O'NEILL v. CLOSE et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 7/29/15. 7/30/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SUPERINTENDENT CLOSE et al.
July 29, 2015
Four years after his petition for a writ of habeas corpus was denied, petitioner
Jason O’Neill filed this motion pursuant to Rule 60(b)(6). He argues that the denial was
due to legal error, specifically, that his habeas petition should have been stayed
pending exhaustion of his state court remedies. Because O’Neill has not provided any
extraordinary circumstances justifying the four-year delay in filing his motion, we shall
deny it as untimely.
After finding O’Neill guilty on three counts of first-degree murder, two counts of
aggravated assault, one count of arson, two counts of reckless endangerment and one
count of criminal mischief in the Court of Common Pleas of Philadelphia County,
Pennsylvania, the jury fixed the murder penalty at life imprisonment. 1 On October 5,
2001, the trial judge formally sentenced O’Neill to two consecutive terms of life
imprisonment, three consecutive terms of ten to twenty years imprisonment, a
consecutive term of three and one-half to seven years imprisonment, and two
Report and Recommendation at 1 (Doc. No. 18).
concurrent terms of one to two years imprisonment.
Pennsylvania Superior Court affirmed the judgment. 3
On February 27, 2004, the
On June 9, 2003, the
Pennsylvania Supreme Court denied O’Neill’s petition for allowance of appeal. 4
On July 22, 2004, O’Neill filed a pro se petition under the Post Conviction Relief
Act, 42 Pa. Cons. Stat. Ann. § 9541 (1988), alleging ineffective assistance of trial
counsel. 5 On October 1, 2006, newly appointed counsel filed an amended petition
raising the same ineffective assistance of trial counsel claim that O’Neill had raised in
his pro se petition. 6 The PCRA court dismissed the petition on June 22, 2007. 7 The
Pennsylvania Superior Court affirmed the dismissal on July 24, 2009.
Pennsylvania Supreme Court denied O’Neill’s petition for allowance of appeal on March
9, 2010. 9
On June 21, 2010, O’Neill filed a second PCRA petition again alleging ineffective
assistance of counsel. 10 In his petition, he presented new claims. 11 He claimed that his
trial counsel failed to: (1) appeal an evidentiary ruling; (2) raise a diminished capacity
Commonwealth v. O’Neill, No. CP-51-CR-0903901-1996, at 4-5 (C.P. Phila. Sept. 17, 1996).
Report and Recommendation at 2.
Id. at 2.
Id. at 2, 9.
Id. at 2, 9. In the amended PCRA, O’Neill claimed that trial counsel failed to object to hearsay
testimony by George Houston and Rebecca Spano concerning statements made to them by Michael
Sheridan. Resp. to Pet. for Writ of Habeas Corpus (“Resp. to Pet.”) Ex. D at 8 (Doc. No. 16-4).
Resp. to Pet. for Writ of Habeas Corpus (“Resp. to Pet.”) at 2 (Doc. No. 16).
Report and Recommendation at 2.
Id. at 2.
Mem. by Def. Ex. A (Mot. for Post Conviction Collateral Relief) at 1 (Doc. No. 17).
defense; (3) challenge a witness’s credibility and motive for testifying falsely; and,
(4) raise the insufficiency of the evidence. 12 On August 19, 2013, the PCRA court
dismissed his second petition as untimely. 13 The Pennsylvania Superior Court affirmed
the dismissal on December 5, 2014. 14
While his second PCRA petition was pending in the state court, O’Neill filed a
habeas corpus petition under 28 U.S.C. § 2254 on August 19, 2010. 15 His habeas
petition asserted four grounds: (1) trial counsel was ineffective because he failed to
object to inadmissible hearsay; (2) the prosecutor engaged in misconduct when he
commented about O’Neill’s burden to call witnesses and accused him of attempting to
intimidate a witness; (3) the trial court erred in denying him the opportunity to crossexamine a witness at a previous hearing; and, (4) allowing the Commonwealth to
introduce inadmissible evidence. 16 On May 4, 2011, O’Neill filed a motion to stay his
pending habeas petition until his second PCRA was decided by the state court. 17
Id. at 1-4. O’Neill claimed that trial counsel failed to appeal the ruling concerning the
inadmissible hearsay testimony of George Houston and Rebecca Spano. Id. at 1. He claimed that
counsel failed to raise a diminished capacity claim regarding the effects drugs and alcohol has on the
ability to form intent. Id. at 2. He also claimed that trial counsel failed to challenge the credibility and
motive of Michael Sheridan’s testimony. Id. at 2-4.
Resp. to Pet’r’s Mot. Ex. A at 2 (Doc. No. 34-1). Exhaustion is not an issue in this case.
Nonetheless, O’Neill states that he has exhausted his state court remedies because he appealed the
dismissal of his second PCRA petition on September 11, 2013. Id. at 2; Pet’r’s Mot for Relief from J.
Pursuant to Fed.R.Civ.P. 60(b)(6) (“Pet’r’s Mot.”) at 3 n.1 (Doc. No. 31).
Resp. to Pet’r’s Mot. Ex. A at 3.
Pet. for Writ of Habeas Corpus (“Pet.”) (Doc. No. 1).
Pet. at 9-10.
