PETERSON v. BRENNAN, et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 6/9/15. 6/11/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EDWARD C. PETERSON,
WARDEN EDWARD BRENNAN,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADEPHIA, and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
JUNE 9, 2015
Petitioner Edward Peterson (“Peterson”) was convicted of two counts of first degree
murder on March 10, 1988. Presently before the Court is Peterson’s “Motion to Reopen
Judgment Under F.R.C.P. 60(b)(6)” (“Rule 60(b) Motion”). Peterson argues that the United
States Court of Appeals for the Third Circuit’s decision in Cox v. Horn, 757 F.3d 113 (3d Cir.
2014) and extraordinary circumstances permit the Court to consider his claims.
The facts of this case are taken from the Court’s Opinion issued on June 15, 2004. See,
2004 WL 1505253 (E.D. Pa. June 15, 2004). Peterson was convicted of two counts of first
degree murder on March 10, 1988. Peterson’s post-trial motions were denied. Peterson initially
sought pretrial habeas corpus relief in this Court. That petition was denied on October 2, 1987,
for failure to exhaust state remedies. The Court of Appeals affirmed the denial on February 29,
1988. While his post-trial motions were pending in state court, Peterson filed a second petition
for writ of habeas corpus in this Court. That petition was dismissed on October 18, 1990, for
failure to exhaust state remedies. The Court of Appeals dismissed Peterson’s appeal of that
ruling for lack of appellate jurisdiction.
Peterson subsequently filed two pro se direct appeals to the Pennsylvania Superior Court.
The Superior Court quashed the first appeal on the ground that petitioner's pro se brief precluded
effective appellate review. Petitioner's second appeal challenged a trial court order that denied
his petition to compel production of certain evidence. The Pennsylvania Superior Court quashed
that appeal on January 17, 1991. On October 17, 1991, the Pennsylvania Supreme Court denied
Peterson’s Petition for Allowance of Appeal from the Superior Court's decisions to quash the
On May 26, 1992, Peterson filed a pro se petition under the Pennsylvania PostConviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541, et seq. After counsel was appointed he
filed an amended PCRA petition. The Pennsylvania Superior Court affirmed the judgment of
sentence on September 22, 1995. The Pennsylvania Supreme Court denied Peterson’s Petition
for Allowance of Appeal on May 22, 1996.
Peterson filed a third petition for writ of habeas corpus relief in this Court on May 19,
1997. That petition was dismissed without prejudice as a “mixed petition” consisting of both
exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982) (directing dismissal of mixed petitions in the interests of comity).
Peterson then returned to state court and filed a second pro se PCRA petition on January
7, 1999 and an amended second pro se PCRA petition on June 17, 1999. The second and
amended second PCRA petitions were dismissed as time-barred on August 9, 1999. The
Superior Court affirmed the dismissals on September 13, 2000. That court denied reargument on
April 30, 2001. The Pennsylvania Supreme Court denied Peterson’s Petition for Allowance of
Appeal on April 30, 2001.
Peterson returned to this Court and filed a pro se “Verified First Amended Habeas
Petition” on May 10, 2001 (“2001 Petition”) and a pro se “Verified Second Amended Habeas
Petition” on December 3, 2001. Those petitions were denied and dismissed on December 23,
On January 9, 2003, Peterson filed a motion for reconsideration pursuant to Federal Rule
of Civil Procedure 59(e). On June 15, 2004, the motion for reconsideration was granted in part
with respect to consideration of his March 7, 2002 “Verified Letter Memorandum in Lieu of
Motion for Leave to Supplement Petition for Writ of Habeas Corpus,” and denied in all other
Peterson filed the instant Rule 60(b) Motion on December 3, 2014. It is dismissed as
untimely filed for the reasons set forth below.
Rule 60(b) provides, in relevant part, that relief from judgment may be granted on the
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any other
reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b). The general purpose of the Rule is “to strike a proper balance between the
conflicting principles that litigation must be brought to an end and that justice must be done.”
Boughner v. Sec’y of Health, Educ. and Welfare, 572 F.2d 976, 977 (3d Cir. 1978). “The
decision to grant or deny relief pursuant to Rule 60(b) lies in the ‘sound discretion of the trial
court guided by accepted legal principles applied in light of all the relevant circumstances.’”
