MURRAY v. DIGUGLIELMO et al

Filing 51

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 6/27/16. 6/27/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
:
:
:
:
:
:
:
:
:

CLIFFORD MURRAY,
Petitioner,
v.
DAVID DIGUGLIELMO et al.,
Respondents.
Jones II,

J.

CIVIL ACTION
NO. 09-4960

June 27, 2016
MEMORANDUM

Pending before the Court is Petitioner’s Motion to Alter or Amend Judgment pursuant to
Federal Rule of Civil Procedure 60(b). (Dkt No. 50 [60(b) Pet.].) For the reasons set forth below,
it is hereby ORDERED that said Motion is DENIED.
I.

Background

On November 15, 1983, Petitioner was convicted of first-degree murder, criminal
conspiracy, and possessing an instrument of crime, related to the shooting death of Joseph Lewis
Porter in Philadelphia on January 28, 1981. Com. v. Murray, 3236 EDA 2009, slip op. at 1-2 (Pa.
Super. Ct. Nov. 3, 2011). Petitioner was sentenced to a term of life imprisonment for the murder
charge and a concurrent term of five to ten years for the conspiracy and possession charges. Id. at
2. In 2003, Petitioner’s appellate rights were reinstated and Petitioner pursued a direct appeal and
an appeal under the Pennsylvania Post-Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-46
(“PCRA”).
On October 24, 2009, Petitioner filed a habeas petition. (Dkt No. 1 [hereinafter 2254
Pet.].) The matter was referred to the Honorable Carol Sandra Moore Wells, United States
Magistrate Judge, for a report and recommendation (“R&R”). (Dkt No. 3.) The Magistrate Court

1

stayed the petition pending Petitioner’s ongoing PCRA action. (Dkt No. 10.) Upon the
conclusion of the PCRA action, the Magistrate Court removed the case from suspense and
ordered the Government to respond to Petitioner’s federal habeas petition. (Dkt No. 13.)
Following briefing by all parties, Magistrate Judge Moore recommended that all claims
be dismissed without an evidentiary hearing. (Dkt No. 33 [hereinafter R&R].) Petitioner objected
to Magistrate Judge Moore’s R&R. (Dkt No. 36 [hereinafter Objs.].) On April 29, 2013, this
Court overruled Petitioner’s objections and adopted the R&R. (Dkt No. 38 [Order].)
Petitioner timely appealed the Court’s ruling to the Third Circuit. (Dkt No. 40.) On
October 24, 2014, the Third Circuit affirmed. (Dkt No. 46.) Petitioner appealed to the Supreme
Court of the United States. On April 20, 2015, the Supreme Court denied Petitioner’s writ. Now,
pending before the Court is Petitioner’s motion to grant Petitioner relief from the Court’s April
29, 2013 motion pursuant to Federal Rule of Civil Procedure 60(b). Petitioner is moving for
relief relating to the Court’s dismissal of Claims Eight through Twelve of Petitioner’s Petition.
II.

Standard of Review

Petitioner seeks relief under Federal Rule of Civil Procedure 60(b)(6). Pursuant to Rule
60(b)(6), “[o]n motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for...any other reason that justifies relief.” Fed. R.
Civ. P. 60(b)(6). Rule 60(b)(6) serves as the “catchall provision.” Coltec Industries, Inc. v.
Hobgood, 280 F.3d 262, 273 (3d Cir. 2002). “[T]he Rule 60(b)(6) ground for relief from
judgment provides for extraordinary relief and may only be invoked upon a showing of
exceptional circumstances.” Id. (quoting In re Fine Paper Antitrust Litig., 840 F.2d 188 (3d Cir.
1988)). A Rule 60(b)(6) motion must be made within a “reasonable time after the entry of the
judgment or order of the date of the proceeding.” Fed. R. Civ. P. 60(c).

2

III.

Discussion
a. This Motion is not a successive petition.

