standardless residual of
discretionary power to set aside judgments.’”

Moolenaar v. Gov.

of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987).
Rule 60(b)(6) permits a court to relieve a party from a
final judgment for any reason that justifies relief.

“The

standard for granting a Rule 60(b)(6) motion is a high one. The
movant must show ‘extraordinary circumstances’ to justify
reopening a final judgment.”

Michael v. Wetzel, 570 F. App’x

176, 180 (3d Cir. 2014) (quoting Gonzalez v. Crosby, 545 U.S.
524, 536 (2005)).

“[E]xtraordinary circumstances involves a

showing that without relief from the judgment, ‘an “extreme” and
“unexpected” hardship will result.’”

Budget Blinds, Inc. v.

White, 536 F.3d 244, 255 (3d. Cir. 2008) (quoting Mayberry v.
Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)).

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B.

Analysis
The Court must first consider whether this motion is

properly brought under Rule 60(b) or whether it is a second or
successive § 2254 petition.

“AEDPA’s restrictions on the filing

of second or successive habeas petitions make it implausible to
believe that Congress wanted Rule 60(b) to operate under full
throttle in the habeas context.”

Rodwell v. Pepe, 324 F.3d 66,

67 (1st Cir. 2003); accord Pridgen v. Shannon, 380 F.3d 721, 727
(3d Cir. 2004). “[I]n 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.”

Pridgen, 380 F.3d at 727.

“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.”

Id.

Petitioner argues the Supreme Court’s decision in Garza,
holding that prejudice is presumed “when counsel’s
constitutionally deficient performance deprives a defendant of
an appeal that he otherwise would have taken” even if the
defendant signed an appellate waiver, 139 S. Ct. at 744,
warrants reopening his case.

He argues that the petition should

not have been dismissed as untimely because of the ineffective
assistance of PCR counsel in delaying the filing of his appeal.
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The Court concludes that this argument is not a second or
successive § 2254 petition.
Motions under Rule 60(b)(6) must be filed “within a
reasonable time” after the entry of judgment.
60(c)(1).

Fed. R. Civ. P.

The current motion was filed almost two years after

the judgment entered on March 19, 2018 and a year after the
Garza decision on February 27, 2019.

The Court concludes this

was not a reasonable amount of time for Petitioner to wait to
file his motion.
At the time the Garza decision was issued, Petitioner’s
appeal was pending in the Third Circuit.

The court of appeals

granted a certificate of appealability on the timeliness
question and appointed counsel to represent Petitioner on April
4, 2019.

Severs v. Attorney Gen. of New Jersey, No. 18-1822 (3d

Cir. Apr. 4, 2019).

The Third Circuit issued its decision on

November 5, 2019, well after Garza was decided.

Petitioner

could have presented his Garza argument to the Third Circuit or
to the Supreme Court.

Instead, it appears he waited until the

Third Circuit and Supreme Court denied his appeals before filing
asserting a right to relief based on Garza.
Alternatively, Petitioner has not shown the extraordinary
circumstances necessary for relief under Rule 60(b)(6).

The

Supreme Court has noted that “our cases have required a movant
seeking relief under Rule 60(b)(6) to show ‘extraordinary
6

circumstances’ justifying the reopening of a final judgment.
Such circumstances will rarely occur in the habeas context.”
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
Garza has little application to Petitioner’s case.

In

Garza, the Supreme Court concluded that the prejudice prong of
an ineffective assistance of counsel claim is presumed to have
been met when an attorney failed to file a notice of appeal at
the defendant’s request even if the defendant signed an
appellate waiver in a plea agreement.
749–50.

See Garza, 139 S. Ct. at

Petitioner went to trial; he did not sign a plea

agreement.

ECF No. 24-1 at 2.

Garza was merely the extension

of a rule that already existed at the time of Petitioner’s PCR
petition and initial habeas filing.
“The Supreme Court in Garza did not recognize a new right –
the Court by its own logic was merely applying the rule
announced in Roe v. Flores-Ortega, 528 U.S. 470 (2000), to those
circumstances where there was an applicable appellate waiver.”
Thieme v. United States, No. 19-15507, 2020 WL 1441654, at *3
(D.N.J. Mar. 24, 2020) (citing Garza, 139 S. Ct. at 745-48).
There is nothing about Garza that presents the extraordinary
circumstances necessary to warrant relief from this Court’s
order dismissing the petition as untimely.

See Gonzalez, 545

U.S. at 537 (“The change in the law . . . is all the less
extraordinary in petitioner's case, because of his lack of
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diligence in pursuing review” on the issue raised in the Rule
60(b)(6) motion).
As Petitioner has not shown the extraordinary circumstances
necessary to justify relief under Rule 60(b)(6), the Court will
deny the motion.
III. Conclusion
The Court will deny the motion for relief from judgment.
An appropriate Order will be entered.

Dated: September 30, 2020
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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