AUSTIN v. GILLIS, et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE MARK A. KEARNEY ON 9/18/17. 9/19/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND D.A.-PHILA. COUNTY, E-MAILED TO COUNSEL.(pr, ) Modified on 9/19/2017 (pr, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA, et al
September 18, 2017
Parties must timely seek reconsideration of an Order even when incarcerated and
challenging a federal judge's denial of a petition for habeas corpus based on alleged errors in the
state court trial resulting in conviction. It becomes even more difficult to seek reconsideration of
an Order after our court of appeals denies the right to appeal the Order.
be sought within a reasonable time. When, as today, a party seeks reconsideration of a May 21,
2003 Order which our court of appeals twice denied a request to review and without presenting
meritorious grounds for his delay, we must enter the accompanying Order denying his motion for
reconsideration of the same May 21, 2003 Order denying habeas relief.
In October 1994, the state court tried Robert Austin on charges of murder and robbery. A
Philadelphia county jury found him guilty of murder in the first degree and robbery in October
As the jury could not reach an unanimous decision on the penalty for the first degree
murder conviction, Judge Stout sentenced Mr. Austin to consecutive terms of life in prison for
his murder conviction and ten to twenty years for his robbery conviction.2 Mr. Austin appealed
to the Pennsylvania Superior Court which denied his appeal. 3
Mr. Austin petitioned the
Pennsylvania Supreme Court for allowance of appeal and it denied his petition. 4
Mr. Austin filed a pro se petition under Pennsylvania's Post-Conviction Relief Act and
the Commonwealth appointed counsel for him. 5
Mr. Austin's counsel found no merit and
requested and granted permission to withdraw his appearance from the Post-Conviction Relief
Act court. 6 Mr. Austin requested new counsel and the court denied his request. 7 Mr. Austin did
not appeal this decision or proceed prose with his petition. 8
In September 2002, Mr. Austin petitioned for a writ of habeas corpus challenging
evidence at trial.
Judge Pollak of this court approved and adopted Chief Magistrate Judge
Melinson' s report and recommendation and, as reasoned in a nine page opinion, denied his
petition on May 21, 2003 as untimely. 9 Mr. Austin requested a certificate of appealability from
our court of appeals which it denied. Our court of appeals also denied Mr. Austin's request to
file a second or successive habeas petition on August 20, 2004.
In September 2015, over fourteen years after Judge Pollak denied Mr. Austin's petition,
he now asks we reopen and reconsider the May 21, 2003 Order under Fed. R. Civ. P. 60(b)
arguing Judge Stout made an improper evidentiary and dispositive finding regarding his guilt
contrary to the Commonwealth's expert witness. As best as we can discern, Mr. Austin did not
raise this issue in his 2002 habeas petition.
Having twice failed on habeas relief, Mr. Austin now hopes to reargue Judge Pollak's
May 21, 2003 Order based on Federal Rule of Civil Procedure 60(b ).
We may grant relief from a final judgment under Fed. R. Civ. P. 60(b) where there is "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
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." 10
Mr. Austin faces a timeliness obstacle as "motion under Rule 60(b) must be made within
a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of
the judgment or order or the date of the proceeding." 11 Though there is no clear definition of
"reasonable time," our court of appeals has held a period of less than two years is not a
reasonable time. 12 Over fourteen years have passed since Judge Pollak's Order.
Before turning to the merits of whether we can address entirely new arguments
challenging his 1994 conviction possibly not raised before Judge Pollak in 2002 and 2003, we
need to address the timeliness of Mr. Austin's present tact.
The only possible ground under
Rule 60(b) would be a showing of "any other reason" justifying relief under Rule 60(b)(6).
A Rule 60(b)(6) motion must also be filed within a reasonable time. Mr. Austin is
challenging Judge Pollak's May 21, 2003 denial of his first habeas corpus petition. 13
Fraticelli v. Piazza, the district court held five years after the initial judgment constituted an
unreasonable time for a 60(b)(6) motion. 14 In Thompson v. Superintendent Coal Township SCI,
our court of appeals held three years as an unreasonable amount of time for a Rule 60(b)(6)
Our court of appeals examined whether petitioner had an excuse justifying the three
years in delay before filing. 16 Finding no excuse, our court of appeals rejected the Rule 60(b)(6)
application. 17 Mr. Austin's 60(b)(6) motion is much longer than these periods.