Under the Anti-Terrorism and Effective Death Penalty Act, in the Eastern District of
Pennsylvania, petitioners seeking to present a second or successive 2254 habeas petition in
district court must first file for authorization with the Court of Appeals for the Third Circuit. 28
U.S.C. § 2244(b)(3)(A). To determine whether the motion is properly considered a second or
successive habeas petition, the Court should consider whether:
The factual predicate of a petitioner’s Rule 60(b) motion attacks the manner in which the
earlier habeas judgment was procured and not the underlying conviction[; if so, then] the
Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b)
motion seeks to collaterally attack the petitioner’s underlying conviction, the motion
should be treated as a successive habeas petition.
Pridgen v. Shannon, 380 F.3d 721, 727 (2004). Because Petitioner has already filed, and had
denied, a habeas petition, before reaching the merits of Petitioner’s Rule 60(b)(6) Motion, the
Court must determine whether Petitioner’s Motion is a successive habeas petition.
In his 2254 Petition, Petitioner raised numerous grounds for relief alleging that Trial
Counsel, Appellate Counsel, and the Trial Court had violated Petitioner’s constitutional rights.
(2254 Pet. at 9(b)-9(c).) The Magistrate Court held that all the claims were either procedurally
defaulted or meritless and not warranting an evidentiary hearing. (R&R.) Of note for this
Motion, the Magistrate Court held that Claim Eight (Trial and Appellate Counsel were
ineffective for failing to preserve a challenge to race discrimination during jury selection), Claim
Nine (Trial Court erred in denying Petitioner’s suppression motion), Claims Ten through Twelve
(Trial Court erred by allowing Petitioner’s mug shot to be shown to Edwin Hernandez, Tyrone
Poland’s prior police statement to be introduced into evidence, and Edwin Hernandez to be
questioned about his prior testimony at Petitioner’s preliminary hearing), were procedurally

3

defaulted. (R&R at 6-8.) In his objections, Petitioner stated that he “raise[d] a salutary objection
to the Report’s conclusions regarding claims two through twelve.” (Objs. at 7.) Petitioner
provided no argument to support these objections. The Court overruled these objections, citing
Cherry v. Wynder, 2007 WL 983826, at *7-9 (E.D. Pa. 2007), and stating that “objections that do
not respond to magistrate judge’s recommendation on claim, but instead repeat assertions raised
in petition are properly overruled.” (Order at 2 n. 1.)
Petitioner now brings a Rule 60(b) Motion to challenge the Court’s Order overruling
Petitioner’s salutary objection to the R&R’s finding that Claims Eight through Twelve were
procedurally defaulted.(60(b) Pet. at 6.)
Petitioner argues that his motion is a “‘true’ Rule 60(b) motion as it is not a direct attack
on the state conviction, but rather, an attack on the manner in which the previously filed Habeas
Petition was decided.” (60(b) Pet. at 5.) The Court agrees. Petitioner’s Motion is not a second or
successive petition. Thus, the Court can address the Motion.
b. Petitioner’s Motion was made in a reasonable time.
A motion under Rule 60(b) “must be made within a reasonable time.” Fed. R. Civ. P.
60(c). Petitioner argues that the motion is timely filed because he filed it within a year of the
Supreme Court of the United States’ denial of a writ of certiorari of his appeal of the April 29,
2013 motion. Petitioner is mistaken about when the clock starts ticking. The one-year countdown
begins from the date of the “entry of the judgment.” In this case, that entry was April 29, 2013.
The period of reasonableness is not tolled by an appeal. Moolenaar v. Gov’t of Virgin Islands,
822 F.2d 1342, 1346 n. 5 (3d Cir. 1987). As such, this Motion is filed almost three years after the
“entry of judgment.” Such a period of delay renders this motion untimely.

