BARKLEY v. ORTIZ, et al

Filing 94

OPINION. Signed by Judge Kevin McNulty on 9/13/2019. (sms)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RASHAUN BARKLEY.

Civ. No. 01-4530 (KM)

Petitioner,
V.

OPINION

ALFARO ORTIZ, et a!.,
Respondents.

KEVIN MCNULTY. U.S.D.J.
I.

INTRODUCTION

Petitioner, Rashaun Barkley, is a state prisoner who commenced this habeas proceeding
pro se in 2001. Presently pending before this Court is a sixth motion by Mr. Barkley seeking
relief from the order denying his habeas petition, under Federal Rule of Civil Procedure 60(b).
(DE 9L) For the following reasons, the motion will be denied.
H.

BACKGROUND

United States District Court Judge Faith S. Hochberg denied Mr. Barkley’s petition for
writ of habeas corpus on its merits in August 2004, and the Court of Appeals for the Third
Circuit affirmed that decision in 2006. Thereafter, Mr. Barkley filed several motions for relief
from judgment under Rule 60(b). Judge Hochberg denied Rule 60(b) motions by Mr. Barkley in
April 2011, June 2011, January 2012, and June 2012. In each denial, Judge Hochberg construed
Mr. Barkley’s motion as an attempt to file a second or successive habeas petition, which the
Court may not consider absent authorization by the Court of Appeals. (See DE 57, 67, 78, 81.)
In April 2016. following Judge Hochberg’s retirement, Mr. Barkley filed another Rule
60(b) motion, which was assigned to me. In that motion, Mr. Barkley asserted that, following the

denial of his habeas petition, he learned of a plea offer that his trial counsel had rejected without
lirst presenting it to him. Furthemwre. he alleged that his entire trial file had been lost or
destroyed by the Public Defender’s Office or his defense counsel. (See DE 84.)
On September 8, 2016, I denied that motion. (DE 85, 86.) In that opinion, I explained:
To the extent that [Mr. Barkley] asserts that counsel was
ineffective for failing to relay a plea offer to him, he is challenging
the underlying conviction. As described above, this is not an
appropriate subject of a Rule 60(b) motion; it is in substance a
second or successive habeas petition. Mr. Barkley does not assert
that he has received authorization from the United States Court of
Appeals for the Third Circuit for such a second or successive
petition. Accordingly. this Court is without jurisdiction to address
the claim.
(DE 85 at 4 (citation omitted).) I noted, however, that Mr. Barkley “also appears to be
challenging this Court’s initial denial of his habeas petition by asserting that this Court did not
have access to his trial file.” (Id.) I concluded that, though this could bc considered an argument
aimed at vacating his habeas denial, Mr. Barkley had failed to demonstrate the “extraordinary
circumstances” needed to justify relief under Rule 60(b)(6). (Id. at 4—5.)
I subsequently denied a motion by Mr. Barkley for reconsideration of the order denying
his Rule 60(b) motion, finding that his “contentions are not properly considered on a motion for
reconsideration, because they contain nothing that was not, or could not have been, raised on the
earlier motion.” (DE 89 at 3.) As Judge Hochberg had done previously, I explained as follows:
Mr. Barkley’s Rule 60(b)motion constituted a challenge to his
underlying conviction. Although styled a Rule 60(b) motion, it was
in fact a second or successive § 2254 petition. Such a second or
successive petition cannot be filed without authorization from the
United States Court of Appeals for the Third Circuit. Accordingly,
the Rule 60(b) motion was properly rejected.

(Id. at 4.) 1 additionally reiterated that “Mr. Barklcy is free to seek leave from the Third Circuit
to file a second or successive habeas petition.” (Id. at 4 n. I.)

III.

THE PRESENT MOTION

Mr. Barkley has now filed another motion in which he seeks relief from judgment under
Rule 60(b). (See Pet.’s Mem. in Supp., DE 91 at ECF pp. 5—16 [hereinafter, “Pet’r’s Mem.”].)
He alleges that in June 2016 he received additional case documents from the Essex County
Clerk, including a pre-trial order dated December 13, 1993, which “states in black ink at the top.
that a plea of 20/10 was offered by the State.” (Pet’r’s Mem. at 3.) Mr. Barkley has included a
copy of this order, which bears the signatures of his trial counsel, the prosecutor, and the
presiding judge; Mr. Barkley stress that, although it includes a line for the defendant to
personally sign, it does not bear his signature. (Id,; see also Ex., DE 91 at ECF p.22.)
Mr. Barkley also asserts that, in July 2016, he obtained a certification by the prosecutor in
his criminal case, now-New Jersey Superior Court Judge Stephen J. Taylor, confirming that he
communicated a plea offer for a 20-year sentence with a 10-year parole disqualifier to defense
counsel. (Pet’r’s Mem. at 5.) Mr. Barkley has included a copy of this certification, in which
Judge Taylor states that “Barkley verbally rejected this offer and refused to sign the Pre-Trial
Order.” (Ex., DE 91 at ECF pp. 69—71.)
Mr. Barkley indicates that he filed a motion for a new trial on July 7,2016, which the
state court converted to a petition for post-conviction relief (“PCR”) and subsequently denied.
(Pet’r’s Mem, at 5—6.) The New Jersey Superior Court, Appellate Division, affirmed the denial,
and the Supreme Court of New Jersey subsequently denied a petition for certification. (Id. at 6.)
As in his fifth Rule 60(b) motion, Mr. Barkiey asserts that the State violated RuleS of the
Rules Governing

