TOKLEY v. RICCI et al

Filing 58

OPINION. Signed by Judge Kevin McNulty on 6/23/15. (DD, )

UNITED STATES DISTRICT CO1JRT
DiSTRICT OF NEW JERSEY

I)ANA I. TOKI..EY,
Civil Action No. 09-4546
Petitioner,
v.

OPiNION

MICHELLE RICCI, et al.,

Respondents.

MCNULTY, District Judge:

The petitioner, Dana T. Tokley, is in custody as a result of’ a New Jersey state criminal
conviction. He has filed a motion pursuant to Fed. R. Civ. P. 60(b) (the “Motion”), in which he
seeks relief from the Court’s January 20, 2012 denial of his Petition for Writ of Habeas Corpus
under 28 U.S.C.

§ 2254. For the reasons stated below, the Court denies the Motion.
I.

FACTUAL BACKGROUND

The Hon. Katharine S. Hayden of this Court provided a comprehensive statement of the

case in an opinion, dated January 20, 2012, in which she denied Tokley’s petition for a writ of
habeas corpus. (ECF No. 39, “Prior Opinion.”) Familiarity with Judge Hayden’s Prior Opinion is
assumed; I provide only a brief summary of relevant facts here.
On April 3, 2000, Tokley was convicted, in a jury trial, of robbery and possession of a
weapon for an unlawful purpose. (ECF No. 1 at 2.) On September 1, 2009, after exhausting his
state court remedies, Tokley filed a federal habeas corpus petition with this Court. (ECE” No. I.)
Pursuant to this Court’s order, Respondents filed an Answer. (ECF Nos. 15, 20.) Tokley iiled a
Reply. (ECF No. 23.) With leave of the Court, Respondents filed a surreply. (ECF No. 28.)

On January 20, 2012, Judge Hayden issued the Prior Opinion and Order denying the
Petition. The Court held that Tokley had not satisfied his burden of showing that the state court
decision denying his petition for post-conviction relief was either contrary to clearly established
federal law, an unreasonable application of clearly established federal law, or an unreasonable
determination of the facts. See Prior Opinion at 9-24. Finding that reasonable jurists could
disagree with her resolution of two of Tokley’s claims, however, Judge Hayden granted a
Certificate of Appealability as to those two grounds. Id. at 24-25.
On February 1,2012, Tokley tiled a Notice of Appeal, 3d Cir. I)ocket No. 12-1307. (ECF
No. 41.) By judgment entered November 22, 2013, the United States Court of Appeals for the
Third Circuit affirmed Judge Hayden’s Prior Opinion and Order. (ECF No. 49.) On March 16,
2015, more than 15 months after the Third Circuit judgment, Tokley tiled this Rule 60(b)
motion. (ECF No. 51.) On June 16, 2015, the case was reassigned from Judge Hayden to me.
(ECF No. 57.)
11.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 60(b) provides that “the court may relieve a party
from final judgment, order or proceeding” under certain circumstances. The general purpose of
Rule 60(b) is “to strike a proper balance between the conflicting principles that litigation must be
brought to an end and that justice must be done.” Walsh v. Kranlz, 423 F. Appx 177, 179 (3d
Cir. 2011) (per curiam) (quoting Boughner v. Sec’y of Health, Educ. & Welfare, 572 F.2d 976,
977 (3d Cir. 1978)). “Rule 60(b) is a provision for extraordinary relief and may be raised only
upon a showing of exceptional circumstances.” lvfendez v. Sullivan, 488 F. App’x 566, 568 (3d
Cir. 2012) (per curiarn) (citing Sawka v. Healtheust, Inc., 989 F.2d 138, 140 (3d Cir. 1993)).
“Rule 60(b) provides that a motion for relief from judgment or order ‘shall be made within a

reasonable time,’ or if based on mistake, newly discovered evidence, or fraud, ‘not more than
one year after the judgment, order, or proceeding was entered or taken.” United States v.
Fiorelli, 337 F.3d 282, 288 n.3 (3d Cir. 2003).
Grounds for relief from judgment under Rule 60(b) are:
(1) 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 5 9(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.
The Rule 60(b) grounds most pertinent to Tokley’s Motion are subsections (5) and (6).
Rule 60(b)(5) addresses certain changed circumstances that affect the validity or fairness
of a judgment. “Rule 60(b)(5) may not be used to challenge the legal conclusions on which a
prior judgment or order rests, hut the Rule provides a means by which a party can ask a court to
modify or vacate a judgment or order if ‘a significant change either in factual conditions or in
law’ renders continued enforcement ‘detrimental to the public interest.” Home v. Flores, 557
U.s. 433, 447 (2009) (quoting Rub v, Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)).
The moving party bears the burden of establishing such changed circumstances. See Id.
Rule 60(b)(6) is a catch-all provision which provides that a party may be relieved from a
final judgment or order for “any other reason that justifies relief.” Relief will not be granted
under Rule 60(b)(6) absent extraordinary and special circumstances. See Pridgen v. Shannon,

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380 F.3d 721, 728 (3d Cir. 2004) (citation omitted). “Such circumstances rarely occur in the
habeas Context.” See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
111.