4

However, the Court finds that the delay was nonetheless reasonable. Petitioner has clearly
stated the reason for the three year delay: his mistaken assumption that an appeal tolled the time.
While incorrect legally, that is understandable, logically. Given Petitioner’s pro se status, the
Court defers to his logic. The Court will reach the merits of Petitioner’s Motion.
c. Martinez cannot justify Petitioner’s request for 60(b)(6) relief.
i. Martinez is not an intervening change of law.
Petitioner moves the Court for relief from the Court’s dismissal of Claims Eight through
Twelve. Petitioner alleges that 60(b)(6) relief is appropriate because of the extraordinary
circumstances of an intervening change in law: namely, Martinez v. v. Ryan, 132 S.Ct. 1309
(2012). (60(b) Mot. at 8.) Martinez is not an intervening change of law. The Court rewinds the
clock: Martinez was decided prior to the Court’s Order affirming the R&R, prior to Petitioner’s
Objections, prior to the R&R, prior to Petitioner’s Reply in Support of his Petition, and prior to
the Government’s Response in opposition to Petitioner’s Petition. Martinez was decided on
March 20, 2012. The R&R was published on January 3, 2013, almost a full year after Martinez.
(R&R.)
However, pressing pause on our rewind, the Court notes that Petitioner first filed his
Petition in October 29, 2009, before Martinez. (Dkt No. 1.) Having gone to the beginning of the
story, we now replay the events in chronological order. Because the Magistrate Court stayed the
Petition pending the conclusion of his PCRA Petition, and the Magistrate Court approved
multiple extensions, the Government only responded to the Petition on January 7, 2013, after
Martinez. (Dkt No. 30.) In the Government’s Response to Petitioner’s Petition, the Government
explicitly referenced Martinez in its arguments that various claims of Petitioner’s were
procedurally defaulted. (Dkt No. 30 at 24-26.)

5

Most importantly, in his Reply, Petitioner, himself, directly addressed the Government’s
citation to Martinez. Petitioner wrote:
Respondent raises the recent Supreme Court case decision at Martinez v. Ryan, 132 S.Ct.
1309 (2012) and several cases derived from other Circuit Courts which validates
complexity and a need for further development.
(Rep. at 2.)
The R&R expressly cited Martinez in support of its reasoning for finding Petitioner’s
claims procedurally defaulted. In finding Claim Eight procedurally defaulted, the R&R stated:
Petitioner does not allege that PCRA counsel was ineffective for failing to pursue this
claim in his initial PCRA petition. See Martinez v. Ryan, 132 S.Ct. 1309, 1318 (2012)
(holding that, in a state like Pennsylvania, which requires that claims of trial counsel
ineffective assistance be deferred to PCRA proceedings, the ineffective assistance of
PCRA counsel may constitute cause for the default of a claim that trial counsel was
ineffective). Since it is Petitioner’s burden to demonstrate cause, this court declines to
consider whether PCRA counsel was ineffective in this regard.
(R&R at 6 n. 7.) In finding Claims Nine through Twelve procedurally defaulted, the Magistrate
Court held that Martinez cannot be applied to Petitioner’s claims against the Trial Court:
Martinez does not apply to this procedural default, because the defaulted claim does not
involve ineffective assistance of trial counsel. See 132 S.Ct. at 1318.
(R&R at 7 n. 10; see also R&R at 8 n. 12.) Petitioner failed to provide any argument regarding
Martinez in his objections.
In conclusion, the Court first provides a correction: Martinez was not an intervening
change in law. Petitioner had the opportunity to request to amend his Petition, to argue Martinez
arguments in his Reply in Support of his Petition, and in his Objections to the R&R.
ii. Even if Martinez was an intervening change of law, it categorically
does not apply to Claims Nine through Twelve.
In Martinez, 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, a procedural
default will not bar a federal habeas court from hearing a substantial claim of ineffective

6

assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel
was ineffective.” Id. at 1320.
Petitioner’s Claims Nine through Twelve all concern claims against the Trial Court.
These claims do not involve ineffective assistance of counsel. Martinez does not apply. See, e.g.,
Thompkins v. Wingard, 2015 WL 6082134, at *5 n. 10, *6 n. 12 (holding that Martinez could not
constitute cause for default of a claim regarding trial court error); see also Stroll v. Johnson,
2013 WL 6074160,at *1 (3d Cir. 2013) (non-precedential) (holding that Martinez does not apply
to a defaulted claim of judicial error); Corbin v. Mooney, 2016 WL 627753, at *6 (M.D. Pa.
2016) (same, citing Stroll); Saunders v. Asure, 2015 WL 7776627, at *7 (M.D. Pa. 2015) (same,
citing Stroll);. Thus, the Court need not conduct a Martinez analysis around these claims.
iii. Even assuming that Martinez is an intervening change in law, the Cox
factors also weigh against treating Martinez as an “extraordinary
circumstance” justifying 60(b)(6) relief for Claim Eight.
Even if Martinez was an intervening change in law, the Third Circuit has consistently
held that “intervening changes in law rarely justify relief from judgments under 60(b)(6). Cox. v.
Horn, 757 F.3d 113, 121 (3d Cir. 2014). To determine whether Martinez contemplates an
“extraordinary circumstance” justifying Rule 60(b)(6) relief, the Court considers the following
factors: (1) Whether the 60(b)(6) motion was brought within a reasonable time of the Martinez
decision; (2) the merits of a Petitioner’s underlying ineffective assistance of counsel claim which
can affect whether the relief based on Martinez is warranted; (3) whether the conviction and
initial federal habeas proceeding were only recently completed or ended years ago; and (4)
Petitioner’s diligence in pursuing review of his ineffective assistance of counsel claim.
Cox, 757 F.3d at 115-16, 124-26.