§

2254 Cases because it failed to submit the entire state-court record. (Id. at 8—

10.) He contends that he ‘was never made aware of the plea offer until years after the trial,” and
that “the state withheld the evidence of the existence of a plea.” (Id. at 9—10.) Mr. Barkley

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contends that this motion should not be construed as a second or successive habeas petition
because it is not a collateral attack on his conviction. (Sue Id. at 10—11.) Instead, he urges, he
seeks relief from the 2004 habeas denial “based on the fact that the court[’]s judgment was
founded primarily on an erroneous determination of the facts of the state court due to the
intentional omission of the relevant state court record.” (Jet, at 11.)
Respondents have opposed this motion, relying on their prior filings and asserting that
Mr. Barkley “again presents no basis to disturb any of this Court’s previous orders.” (DE 93.)
IV.

DISCUSSION

Federal Rule of Civil Procedure 60(b) states as follows:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
(I) mistake, inadvertence. surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. Civ. p. 60(b). Mr. Barkley expressly seeks relief under the catch-all provision of Rule
60(b)(6). As noted in my opinion denying the fifth Rule 60(b) motion, “where, 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.” (DE 85 at 3 (quoting
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Jones v. Lagana, No. 12-5823, 2016 WL 4154677, at

*

1—2 (D.N.J. Aug. 3, 2016)).) In Pridgen v.

Shannon. 380 F.3d 721 (3d Cir. 2004), the Third Circuit explained,
[ljn 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.
Id. at 727.
Mr. Barkley’s central argument for relief from judgment, that Judge Hochberg denied his
habeas petition without seeing all relevant trial documents, is substantively unchanged from that
asserted in his fifth Rule 60(b) motion. The only difference now is that Mr. Barkley
subsequently’ obtained more trial documents that he contends support his claims. The additional
evidence, however, does not lend any support to an attack on “the manner in which the earlier
habeas judgment was procured.” Fridgen, 380 F.3d at 727. Rather, this evidence pertains only to
the argument Mr. Barkley first asserted in his fifth Rule 60(b) motion that his trial counsel
provided ineffective assistance by rejecting a plea offer without consulting Mr. Barkley. Thus,
Mr. Barkley’s new arguments and evidence fail to meet the high ‘extraordinary circumstances’
standard required for relief under Rule 60(b)(6). They do not have any bearing on Judge
Hochberg’s denial of Mr. Barkley’s habeas petition, because the relevant claim simply was not
presented at that time. (See ECF No. 1.)
The only way in which Mr. Barkley’s new evidence may pertain to his case is as support
for a newly asserted claim of ineffective assistance of counsel. A new claim for relief may only

I
Although Mr. Barkley indicates that he obtained these documents after filing his fifth Rule 60(b)
motion, it seems lie had them at least two months before I issued the opinion and order denying that
motion. (See Pet’s Mem. at 3, 5.)

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be asserted in a second or successive habeas petition authorized by the appropriate Court of
Appeals. See 28 U.S.C.

§

2244(b). Yet Mr. Barkley expressly disclaims any desire to pursue this

avenue of relief Indeed, he stresses in his supporting memorandum that he “is not seeking to
collateral[ly] attack the underlying conviction.” (Pet.’s Mem. at II.) In any case, this Court is
without jurisdiction to address this new claim. Given Mr. Barkley’s clearly expressed desire no!
to pursue a second or successive habeas petition, I do not find it in the interest ofjustice to
transfer this motion to the Third Circuit as a request to tile such a petition under 28 U.S.C.

§

1631. As he has been previously instructed, Mr. Barkley is free, of course, to independently file a
request with the Third Circuit for authorization to file a second or successive habeas petition.
The Court declines to issue a Certificate of Appealability because Mr. Barkley has not
made a substantial showing of the denial of a constitutional right. See 28 U.S.C.
V.

§

2253(c).

CONCLUSION

For the foregoing reasons, Mr. Barkley’s sixth Rule 60(b) motion for relief from
judgment will be denied. An appropriate order will be entered.

/kr

DATED: September 13, 2019

K yIN MCNULIY
United States District Judge

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