MOSES, et al v. POLK
Filing
90
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 2/13/2015, RECOMMENDED that Petitioner's Motion for Relief from Judgment (Docket Entry 85 ) be denied, without issuance of a certificate of appealability. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ERROL DUKE MOSES,
Petitioner,
v.
CARLTON JOYNER, Warden, Central
Prison, Raleigh, North Carolina,
Respondent.1
)
)
)
)
)
)
)
)
)
)
1:03CV910
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Pursuant
to
Federal
Rule
of
Civil
Procedure
60(b)(6),
Petitioner Errol Duke Moses, a prisoner of the State of North
Carolina subject to a death sentence, again2 seeks relief from the
now-nearly-decade-old judgment of this Court (Docket Entry 37),
which denied his Petition under 28 U.S.C. § 2254 (Docket Entry 6).
(See Docket Entry 85.)
Because Petitioner has failed to show
entitlement to relief, the Court should deny his instant Motion.
1
“Carlton Joyner has succeeded Gerald Branker as the Warden
of Central Prison.” (Docket Entry 88 at 1 n.1.) Joyner thus now
appears as Respondent. See Fed. R. Civ. P. 25(d).
2
Previously, Petitioner filed a Motion to Alter or Amend
Judgment (Docket Entry 38), which the Court (per United States
District Judge William L. Osteen, Sr.) denied (Docket Entry 43),
and a Motion for Relief from Judgment (Docket Entry 58), which the
Court (per United States District Judge Thomas D. Schroeder)
construed as a successive habeas petition and transferred to the
United States Court of Appeals for the Fourth Circuit (Docket Entry
72; see also Docket Entry 78 (documenting dismissal of Petitioner’s
appeal of that order)). The Fourth Circuit subsequently refused to
permit Petitioner to pursue his successive petition. In re Moses,
No. 13-1 (4th Cir. Feb. 7, 2013) (unpublished).
I.
BACKGROUND
Following his conviction for two counts of murder and the
imposition of a death sentence in Superior Court in Forsyth County,
North Carolina (“the trial court”), Petitioner appealed, whereupon
the North Carolina Supreme Court affirmed his convictions and
sentence (and the United States Supreme Court declined review).
State v. Moses, 350 N.C. 751, 517 S.E.2d 853 (1999), cert. denied,
528 U.S. 1124 (2000).
On September 15, 2000, Petitioner (through
counsel) filed a Motion for Appropriate Relief (“MAR”) in the trial
court.
(Docket Entry 12, Tab 5.)
(Id., Tab 7.)
He later amended that MAR.
In orders dated August 17, 2001, and September 6,
2001, the trial court denied Petitioner’s MAR (as amended).
Tabs 9, 11.)
(Id.,
The North Carolina Supreme Court declined review.
State v. Moses, 356 N.C. 442, 573 S.E.2d 160 (2002).
Petitioner (again via counsel) thereafter instituted this
action under Section 2254, asserting two claims for violations of
his Sixth Amendment right to effective assistance of counsel, the
first concerning comments by one of his trial attorneys during the
guilt phase and the second pertaining to his trial attorneys’
handling of the sentencing phase.
(Docket Entry 6.)3
On July 27,
2005, United Stated Magistrate Judge Russell A. Eliason recommended
3
The Petition nominally identified three grounds for relief
(see Docket Entry 6, ¶ 12(A), (B), & (C)); however, Grounds One and
Two involved the same underlying guilt phase ineffectiveness claim,
with Ground One addressing a threshold procedural default issue and
Ground Two addressing the merits (see id., ¶ 12(A) & (B)).
2
denial of the Petition.
(Docket Entry 30.)
Said Recommendation
observed that Petitioner’s sentencing phase ineffectiveness claim
“attempt[ed] to drastically broaden [the allegations from his
MAR].”
(Id. at 27.)
Specifically, “[i]n addition to counsel’s
alleged ineffectiveness for not presenting the humanizing testimony
of [Petitioner’s girlfriend and grandmother (as alleged in the
MAR)],
the
claim
.
.
.
include[d]
allegations
of
a
grossly
inadequate investigation . . . [and] contend[ed] that a proper
investigation would have uncovered a great deal of evidence that
demonstrated the details of his troubled childhood and that would
have further supported the sentencing phase argument that he was a
caring and worthwhile person.”
The
Recommendation
(Id.)
deemed
unexhausted
and
procedurally
“limit[ed]
its
review
of
those
barred
newly-raised
(id.