Mr. Austin argues his Rule 60(b)(6) motion is made within a reasonable time because he
is filing his petition within a reasonable time after the Supreme Court decided Buck v. Davis and
the Pennsylvania Supreme Court dismissed his appeal. 18 It is unclear whether Mr. Austin is
arguing Buck's clarification of the Supreme Court's decision as to the raising of a claim of
ineffective assistance of post-conviction counsel in Martinez v. Ryan is the event which marks
the beginning of the reasonable time for filing a Rule 60(b)(6) motion for relief or if his case
marks the "extraordinary circumstances" enumerated by Buck as the only way for a Rule
60(b)(6) motion to proceed in the habeas corpus context. 19 On both arguments, Mr. Austin fails.
In Martinez v. Ryan, the Supreme Court considered whether a prisoner could establish
cause for a procedural default exception to Fed. R. Civ. P. 60(b) in the context of an ineffective
assistance of counsel claim raised during the "initial-review collateral proceedings." 20 Martinez
involved a prisoner convicted of illegal sexual acts attempting to bring an ineffective assistance
of counsel claim against his appellate counsel, arguing she had done an insufficient job on his
direct appeal. 21 On appeal, Martinez's counsel began collateral proceedings but failed to argue
his trial counsel had been ineffective. 22 When Martinez later attempted to raise this argument in a
subsequent habeas petition, the court dismissed his claim as procedurally defaulted. 23 On appeal
the Supreme Court addressed the standard from Coleman v. Thompson, 24 holding a prisoner
could not show cause to excuse a procedural default based on an attorney's errors in directappeal post-conviction relief "because the attorney is the prisoner's agent ... under well settled
principles of agency law, the principal bears the risk of negligent conduct on the part of his
agent." 25 This decision barred prisoners by default from bringing ineffective assistance claims in
a subsequent collateral proceeding if their attorney did not raised the claim in the initial collateral
proceeding. 26 In Martinez, the Court created a narrow exception to this rule, holding a prisoner
may establish cause for a procedural default in initial review collateral proceedings because of
the "key difference between initial-review collateral proceedings and other kinds of collateral
proceedings." 27 The Court recognized prisoners are ill-equipped to represent themselves, lacking
a brief from counsel or an opinion from the court and often assert ineffective assistance claims
agamst the very attorneys representmg them on appea1.
Based on this risk to prisoners of inadvertently waiving their right to bring an ineffective
assistance claim, the Court created two circumstances for a prisoner to establish cause for a
procedural default in ineffective assistance cases. 29 First, cause for default is warranted if "the
state courts did not appoint counsel in the initial-review collateral proceeding," or second,
"appointed counsel in [the] proceeding ... was ineffective under the standards of Strickland v.
Washington." 30 To prevail, the prisoner must demonstrate their underlying ineffective assistance
claim is a "substantial one," possessing "some merit."31 However, even in creating this equitable
procedure to examine initial-review collateral proceedings, the Court cautioned "[t]he rule in
Coleman governs all but the limited circumstances recognized here." 32 Martinez did not address
the issue of timeliness in relation to Rule 60(b)(6), extending only so far as excusing default in
the context of initial review collateral proceedings.
Five years after Martinez, the Supreme Court clarified its position on a narrow part of
default under Rule 60(b)(6) in Buck v. Davis. 33 In Buck, a prisoner challenged his 1995 life
sentence for murder based upon the testimony of a psychologist called by his attorney who
testified he posed a statistically higher risk to society based upon his race. 34 Buck did not raise an
ineffective assistance of counsel claim in his first habeas petition. 35 The court found subsequent
attempts to raise the issue to be barred by procedural default under Coleman. 36 In the meantime,
the Court issued Martinez, recognizing cause for procedural default in ineffective assistance of
counsel cases and Buck appealed. 37 The Court considered whether the questions about Buck's
race presented during sentencing would allow federal review of his defaulted ineffective
assistance claim. 38 Relief under the catchall provision of Rule 60(b)(6) is only available in
"extraordinary circumstances" which "rarely occur in the habeas context." 39 Buck argued the
racial nature of the testimony at his sentencing allowed him to avoid procedural default and
reopen his ineffective assistance claim. 40 The Court agreed, citing the state's confession it had
erred by allowing racial testimony in other cases similar to Buck's and the insidious role race
plays in the justice system. 41 Allowing discrimination on the basis of a person's skin color
"poisons the public confidence" in the judicial process and amounts to the extraordinary
circumstances Rule 60(b)(6) is designed to address. 42
If Mr. Austin is arguing Buck marks an event from which his Rule 60(b)(6) motion
should be measured, we agree with other courts denying this same argument. 43 Our court of
appeals has held Martinez to be a habeas decision from which certain Rule 60(b)(6) motions
may be timed, but Buck is too narrow of a clarification to be given the same treatment as to
Even if Mr. Austin could use Buck as a point to mark a reasonable time for his present
petition, a Rule 60(b)(6) motion in habeas cases is only available in extraordinary circumstances.