DISCUSSION

The Motion is not entirely clear, hut I gather that Tokicy is asserting that there has been a
relevant change in the law. “Intervening changes in the law rarely justify relief from final
judgments under 60(h)(6),” Cox v. Horn, 757 F.3d 113, 121-22 (3d Cir. 2014). “Rarely,”
however, does not mean “never”; in “extraordinary circumstances,” such relief may be
appropriate. Id. I therefore consider Tokley’s assertion that, two months afier the Prior Opinion
and Order, the Supreme Court decided Martinez

i’.

Ryan, 132 S.Ct. 1309 (2012).

Some background is required. In general, a procedural default in state court will bar
federal collateral review of an issue, unless the default is excused by “cause and prejudice.” One
acceptable “cause” for procedural default is ineffective assistance of counsel in the criminal case.
in general, however, a prisoner must take advantage of procedural opportunities in the criminal

case or on direct appeal; ineffective assistance in post-conviction proceedings will not excuse a
procedural default. See Coleman v. Thompson, 501 U. S. 722, 750 (1991).
That model, however, does not account for claims which, under State procedures, cannot
be brought on direct appeal, and may only be brought in State post-conviction collateral
proceedings. Most pertinently, certain States permit ineffective trial counsel claims to he brought
only in State post-conviction collateral proceedings. In such an “initial-review collateral
proceeding” State—New Jersey is one—the State collateral proceeding is not a second bite; it is
the State court’s first opportunity to consider an ineffective assistance claim. 1-lence Martinez v.
Ryan, supra.

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Martinez, decided shortly after the Prior Opinion in this case, held as follows: “Where,
under state law, claims o.f ineffective assistance of trial counsel must be raised in an initialreview collateral proceeding, a procedural defliult will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.” 1 32 S.Ct. at
1320. For a defendant in an “initial-review collateral proceeding” State (like New Jersey), postconviction collateral review is the first, perhaps only, opportimity to assert the Sixth Amendment
right to challenge the effectiveness of trial counsel. Id. at 1315. Parity suggests that such a
defendant—just like a defendant in a non-initial-review collateral proceeding State—should be
permitted to demonstrate that counsel’s deficient performance sacrificed his or her only
opportunity to assert a claim of ineffective assistance at trial. Id. at 13 17-18. To put it another
way, the rule of Martinez was “crafted

...

to ensure that fundamental constitutional claims

receive review by at least one court.” Cox, 757 F.3d at 124.
All very well. Tokley’s Motion, however, does not explain how Martinez might alter, or
even apply to, his case. In New Jersey post-conviction-relief (PCR) proceedings, which included
a three day evidentiary hearing, the State court considered and denied multiple claims of
ineffective assistance of counsel at trial. In the Prior Opinion (ECF No. 39), Judge Hayden
considered all of the ineffective assistance claims that Tokley chose to renew in his habeas
petition. She denied them, but on the merits, not on the basis of procedural default. I will assume,
however, that Tokley means to argue that Martinez, if it had been decided earlier, would have
permitted him to make additional claims of ineffective assistance in his habeas petition. This
Rule 60(b) motion must nevertheless he denied, for at least three reasons:

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First, the Motion is barred because it was not made within a reasonable time. Rule 60(b)

requires that

motions on

grounds (1), (2), or (3) he made within one year after the judgment

being challenged. This Motion, however, appears to fall under ground (5) or ground (6). Thus it
is subject only to the Rule’s more general requirement that a motion be made “within a
reasonable time.” Fed. R. Civ. P. 60(c)(1). See also Davenport v. Brooks, No. 06-5070, 2014 WL
1413943, at *5 (RD. Pa. Apr. 14, 2014) (“There is no specific time limit for filing motions
pursuant to Rule 60(b)(5) and (h)(6). But, they must he filed within a ‘reasonable time.”)
(citations omitted). To determine whether a Rule 60(h)(5) motion is timely, a court will consider
“whether the parties have been prejudiced by the delay and whether a good reason has been
presented for failing to take action sooner.” BUC