7

First, while this Motion was brought within a reasonable period of time for a 60(b)(6)
motion, it was not brought within a reasonable time of Martinez. Martinez was decided roughly
four years prior to Petitioner’s 60(b) Motion. Moreover, Martinez was decided before the Order
in contention was ever published. This factor certainly weighs against finding that Martinez
constitutes an “extraordinary circumstance.”
Second, the application of Martinez to this claim would not create cause for the default of
this claim. The failure of PCRA Counsel to raise an ineffective assistance of trial counsel claim
in an initial-review collateral proceeding can constitute cause if (1) PCRA Counsel’s failure
constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 688,
694 (1984), and (2) the underlying ineffective assistance of trial counsel claim is “substantial”
and “has some merit.” Martinez, 132 S.Ct. at 1319; see also Glenn v. Wynder, 743 F.3d 402,
409-10 (3d Cir. 2014). In this claim, the “failure” at issue is PCRA Counsel’s alleged failure to
preserve a challenge that Trial and Appellate Counsel were constitutionally ineffective for failing
to preserve, to wit, a challenge to the prosecutor’s alleged use of racial discrimination during jury
selection. (Pet. at 9(c).) 1
For his PCRA Petition, Petitioner was represented by counsel, Barnaby Wittels, Esq. and
Carole L. McHugh, Esq. (collectively “PCRA Counsel”). (Pet’r’s PCRA Pet., Dkt No. 30-4 at 1.)
In his initial PCRA Petition, PCRA Counsel alleged this claim. (Pet’r’s PCRA Pet. at 13-18.)
After the Government filed its Motion to Dismiss Petitioner’s PCRA Petition, PCRA Counsel

1

The R&R recommended that the claim be dismissed as procedurally defaulted because it was
not raised on direct appeal or during the PCRA appeal. (R&R at 6.) Further, the R&R suggested
that “Petitioner does not allege that PCRA counsel was ineffective for failing to pursue this claim
in his initial PCRA petition.” (R&R at 6 n. 8.) Petitioner’s failure to include this argument in his
Petition is, of course, not surprising. Martinez had not been decided at the time Petitioner first
filed his Petition. Petitioner should not be penalized for failing to make an argument that was not
available to him at the time of his Petition. Our courts do not require parties to be fortune tellers.
8

filed a Response. In this Response, PCRA Counsel “withdr[ew] his ineffectiveness claim based
on racially discriminatory jury selection.” (Pet’r’s Mem. in Opp. to Com.’s MTD, Dkt No. 30-9
at 13.) This was the only claim that PCRA Counsel withdrew. This claim was not renewed and
was not raised on appeal to the Superior Court by Petitioner’s new counsel, Elayne C. Bryne,
Esq. (Pet’r’s PCRA App., Dkt No. 30-7.)
To determine whether PCRA Counsel was constitutionally ineffective for withdrawing
this claim, thus providing cause for the default, Defendant must show that (1) counsel’s
representations fell below an objective standard of “reasonableness under prevailing professional
norms;” and (2) Defendant suffered prejudice as a result. Strickland, 466 U.S. at 688, 694. In
assessing the effectiveness of PCRA Counsel, the Court is “required to...assume” that PCRA
Counsel “made an informed judgment call that was counsel’s to make” “unless the petitioner has
come forward with evidence to the contrary sufficiently probative to overcome the ‘strong
presumption’ required by Strickland.” Sistrunk v. Vaughn, 96 F.3d 666, 671 (3d Cir. 1996).
“Th[e] process of ‘winnowing out weaker arguments on appeal and focusing on’ those most
likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745,
751-52 (1983)); see also Tok v. Glunt, 2016 WL 721280, at *5 (E.D. Pa. 2016) (“PCRA counsel,
acting as an appellate attorney, was entitled to select those issues on collateral review that he
thought most likely to succeed on behalf of his client.”). Thus, the Court must presume that
PCRA Counsel withdrew this claim “for tactical reasons rather than through sheer neglect.”
Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
Petitioner has failed to provide any evidence to overcome this presumption. The record
shows that after the Commonwealth’s Motion to Dismiss, Petitioner’s counsel decided to