In Beck, the court found extraordinary circumstances based on an implication a jury had
sentenced the petitioner to death due to expert evidence which implicated race as a factor for
violence. 45 Our court of appeals further enumerated Rule 60(b)(6)'s application in habeas issues
as being extremely rare. 46
Mr. Austin argues his case is extraordinary due to the findings of the trial court being
contrary to part of the testimony of the Commonwealth's expert witness. 47 This is not a case
where racism is implicated in the expert testimony, as in Buck. Mr. Austin's claim is yet another
challenge to Judge Stout's 1994 findings as contrary to testimony presented to her. He disagrees
with the state court judge's findings.
He cites no evidence of an overriding extraordinary
circumstance rising to the level of "extraordinary" necessary for considering a Rule 60(b)(6)
motion challenging a 2003 Order from Judge Pollak.
Mr. Austin's arguments as to the
timeliness of his Rule 60(b)(6) petition are rejected.
Mr. Austin does not proffer extraordinary grounds to allow us to consider his Rule
60(b)(6) motion asking to amend a May 21, 2003 Order denying his habeas petition. Instead, we
find unreasonable time between the May 21, 2003 Order and his September 2017 motion.
deny his motion to reopen his habeas corpus petition under Rule 60(b)(6) in the accompanying
ECF Doc. No. 26 at 2.
Fed. R. Civ. P. 60(b).
Fed. R. Civ. P. 60(c).
Moolenar v. Government of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987).
ECF Doc. No. 26.
Fraticelli v. Piazza, No. 08-688, 2008 WL 2152058 (E.D. Pa., May 22, 2008).
Thompson v. Superintendent Coal Township SCI, No. 17-1239, 2017 WL 3272205 (3d Cir.
ECF Doc. No. 33, p. 10.
Compare Id. at p. 10 ("In 2017 the United States Supreme Court decided Buck v. Davis ... a
requirement of a Rule 60(b) motion is that it be made in a reasonable time. The petitioner had an
appeal pending in the State Supreme Court which was denied after the Buck decision.") with Id.
at p. 9 ("This is a case that qualifies as an extraordinary case.") (citing Buck v. Davis, 137 S.Ct.
Martinez, 556 U.S. at 8.
Id. at 4.
Id. at 6-7.
Coleman v. Thompson, 501 U.S. 722 (1991).
Martinez, 556 U.S. at 10 (citing Maples v. Thomas, 132 S.Ct. 912, 922 (2012)(internal
Martinez, 556 U.S. at 10.
Martinez, 556 U.S. at 10.
Id. at 11.
Id. at 14.
Strickland v. Washington, 466 U.S. 668 (1984).
Martinez, 556 U.S. at 14.
Id. at 16.
Buck v. Davis, 137 U.S. 759 (2017).
Id. at 770-71.
Id. at 770.
see Id. at 772
Id. at 772.
Id. at 772 (citing Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)).
See Id. at 778.
Id. at 778-79 (citing Davis v. Ayala, 135 S.Ct. 2187, 2208 (2015).
Williams v. Kelley, 855 F.3d 833, 836, n. 2 (8th Cir. 2017)("And while the recent Buck
decision clarifies that a Rule 60(b)(6) motion can be a successful mechanism to raise a claim of
Martinez default post-judgment, Davis concedes that Martinez and Trevino represent "the
revolution in the law" applicable to this case.")( citing Martinez v. Ryan, 566 U.S. 1 (2012) and
Trevino v. Thaler, 133 S.Ct. 1911 (2013)).
See Cox v. Horn, 757 F.3d 113, 116 (3d Cir. 2014)("[I]t is important that we acknowledgeand, indeed, we warn-that, unless a petitioner's motion for 60(b)(6) relief based on Martinez
was brought within a reasonable time of that decision, the motion will fail.").
Buck, 137 S.Ct. at 778.
Cox v. Horn, 757 F.3d 113, 125 (3d Cir. 2014) (citing Gonzalez v. Crosby, 545 U.S. 524, 53536 (2005)).
ECF Doc. No. 33, p. 5.
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