RICHARDSON v. PIAZZA et al
MEMORANDUM AND ORDER THAT UPON CONSIDERATION OF RICHARDSON'S PETITION FOR RELIEF FROM JUDGMENT (DOC. NO. 43), AND FOR THE REASONS OUTLINED IN THE ABOVE MEMORANDUM, IT IS HEREBY ORDERED THE PETITION IS DENIED.. SIGNED BY HONORABLE LOUIS H. POLLAK ON 7/19/11. 7/21/11 ENTERED AND COPIES MAILED TO PRO SE PETIITONER, E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MELVIN KEITH RICHARDSON,
DAVID A. VARANO, et al.,
MEMORANDUM & ORDER
Petitioner Melvin Keith Richardson, a state prisoner, seeks relief from the previous
judgment of this court denying his petition for habeas corpus. Docket No. 33.
Richardson asserts that this court committed two errors by (1) not holding an evidentiary
hearing on his claims of ineffective counsel, and (2) misapplying case law relating to the
cause and prejudice standard for excusing a petitioner’s procedurally defaulted habeas
claims. Docket No. 43. For the reasons stated below, Richardson’s motion will be
Denial of Richardson’s Habeas Petition
On April 9, 2008, Richardson filed an amended habeas corpus petition for relief
from his conviction for crimes including burglary, aggravated assault, and fleeing or
attempting to elude police. Docket No. 15. Richardson raised fourteen separate grounds
for relief, including that his pretrial, trial, appellate, and Pennsylvania Post Conviction
Relief Act (“PCRA”) counsel each were ineffective. In denying his petition, I rejected
one of Richardson’s claims on the merits, held one of his claims—for ineffective-PCRAcounsel—as not cognizable in a federal habeas proceeding, and found his other twelve
claims procedurally defaulted because he failed to present them to the state courts. See
Docket No. 33. Richardson also failed to show the requisite cause to excuse the
procedural default of his claims; the only cognizable cause asserted was that his later
counsel were ineffective for failing to present his claims to the state courts, but all such
claims concerning his trial and appellate counsel were themselves procedurally defaulted.
See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (holding that “an ineffectiveassistance-of-counsel claim asserted as cause for the procedural default of another claim
can itself be procedurally defaulted”). Thus, I denied the habeas petition, and Richardson
filed the present motion for relief from that judgment pursuant to Fed. R. Civ. P. 60(b).
Under Rule 60(b), the court may relieve a party from a final judgement, order, or
proceeding for any of six enumerated reasons, including “mistake,” “newly discovered
evidence,” or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). A Rule 60
motion “is addressed to the sound discretion of the court.” Boughner v. Sec’y of Health,
Educ. & Welfare, 572 F.2d 976, 977 (3d Cir. 1978). The Third Circuit has described Rule
60(b) motions as “extraordinary relief which should be granted only where extraordinary
justifying circumstances are present.” Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991).
Richardson asserts that this court erred by dismissing his habeas petition without
first holding an evidentiary hearing to inquire into his claims of attorney ineffectiveness
and abandonment. Docket No. 43. Because these claims were never presented to the
state courts and therefore were procedurally defaulted, the only purpose of holding an
evidentiary hearing would have been to ascertain if the attorney ineffectiveness itself
caused the procedural default. In such a context, the Third Circuit has held that an
“evidentiary hearing should not be available to a habeas petitioner who claims relief from
the exhaustion rule unless the petitioner sets forth facts with sufficient specificity that the
district court may be able, by examination of the allegations and the response, to
determine if further proceedings are appropriate.” Mayberry v. Petsock, 821 F.2d 179,
186 (3d Cir. 1987). Thus, just as with habeas determinations made on the merits,
conclusory allegations will not suffice to require discovery or an evidentiary hearing in
determining whether non-exhausted claims can be excused. Id. at 185. The extent of
Richardson’s allegations against his appellate or PCRA counsel—the only counsel that
could have caused his procedural default—is that his appellate counsel “left out multiple
issues of merit” without any “logical basis” for doing so. Docket No. 43 at 13.
Richardson thus fails to make any allegations with sufficient specificity to warrant an
Moreover, Richardson’s reliance on Holland v. Florida, 130 S. Ct. 2549 (2010), is
unavailing. Holland dealt with a habeas petitioner whose petition was dismissed as
untimely1 and who provided a litany of allegations that suggested an “‘extraordinary’
instance in which petitioner’s attorney’s conduct constituted far more than ‘garden
variety’ or ‘excusable neglect.’” Id. at 2564. Most importantly, the Holland Court did not
address when a district court should hold an evidentiary hearing on a claimed excuse from
a procedural default, but merely instructed the court below that a hearing may be
necessary to determine if Holland’s petition should be equitably tolled. Id. at 2565. For
these reasons, the court finds Richardson’s reliance on Holland unpersuasive and rejects
his argument that an evidentiary hearing was required.
Applicability of Edwards v. Carpenter
Richardson also argues that this court misapplied Edwards v. Carpenter, 529 U.S.
446 (2000), in holding that he did not have cause for his procedurally defaulted habeas
claims.2 Specifically, Richardson argues that the rule in Edwards, in combination with
Richardson appears to believe that his petition, too, was dismissed as untimely. See
Docket No. 43 at 3. This is incorrect; as recounted above, the vast majority of his claims were
dismissed as procedurally defaulted because they were not exhausted in the state courts. None
were dismissed as untimely. See Docket No. 33.
Respondents assert that this claim is not one for which the court may grant a remedy
pursuant to Rule 60(b). See Docket No. 46. However, as noted above, Rule 60(b)(6) allows for
the court to relieve a party from a final judgment “for any other reason that justifies relief,” and
such motions are left to the court’s discretion to address. See Boughner, 572 F.2d at 977.
Pennsylvania state court procedure concerning ineffective-counsel claims, creates a
situation in which a petitioner is not guaranteed effective counsel when claiming the
ineffectiveness of previous counsel. This is because, Richardson argues, a petitioner in
Pennsylvania state courts generally cannot raise an ineffective-assistance-of-counsel
claim on direct appeal—when there is a constitutionally guaranteed right to effective
counsel—but only on collateral attack, when there is no right to effective assistance of
counsel. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Thus, if a
petitioner’s pretrial or trial counsel is ineffective, the petitioner must rely on his PCRA
counsel to raise that claim, and because there is no constitutional right to effective PCRA
counsel,3 a petitioner may have no recourse if his PCRA counsel is ineffective and does
not raise the claim. But this procedural aspect of Pennsylvania law has no bearing on the
applicability of Edwards to this case. Edwards bars a habeas court from considering an
ineffective-assistance-of counsel claim as cause for the procedural default of another
claim when the ineffective-assistance claim itself has been procedurally defaulted.
Edwards, 529 U.S. at 453. In addition, and what is especially relevant to the potential
conundrum Richardson presents, Edwards holds that the procedural default of the
ineffective-counsel claim asserted as cause can itself be excused if the petitioner can show
cause with respect to that claim. Id. However, as stated above, Richardson has failed to
make sufficient allegations that would show cause sufficient to excuse the procedural
See Coleman v. Thompson, 501 U.S. 722, 752 (1991).
default of any of his ineffective-counsel claims. Accordingly, this court’s reliance on
Edwards was proper, and Richardson’s motion will be denied.
AND NOW, this 19th day of July, 2011, upon consideration of Richardson’s
Petition for Relief from Judgment (Docket No. 43), and for the reasons outlined in the
above memorandum, it is hereby ORDERED the petition is DENIED.
BY THE COURT:
/s/ Louis H. Pollak
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