[P]etitioner’s
at
28-33)4
matters
and thus
[sentencing
phase]
ineffective assistance claim to the theory and facts raised in his
MAR” (id. at 33).
“[As] to the merits of that portion of the
4
Petitioner had opposed any finding of non-exhaustion and
procedural bar by contending that his MAR adequately presented to
the trial court the broad sentencing phase ineffectiveness claim
that Petitioner advanced in his Petition (Docket Entry 17 at 7) or
that, if his MAR did not properly preserve said claim, “ineffective
assistance of [MAR] counsel constitut[ed] cause [to excuse] the
default” (id.; see also id. at 7-11 (developing argument that
Petitioner’s MAR counsel provided ineffective assistance that
satisfied “cause and prejudice” exception to procedural bar)).
Magistrate Judge Eliason’s Recommendation rejected both such
positions (see Docket Entry 30 at 28-33), observing as to the
latter “that the constitutional right to counsel does not extend to
collateral proceedings” (id. at 33).
3
claim, . . . [the Recommendation found] that [trial] counsel’s
decision to rely solely on [Petitioner’s mother] for personal
mitigation testimony was a reasonable and effective trial strategy
considering the inconsistent and potentially damaging testimony
that could have come from [his girlfriend and grandmother].”
(Id.
at 33-34; see also id. at 34-35 (analyzing, in detail with record
citations, mitigation approach taken by Petitioner’s trial counsel,
its effectiveness, and risks of Petitioner’s new, proposed course,
including as perceived by his trial counsel at time of trial).)
Accordingly, regarding Petitioner’s sentencing phase ineffective
assistance of counsel claim, the Recommendation concluded “that the
state court’s decision that [P]etitioner [] failed to establish
deficient performance and resulting prejudice was neither contrary
to nor an unreasonable application of established federal law as
determined by the United States Supreme Court.”
(Id. at 36.)
By Order dated October 18, 2005, the Court (per United States
District Judge William L. Osteen, Sr.) adopted Magistrate Judge
Eliason’s foregoing Recommendation. (Docket Entry 36.) The Fourth
Circuit affirmed and the United States Supreme Court declined
review. Moses v. Branker, No. 06-8, 2007 WL 3083548 (4th Cir. Oct.
23, 2007) (unpublished), cert. denied, 554 U.S. 924 (2008).
The
Fourth Circuit’s decision, inter alia, “conclude[d] that [this]
[C]ourt did not err in holding that [Petitioner] failed to exhaust
in state court the [sentencing phase] ineffective assistance of
4
counsel claim now presented in his federal habeas [P]etition.” Id.
at
*3.
Further,
the
Fourth
Circuit
ruled
that
Petitioner’s
“conten[tion] in the alternative that the ineffectiveness of his
post-conviction (MAR) counsel constitute[d] cause for any default
on his part . . . [wa]s foreclosed by [the] decision in Mackall v.
Angelone, 131 F.3d 442 (4th Cir. 1997), which holds that the
ineffectiveness of post-conviction counsel cannot constitute cause
to excuse a procedural default.”
Moses, 2007 WL 3083548, at *3.
On August 11, 2005 (i.e., after entry of the above-referenced
Recommendation, but before its adoption by the Court), Petitioner
(once more through counsel) submitted a second MAR in the trial
court, asserting an ineffective assistance of counsel claim for
inadequate investigation and presentation of mitigation evidence
(addressing
the
same
matters
Magistrate
Judge
Eliason’s
Recommendation deemed unexhausted and procedurally-barred), as well
as
a
claim
that
Petitioner’s
original
MAR
counsel
provided
ineffective assistance by failing to conduct a proper mitigation
investigation
(and,
as
a
result,
to
raise
the
ineffective
assistance of trial counsel claim presented in the second MAR).
(Docket
Entry
34,
Exh.
1.)
The
trial
court
orally
denied
Petitioner’s second MAR on December 20, 2005, and entered a written
order to that effect on March 3, 2006.
(Docket Entry 85, App. 2.)
The North Carolina Supreme Court subsequently declined review.
State v. Moses, 360 N.C. 652, 639 S.E.2d 57 (2006).
5
On
October
1,
2009,
Petitioner
(yet
again
via
counsel)
tendered a third MAR to the trial court, this time claiming that
the
State
had
violated
his
federal
constitutional
rights
as
construed, inter alia, in Brady v. Maryland, 373 U.S. 83 (1963),
and Napue v. Illinois, 360 U.S. 264 (1959), by failing to disclose
an immunity agreement with a witness who testified at trial and by
knowingly failing to correct false testimony at trial about the
issue of immunity.