Pet’r’s Mot. to Stay (Doc. No. 22). While O’Neill’s motion to stay was never denied, the Court
overruled O’Neill’s objections to the Report and Recommendation, which included an argument for his
motion to stay. Order (Doc. No. 25); Pet’r’s Objections to the Report and Recommendation at 12 (Doc.
Magistrate Judge Rueter recommended the habeas petition be denied. 18 He
concluded that O’Neill’s third claim was procedurally defaulted and his fourth claim was
not cognizable in a federal habeas proceeding.
Adopting the Report and
Recommendation, we denied O’Neill’s habeas corpus petition on May 18, 2011. 20 The
Third Circuit denied a certificate of appealability. 21
Four years later, on May 18, 2015, O’Neill filed his 60(b)(6) motion. 22 He asserts
that we erred in denying his habeas petition “without first granting [his] motion for a stay
and abey to permit [him] to exhaust grounds three (3) and four (4) in State Court.”23 He
asks for review of these claims on the merits. 24 The respondents contend that O’Neill’s
motion must be denied because it is untimely and his claims have already been fully
Report and Recommendation at 1.
Id. at 20, 22.
Order (Doc. No. 25).
USCA Order (Doc. No. 30).
Id. at 2. Ground three asserted that the trial court erred when it did not exclude certain
testimony, which should have been excluded “because [d]efense did not have full and fair opportunity to
cross-examine [the] witness at the previous hearing.” Pet. at 9. While O’Neill does not elaborate on
whose testimony should have been excluded, it appears to be the testimony of Michael Reagan. Report
and Recommendation at 18-19. Ground four asserted that the trial court erred when it allowed the
Commonwealth to introduce inadmissible evidence, “despite Orders prohibiting it from doing so.” Pet. at
9-10. The Report and Recommendation suggests that O’Neill’s claim concerns an Order by the Superior
Court of Pennsylvania precluding the prosecution from presenting evidence involving Ms. Goldberg or Mr.
Davane and witness intimidation. Report and Recommendation at 20-21.
Pet’r’s Mot. at 3.
Resp. to Pet’r’s Mot. at 1, 4.
A Rule 60(b)(6) motion must be filed “within a reasonable time.” 26 Fed. R. Civ. P.
60(c)(1); Moolenaar v. Gov’t of Virgin Islands., 822 F.2d 1342, 1346 (3d Cir. 1987). A
motion filed under Rule 60(b)(6) more than one year after judgment is final is generally
untimely unless the movant demonstrates “exceptional circumstances.”
Ackermann v. United States, 340 U.S. 193, 202 (1950) (finding four-year delay required
petitioner to show extraordinary circumstances); Budget Blinds Inc. v. White, 536 F.3d
244, 255 (3d Cir. 2008). Therefore, when the petitioner files a Rule 60(b)(6) motion
more than one year after the judgment was entered, he bears the “heavy burden” of
demonstrating exceptional circumstances excusing his delay and establishing his
entitlement to relief.
Gordon v. Monoson, 239 F. App’x 710, 713 (3d Cir. 2007);
Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977).
Here, the judgment became final when O’Neill’s habeas petition was denied on
May 18, 2011. He did not file his Rule 60(b)(6) motion until four years later on May 18,
Such a long delay is not reasonable.
Absent a showing of extraordinary
circumstances, O’Neill’s motion is untimely. See Moolenaar, 822 F.2d at 1348 (finding
Rule 60(b) motion brought almost two years after order was issued was untimely);
United States v. 1323 S. 10th St., No. 915848, 1998 WL 470161, at *2 (E.D. Pa. Aug.
11, 1998) (concluding that four-year delay between Order and Rule 60(b)(6) motion was
“A 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.” Fed.
R. Civ. P. 60(b)(c)(1).
“In order to grant relief under Rule 60(b)(6), a party’s failure to act must be excused by an
extraordinary situation—more than mere neglect, inadvertence, indifference, or careless disregard of
circumstances.” Ethan Michael Inc. v. Union Twp., 392 F. App’x 906, 910 (3d Cir. 2010).
O’Neill offers no excuse for his delay. Nor can we discern any. O’Neill has not
presented any extraordinary circumstances that indicate O’Neill is “faultless in the
delay,” permitting him to seek relief after more than one year. Ethan Michael Inc. v.
Union Twp., 392 F. App’x 906, 910 (3d Cir. 2010).
O’Neill argues that we committed legal error when we denied his motion to stay.
Even if this were true, it would not warrant reopening the judgment after four years
because O’Neill has not demonstrated extraordinary circumstances that would justify
relief under Rule 60(b)(6). A Rule 60(b) motion asserting legal error alone does not
constitute an “extraordinary circumstance.” Pridgen v. Shannon, 380 F.3d 721, 728 (3d
Cir. 2004); Martinez-McBean v. Gov’t of Virgin Islands, 562 F.2d 908, 912 (3d Cir.
Staying O’Neill’s habeas petition until the state court ruled on his second PCRA
petition would not have altered the final result. The state court dismissed his claims as
untimely. Thus, even if the federal habeas proceeding had been stayed, the habeas
petition would have been deemed untimely once the state court decided his PCRA
O’Neill has not offered any excuse for the four-year delay in filing his motion. Nor
has he demonstrated “extraordinary circumstances” warranting relief. Therefore, we
shall deny his motion as untimely.
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