9

withdraw only this one claim. In the original PCRA Petition, Petitioner provided no specifics, no
factual averments, and no evidence to support this claim. Petitioner’s counsel stated that this
claim was based on “Petitioner’s recollection.” (Pet’r’s PCRA Pet. at 14.) The Court presumes
the record to show that after the Commonwealth’s Motion to Dismiss, PCRA Counsel made a
tactical decision that this claim, based only on “Petitioner’s recollection,” was weak and not
worth pursuing. Neither Petitioner’s initial federal habeas petition, nor the pending Rule 60(b)(6)
Motion provide any facts, specific allegations, or evidence to overcome this presumption. Thus,
the Court finds that PCRA Counsel was not constitutionally deficient for withdrawing this claim.
Second, Petitioner has failed to demonstrate that the underlying ineffective assistance of counsel
claim is “substantial” or has “some merit” as he continues to provide no factual support for his
claim that the prosecutor’s actions during jury selection were racially biased.
In conclusion, because PCRA Counsel was not deficient, Martinez does not provide
cause for the procedural default of this claim. This second factor weighs against treating
Martinez as an “extraordinary circumstance” justifying Rule 60(b)(6) relief.
Third, Petitioner was convicted in 1983 and the initial habeas proceeding was completed
in 2013. This factor weighs heavily against reconsideration. Fourth, Petitioner has been diligent
in pursuing his ineffective assistance of counsel claim. This factor weighs in favor of
reconsideration.
Considered all together, the Court finds that Martinez does not create an “extraordinary
circumstance” justifying Rule 60(b)(6) relief.
d. Petitioner’s claim of “actual innocence” cannot constitute an “extraordinary
circumstance.”
Petitioner alleges that Rule 60(b)(6) relief is appropriate because Claims Eight through
Twelve should not have been considered procedurally defaulted due to his “actual innocence.”
10

Petitioner cites to Schulp v. Delo, 513 U.S. 298 (1995). Schlup is certainly not an intervening
change of law. But, even if the Court were to consider Petitioner’s arguments under Schlup,
Petitioner has totally failed to demonstrate that he deserves relief under its holding. Petitioner has
presented no new reliable evidence. See, e.g., Schlup, 513 U.S. at 324. Petitioner has made no
showing that due to such, non-existent, new reliable evidence, it is more likely than not that no
reasonable jury would have convicted him. Id. at 327. Petitioner’s repeated recitation of his
“actual innocence,” without any “exculpatory scientific evidence, trustworthy eyewitness
accounts, or crucial physical evidence...that was not presented at trial,” does not merit
reconsideration. Id. at 324.
IV.

Conclusion

Petitioner has presented a timely Rule 60(b) Petition that the Court considers on its
merits. Having so considered, the Court finds that Martinez is not an intervening change in law
justifying an “extraordinary circumstance” to overrule the Court’s 2013 order. Further, Martinez
is wholly inapplicable to four of the five claims that Petitioner seeks the Court to revisit. As to
the one claim that Martinez could apply, the Cox factors weigh against applying Martinez as an
“extraordinary circumstance.” Finally, Petitioner’s assertion of “actual innocence” does not
constitute an “extraordinary circumstance” justifying Rule 60(b) relief. Therefore, Petitioner’s
Motion is DENIED.
BY THE COURT:

/s/ C. Darnell Jones, II
_____________________________
C. Darnell Jones, II

11

J.