(Docket Entry 58, Attach. 1.)
The trial court
denied that third MAR by order dated July 9, 2010.
2.)
(Id., Attach.
The North Carolina Supreme Court thereafter declined review.
State v. Moses, ___ N.C. ___, 706 S.E.2d 246 (2011).
Based on the same allegations raised in his third MAR, on
September 23, 2011, Petitioner, “through counsel and pursuant to
Rule 60(b)(6) of the Federal Rules of Civil Procedure, move[d] this
Court for relief from its final judgment [denying his Petition].”
(Docket Entry 58 at 1; see also id. at 21 (“In the alternative,
[Petitioner] requests that this Court exercise its authority to set
aside a judgment ‘for fraud on the court’ pursuant to [Federal]
Rule [of Civil Procedure] 60(d)(3).”).)
The Court (per United
States District Judge Thomas D. Schroeder) treated that filing as
a successive habeas petition and transferred it to the Fourth
Circuit.
(Docket Entry 72; see also Docket Entry 78 (documenting
dismissal of Petitioner’s appeal of that order).)
6
The Fourth
Circuit then denied authorization for successive habeas litigation.
In re Moses, No. 13-1 (4th Cir. Feb. 7, 2013) (unpublished).
On August 19, 2014, Petitioner (via counsel) filed his instant
Motion. (Docket Entry 85.) Respondent has responded (Docket Entry
88) and Petitioner has replied (Docket Entry 89).
II.
DISCUSSION
Petitioner seeks relief under Federal Rule of Civil Procedure
60(b)(6) because, “[i]n Martinez [v. Ryan, ___ U.S. ___, 132 S. Ct.
1309 (2012)], the [United States Supreme] Court announced an
exception to longstanding precedent and found that, under certain
circumstances, and for purposes of habeas review, post-conviction
counsel’s failure to raise ineffective assistance of trial counsel
claims could excuse a procedural default of those claims.” (Docket
Entry 85 at 5.)
Specifically, Petitioner contends that “[his]
allegations regarding [his] trial counsel’s failure to adequately
investigate and present mitigating evidence [which this Court ruled
procedurally barred] . . . fall within the Martinez exception.”
(Id. at 6; see also id. at 8 (“The intervening change in law
represented by Martinez, permitting the federal courts to excuse a
petitioner’s procedural default based on ineffective assistance of
post-conviction counsel, directly overruled the decision [by this
Court] for which reconsideration has been sought.”).)
Petitioner
thus asks the Court to revive his sentencing phase ineffective
assistance of counsel claim by “vacating the judgment entered on
7
October
18,
2005,
entirety[.]”
dismissing
(Id. at 10.)
[his]
[P]etition
.
.
.
in
its
The Court should reject that request.
“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,
evidence.”
added).
including fraud, mistake,
and
newly
discovered
Gonzalez v. Crosby, 545 U.S. 524, 528 (2005) (emphasis
“Rule 60(b)(6), the particular provision under which
[P]etitioner brought his [instant] [M]otion, permits reopening when
the movant shows ‘any reason justifying relief from the operation
of the judgment’ other than the more specific circumstances set out
in Rules 60(b)(1)-(5).”
Id. at 528-29 (quoting Fed. R. Civ. P.
60(b)(6)) (internal ellipses omitted).
Court has
limited
the
universe
of
The United States Supreme
such “other”
reasons
that
“justify[] relief” by “requir[ing] a movant seeking relief under
Rule 60(b)(6) to show ‘extraordinary circumstances’ justifying the
reopening of a final judgment.”
Id. at 535 (quoting Ackermann v.
United States, 340 U.S. 193, 199 (1950) (emphasis added)); see also
Aiken v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en banc) (“To
give Rule 60(b)(6) broad application would undermine numerous other
rules that favor the finality of judgments . . . .”); Dowell v.
State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir.
1993) (“Although Rule 60(b)(6) is a catchall provision . . ., case
law limits the reasons for which a court may grant relief under
Rule 60(b)(6).”).
Further, the Supreme Court has emphasized that
8
“[s]uch circumstances will rarely occur in the habeas context.”
Gonzalez, 545 U.S. at 535 (emphasis added).