ml

‘1 Corp. v. tnt ‘1 Yacht Council l,td., 517 F.3d

1271, 1275 (11th Cir. 2008) (quoting United Stales v. Boch Oldsmobile, Inc., 909 F2d 657, 661
(1st Cir. 1990)). The general one-year limit remains a rule of thumb: “A motion under Rule
60(b)(6) filed more than a year after final judgment is generally untimely unless ‘extraordinary
circumstances’ excuse the party’s failure to proceed sooner.” Gordon v. Monoson, 239 F. App’x
710, 713 (3d Cir. 2007).
Applying those standards, I find that this Motion is untimely. Martinez was decided on
March 20, 2012, just two months after the Court denied Tokley’s habeas petition. This Rule
60(b) Motion, however, was not filed until March 16, 2015, nearly three years later. I might
leniently disregard the time during which that Prior Opinion and Order were on appeal.’ Even so,
that leaves over 15 months unaccounted for. Tokley offers no reason, good or otherwise, for
failing to file his Motion promptly after either (1) the Martinez decision or (2) the Third Circuit

I say “leniently” because any relevant authority, including Martinez, could and should
have been cited in Tokley’s appellate brief. And he might have sought leave of the Court of
Appeals, or a remand, to assert any claim newly authorized by Martinez.
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aftirmance. Accordingly, I find that the Motion was not filed within a reasonable time, and hence
is untimely under rule 60(c)(l). See United States cx rd. Priisker v. Sodexho, Inc., 493 F. App’x
309, 312 (3d Cir. 2012) (holding that a two-year delay in filing a Rule 60(h)(6) motion was
unreasonable); Wilson-Simmons v. Compoli, 42 F. App’x 754, 757 n.2 (6th Cir. 2002) (holding
that a Rule 60(h)(5) motion, filed ten months after the movant became aware of the changed
circumstances, was not filed within a reasonable time).
Second, even assuming arguendo that the Motion was timely, Tokley would still not be
entitled to relief. l’he Third Circuit and other Courts of Appeals have held that Martinez does not
apply retroactively. See Cox v. Horn, 757 F.3d 113, 124 (3d Cir. 2014); Adams v. Thaler, 679
F.3d 312, 322 n.6 (5th Cir. 2012); MeGuire v. Warden, (‘hillicothe Corr. Inst., 738 F.3d 741,
750-51 (6th Cir. 2013); Buenrostro

i’.

United States, 697 F.3d 1137, 1139-40 (9th Cir. 2012);

Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014). Where a decision is non-retroactive as a
matter of law, it makes little sense to cite it as a “changed circumstance” that permits relief.
Third, even if I were to consider the merits of Tokley’s claim under Martinez, I would be
bound to deny it. The Third Circuit has held that “the jurisprudential change rendered by
Iv[artinez, without more, does not entitle a habeas petitioner to Rule 60(b)(6) relief.” Cox, 757
F.3d at 124. Other strong “equitable” factors must be present. Tokley fails to identify any such
compelling equitable considerations.
i’o begin with, Tokley’s Motion fails to assert any error of consequence. That is, he fails
to identify any claim that was barred under the pre-Martinez regime, hut would now he viable
post-Martinez. Martinez, remember, holds only that post-conviction counsel’s negligent failure
to raise an ineffective assistance claim (or the complete absence of post-conviction counsel) may
constitute “cause” that excuses procedural default. 132 S.Ct. at 1319. The Prior Opinion and

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Order do not bar any claim based on procedural default. The current Motion lists eleven claims
of ineffective assistance of trial and appellate counsel. All eleven were raised in State PCR
proceedings. (See ECF No. 20-33 at 4-6.) Thus there is no procedural default that requires a
Martinez-based excuse. At any rate, the Motion does not explain how ineffective assistance
caused any claim to be raised incompetently, or not at all, on collateral review.
Nor can Tokley be asserting any direct claim based on the alleged negligence of postconviction counsel. He possesses no such ineffective-assistance claim, because there is no
constitutional right to effective post-conviction counsel. Coleman
752 (1991); see 28 U.S.C.

i

Thompson, 501 U.S. 722,

§ 2254(i) (“The ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254”).
Nor is this a case where the defendant’s ineffective assistance claims “were never
considered.” Cox, 757 F.3d at 124. On the contrary, as pointed out above, those claims were
considered, in whole or in part, in State PCR proceedings, in Judge Hayden’s federal habeas
opinion (ECF 39 at pp. 9-20), and on appeal to the Third Circuit (ECF 48).
Nor are there any special circumstances, such as a Court’s duty to “treat with particular
care claims raised in capital cases.” Cox, 757 F.3d at 126, Although Tokley is serving a very
significant sentence of imprisonment, this is not a capital case.
In sum, Tokley has not stated valid grounds for relief under Rule 60(b).

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IV.

CONCLUSION

For the reasons set fbrth above, Tokley’s Motion for relief from judgment under Rule
60(b), Fed. R. Civ. P., is DENIED.
‘t
Kevin McNulty, U.S.D.J.

Dated: June 23, 2015

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