United States v. Hernandez, 158 F.Supp. 2d 388, 392 (D. Del 2001) (quoting Ross v Meagan,
638 F.2d 646, 648 (3d Cir. 1981)).
“All motions filed pursuant to Rule 60(b) must be made within a ‘reasonable time.’” In re
Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab. Litig., 383 F. App’x 242,
246 (3d Cir. 2010). “What constitutes a ‘reasonable time’ under Rule 60(b) is to be decided
under the circumstances of each case.” Id. (citation omitted). “As a general matter, a Rule
60(b)(6) motion filed more than one year after final judgment is untimely unless ‘extraordinary
circumstances excuse the [party’s] failure to proceed sooner.” Ortiz v. Pierce, No. 08-4877,
2014 WL 3909138, at *1 (D. Del. 2014 (citing Ackerman v. United States, 340 U.S. 193, 202
In his Rule 60(b) Motion Peterson asserts claims that trial counsel had a conflict of
interest and deliberately withheld exculpatory evidence and that the trial judge refused to
investigate or address the alleged conflict of interest. He also argues that the Rule 60(b) Motion
was timely because he filed it within 87 days after the Court of Appeals decided Cox. The Court
concludes that the Rule 60(b) Motion was not timely filed for the reasons set forth below.
The Court concludes that Peterson’s Rule 60(b) Motion, in which he seeks relief from the
Court’s Order dated June 15, 2004, was not filed within a reasonable time. First, Peterson filed
the Motion more than 10 years after the entry of the Order of June 15, 2004. The Court rejects
Peterson’s argument that the Rule 60(b) Motion is timely because he filed it within 87 days after
the Court of Appeals decided Cox.
The Court first notes that in Martinez v. Ryan, 566 U.S. ____, 132 S.Ct. 1309 (2012), the
Supreme Court held that “[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, [i.e., a collateral proceeding
that provides the first occasion for a defendant to raise a claim that trial counsel was ineffective,]
a procedural default 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.” Id. at 1320. Martinez effected a change in the
Supreme Court’s habeas corpus jurisprudence, which previously had not recognized a claim for
ineffective assistance of counsel at the post-trial stage that would excuse procedural default of a
petitioner's claim. Recognizing this, in Cox the Court of Appeals provided guidance for district
courts considering Martinez in Rule 60(b) motions and in habeas cases and remanded the Rule
60(b) motion at issue to the district court for reconsideration in light of that guidance. See Cox,
757 F.3d at 124.
In Cox, the Court of Appeals made clear "at the outset that one of the critical factors in
the equitable and case-dependent nature of the 60(b)(6) analysis ... is whether the 60(b)(6)
motion was brought within a reasonable time of the Martinez decision." Cox, 757 F.3d at 115-16.
The panel did not provide a specific time frame that it deemed reasonable, stating only that the
petitioner's motion, which was filed 90 days after the Martinez decision, "[wa]s close enough to
that decision to be deemed reasonable." Id. at 116. However, the Cox court warned that "unless a
petitioner's motion for 60(b)(6) relief based on Martinez was filed within a reasonable time of
that decision, the motion will fail." Id.
The Supreme Court filed its opinion in Martinez on March 20, 2012. Peterson filed his
Rule 60(b) Motion on December 3, 2014, more than two years after Martinez was decided. The
Court concludes that such filing was not within a reasonable time of the Martinez decision.
Peterson erroneously relies on Cox as a basis for relief, but that reliance is misplaced. Cox
merely provided guidance for district courts considering Martinez in Rule 60(b) motions and in
habeas motions. Moreover, Peterson fails to detail any “extraordinary circumstances” which
might justify his delay in filing. See Zahl v. Harper, 403 F. App’x 729, 733-734 (3d Cir. 2010).
Cox does not provide any basis for relief where, as in this case, a Rule 60(b) motion seeking
relief under Martinez is not filed within a reasonable time and no extraordinary circumstances
A Certificate of Appealability Will Not Issue
A certificate of appealability shall issue only if a petitioner establishes “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court
concludes that Peterson has not made such a showing with respect to his motion. Therefore, a
certificate of appealability will not issue.
For the foregoing reasons the court dismisses Peterson’s Rule 60(b) Motion as untimely.
An appropriate Order follows.
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