Finally, in the
specific area of habeas claims-processing rules, the Supreme Court
has declared that a post-judgment change in controlling precedent
“is hardly extraordinary.”
Id. at 537 (emphasis added).
Consistent with the foregoing principles articulated by the
Supreme Court, the Fourth Circuit long has held that “a change in
decisional law subsequent to a final judgment provides no basis for
relief under Rule 60(b)(6).”
Dowell, 993 F.2d at 48 (citing Hall
v. Warden, Md. Penitentiary, 364 F.2d 495, 496 (4th Cir. 1966) (en
banc)) (emphasis added); see also Wadley v. Equifax Info. Servs.,
LLC, 296 F. App’x 366, 369 (4th Cir. 2008) (“Nor was the change in
decisional
law
.
.
.
sufficient
to
establish
‘extraordinary
circumstances’ under Rule 60(b)(6).” (citing Dowell, 993 F.2d at
48)).
Moreover, courts in the Fourth Circuit (including this one)
consistently have applied Dowell to deny Rule 60(b)(6) motions in
collateral review cases where the petitioners relied on postjudgment changes in precedent that may have undermined prior
rulings made against them. See, e.g., Jeffus v. United States, No.
1:13CV446, 6:92CR184-2, 2013 WL 10091470, at *1 (M.D.N.C. Oct. 29,
2013) (unpublished) (Peake, M.J.), recommendation adopted, 2015 WL
224949 (M.D.N.C. Jan. 15, 2015) (unpublished) (Tilley, S.J.);
United States v. Pride, No. 1:07CR20, 2012 WL 569852, at *2 (W.D.
Va.
Feb.
22,
2012)
(unpublished),
9
aff’d
in
part
and
appeal
dismissed in part, 487 F. App’x 123 (4th Cir. 2012); United States
v. Kelley, Crim. No. 3:04-998-CMC, 2010 WL 5140593, at *3 (D.S.C.
Dec. 13, 2010) (unpublished); Colwell v. Warden, Broad River Corr.
Inst., C.A. No. 0:10-1100-HMH-PJG, 2010 WL 2429319, at *1 (D.S.C.
June 11, 2010) (unpublished), appeal dismissed, 403 F. App’x 787
(4th Cir. 2010); Moore v. Powell, No. 3:97CV595, 2001 WL 34804603,
at *1 (E.D. Va. Apr. 30, 2001) (unpublished).
This Court should
take the same approach here and should deny Petitioner’s attempt to
resurrect a habeas claim denied nearly a decade ago based on the
intervening change in procedural default rules wrought by Martinez.
Petitioner fails to mention Dowell and its progeny and instead
suggests that this Court follow decisions from three other circuits
that purportedly “have held that the ‘important’ or ‘remarkable’
change in law occasioned by the 2012 decision in Martinez could
constitute
one
of
the
equitable
considerations
that
may
be
considered in deciding whether relief should be granted under Rule
60(b)(6).”
(Docket Entry 85 at 5 (internal citation omitted)
(citing Cox v. Horn, 757 F.3d 113 (3d Cir. 2014), petition for
cert. filed (Nov. 5, 2014), Haynes v. Stephens, 576 F. App’x 364
(5th Cir. 2014), and Lopez v. Ryan, 678 F.3d 1131 (9th Cir.), cert.
denied, ___ U.S. ___, 133 S. Ct. 55 (2012)); see also Docket Entry
89 at 3 (citing, in addition to Cox and Lopez, Barnett v. Roper,
941 F. Supp. 2d 1099 (E.D. Mo. 2013)).)
As an initial matter, “the
binding Fourth Circuit rule, not [any Third, Fifth, or Ninth]
10
Circuit rule, guides this [C]ourt.”
Barbagello v. Potter, No.
1:04CV839,
(M.D.N.C.
2005
WL
2460725,
at
*2
Oct.
4,
2005)
(unpublished) (Osteen, Sr., J.); see also Cockerham v. Stokes Cnty.
Bd. of Educ., 302 F. Supp. 2d 490, 496 (M.D.N.C. 2004) (Osteen,
Sr., J.) (“[T]his [C]ourt is bound to follow the Fourth Circuit’s
interpretation[s] of [law].”); Pettyjohn v. Mission-St. Joseph’s
Health Sys., Inc., 202 F.R.D. 208, 209 (W.D.N.C. 2001) (“[T]he
proposed ‘clear error of law’ that plaintiffs perceive . . . is
this court’s refusal to depart from the clear and binding decisions
of the Court of Appeals of the Fourth Circuit in favor of decisions
from
other
position.
circuits
which
are
more
favorable
to
plaintiffs’
This court simply cannot ignore the well-settled and
binding law of this circuit.”).
Further, the unpublished Fifth Circuit decision identified by
Petitioner does not stand for the cited proposition.
576 F. App’x at 365.
“denied
[the
See Haynes,
Specifically, in that case, the Fifth Circuit
petitioner’s]
application
[for
a
certificate
of
appealability] on the grounds that Martinez, which [the petitioner]
tried to claim the benefit of in his 60(b)(6) motion, did not apply
in Texas because Texas inmates could raise claims of ineffective
assistance of counsel on direct appeal.”
Id. (internal citation
omitted). “After [that] opinion was issued, the Supreme Court held
in Trevino v. Thaler, ___ U.S. ___, ___, 133 S. Ct. 1911, 1921
(2013), that the rule from Martinez [] does apply in collateral
11
challenges
to
Texas
convictions.
The
Supreme
Court
granted
certiorari to [the petitioner], vacated [the Fifth Circuit’s]
judgment, and remanded for further consideration in light of
Trevino.”
Id. (internal parallel citation omitted).
“Pursuant to
the Supreme Court’s order, [the Fifth Circuit] . . . remand[ed] to
the district court to reconsider its denial of [the petitioner’s]
Rule
60(b)(6)
motion
in
light
of
Trevino.”
Id.
(internal
capitalization for emphasis omitted).
In so doing, the Fifth Circuit expressed no opinion as to
whether Martinez (or Trevino) could serve as a basis for relief
under Rule 60(b)(6); to the contrary, the Fifth Circuit explicitly
“return[ed] th[e] case to the district court without additional
advisory instructions as to how to exercise its discretion when
considering whether [the petitioner] meets the prerequisites for
obtaining relief under Rule 60(b)(6).”
Id. (emphasis added).
Moreover, published authority from the Fifth Circuit directly
contradicts Petitioner’s position.
See Adams v. Thaler, 679 F.3d
312, 320 (5th Cir. 2012) (“Because the Martinez decision is simply
a change in decisional law and is not the kind of extraordinary
circumstance
petitioner’s]
that
warrants
60(b)(6)
relief
motion
is
under
Rule
without
60(b)(6),
merit.”
[the
(internal
quotation marks omitted)); see also Diaz v. Stephens, 731 F.3d 370,
376-79 (5th Cir.) (holding that Trevino did not invalidate Adams,
but nonetheless “assum[ing] arguendo that [another Fifth Circuit
12
decision describing a variety of factors that could bear upon
resolution
of
Rule
60(b)
motions
generally]
may
have
some
application in the Rule 60(b)(6) context” and ruling that said
factors did not support relief in that case), cert. denied, ___
U.S. ___, 134 S. Ct. 48 (2013).
“Similarly, [the Eleventh Circuit has] h[e]ld that the change
in the decisional law affected by the Martinez rule is not an
‘extraordinary circumstance’ sufficient to invoke Rule 60(b)(6).”
Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir.), cert. denied, ___
U.S. ___, 135 S. Ct. 106 (2014).
the same conclusion.
The Seventh Circuit also reached
See Nash v. Hepp, 740 F.3d 1075, 1078 (7th
Cir. 2014) (“[The petitioner] argues that . . . Martinez[] and
Trevino . . . constitute extraordinary circumstances warranting
relief from
judgment
under
Rule
60(b)(6).
This
argument
is
foreclosed by precedent; a change in law showing that a previous
judgment
may
have
been
incorrect
is
not
an
‘extraordinary
circumstance’ justifying relief under Rule 60(b)(6).”).
District
courts in the Second and Fourth Circuits have ruled likewise.
See
Fuller v. Cartlidge, No. 0:09CV1352RBH, 2014 WL 607475, at *3
(D.S.C. Feb. 18, 2014) (unpublished) (“[T]he [c]ourt finds no basis
to reconsider its rejection – as procedurally barred – of [the]
[p]etitioner’s] habeas claim . . . .
The decision in Martinez does
not give rise to the extraordinary circumstances that would justify
relief from judgment under Rule 60(b)(6).”), appeal dismissed, 575
13
F. App’x 112 (4th Cir. 2014); Figueroa v. Walsh, No. 00CV1160(NGG),
2013 WL 2250208, at *3 (E.D.N.Y. May 22, 2013) (unpublished) (“The
Martinez decision is not an extraordinary circumstance meriting
relief under Rule 60(b)(6).”).
To the extent the Court opts to look past Dowell, it should
follow
the
foregoing
authority
from
the
Fifth,
Seventh,
and
Eleventh Circuits, as well as district courts within the Second and
Fourth Circuits, and should deem Martinez (and Trevino) an improper
foundation for relief under Rule 60(b)(6).
That approach adheres
to the Supreme Court’s teaching in Gonzalez about the meaning of
Rule 60(b)(6)’s “extraordinary circumstances” requirement because
(in the words of the Seventh Circuit) post-judgment challenges
premised
on
Martinez
“involve[]
the
mundane
and
‘hardly
extraordinary’ situation in which the district court applied the
governing rule of procedural default at the time of its decision
and the caselaw changed after judgment became final,” Nash, 740
F.3d at 1078-79 (quoting Gonzalez, 545 U.S. at 536) (other internal
quotation marks omitted); see also Figueroa, 2013 WL 2250208, at *4
(“The court’s decision – over ten years ago – was correct under the
then-prevailing law regarding procedural default.
The fact that
the Supreme Court changed precedent more than a decade later is not
an extraordinary circumstance . . . .”).5
5
Petitioner’s instant Motion asserts that he “does not offer
the change in decisional law affected by the Martinez rule alone as
(continued...)
14
III.
CONCLUSION
Petitioner has failed to show entitlement to relief under
Federal Rule of Civil Procedure 60(b)(6).
5
(...continued)
a basis for relief pursuant to Rule 60(b)(6).
Petitioner has
demonstrated other ‘extraordinary circumstances’ and that he would
suffer ‘extreme hardship’ if the [C]ourt failed to grant relief
from judgment.” (Docket Entry 85 at 6.) It appears Petitioner
bases that assertion on his analysis of how the circumstances of
his case relate to five factors which the Ninth Circuit considered
in Lopez (i.e., “[P]etitioner’s diligence,” “the interest in
finality,” “‘delay between the finality of the judgment and the
motion for Rule 60(b)(6) relief,’” “the degree of connection
between [Petitioner’s] case and Martinez,” and “comity”) and one
factor which the Third Circuit mentioned in Cox (i.e., the
obligation of courts to “treat with particular care claims raised
in capital cases”). (See id. at 6-9.) Substantial doubt exists as
to whether the cited factors actually favor Petitioner’s position
(as he suggests); for example, although Petitioner declares that he
has acted with “extraordinary diligence” (id. at 7), he waited
nearly two and a half years after the Supreme Court decided
Martinez to file the instant Motion. That fact not only suggests
a lack of diligence, but arguably provides an independent basis to
deny relief. See Boyle v. Kelly, No. 5:06CV117SWW, 2015 WL 235205,
at *1 n.4 (W.D. Ark. Jan. 16, 2015) (unpublished) (“[T]he [c]ourt
agrees with [the] respondent that [the petitioner] did not file his
motion, which again relies, inter alia, on Martinez and Trevino,
within a reasonable time as required by Fed. R. Civ. P. 60(c).”
(citing In re Paredes, 587 F. App’x 805, 824-25 (5th Cir. 2014),
for proposition that Rule 60(b)(6) motion filed 30 months after
Martinez and 17 months after Trevino was untimely)).
More
importantly, however, at no point, has Petitioner developed any
argument that he qualifies for relief under Rule 60(b)(6)
independent of Martinez. (See Docket Entry 85 at 4-9; Docket Entry
89 at 1-5.) Under such circumstances, as the pending certiorari
petition filed by the respondent in Cox observes, any purported
reliance on a “‘multi-factor’ test . . . masks reality. . . .
Nothing in the ‘balance’ of ‘equities’ has moved except that
Martinez was decided. . . . If [the petitioner] and defendants
like him receive relief under Rule 60(b)(6), it will only be
because habeas procedures changed.” Petition for Writ of Cert. at
12, Wetzel v. Cox, No. 14-531 (U.S. Nov. 5, 2014). Pursuant to
Gonzalez and Dowell, this Court should hold that such decisional
changes cannot support relief under Rule 60(b)(6).
15
IT IS THEREFORE RECOMMENDED that Petitioner’s Motion for
Relief from Judgment (Docket Entry 85) be denied, without issuance
of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 13, 2014
16
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