FURMAN v. SAUERS et al
MEMORANDUM SIGNED BY HONORABLE JAN E. DUBOIS ON 6/4/21. 6/4/21 ENTERED AND COPIES E-MAILED. PRO SE PETITIONER NOT MAILED. (va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DEBRA K. SAUERS, THE DISTRICT
ATTORNEY OF THE COUNTY OF
PHILADELPHIA, and THE ATTORNEY
GENERAL OF THE STATE OF
June 4, 2021
Pro se petitioner, Cerrone Furman, is serving a life sentence in Pennsylvania state prison.
Presently before the Court is pro se petitioner’s Application for Relief Seeking Equitable Relief
Pursuant to F. R. Civ. P. 60(b)(6)[&](7) (“Rule 60(b) Motion”), in which he seeks relief from the
Order of the Court dated August 28, 2013, dismissing and denying his 28 U.S.C. § 2254 petition.
He argues relief is warranted based on McCoy v. Louisiana, 138 S. Ct. 1500 (2018). For the
reasons that follow, the Motion is denied.
On April 27, 2005, following a jury trial in Pennsylvania state court, Furman was
convicted of second-degree murder, robbery, possessing instruments of crime, and conspiracy.
On June 17, 2005, he was sentenced to, inter alia, life imprisonment. Furman, through counsel,
filed a timely appeal. The Superior Court affirmed the judgment of sentence, and the
The facts of this case are set forth at length in United States Magistrate Judge Elizabeth T. Hey’s Report and
Recommendation dated July 30, 2013. They are recited in this Memorandum only as necessary to address pro se
petitioner’s Rule 60(b) Motion.
Pennsylvania Supreme Court denied his petition for allowance of appeal.
On June 15, 2007, Furman filed a pro se petition pursuant to Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9551. He subsequently retained
counsel and filed an amended petition. The PCRA Court “determined that [Furman] had not
stated a claim which entitled him to PCRA relief” and issued “a notice pursuant to Pa. R. Crim.
P. 907 indicating that, after twenty days, the petition would be dismissed without further
proceedings.” Commonwealth v. Furman, No. CP-51-CR-0402822-2001, slip op. at 3 (Phila.
C.C.P. Dec. 10, 2009). Furman “filed a pro se answer to the notice claiming that his petition
should not be dismissed” because, inter alia, “his trial counsel was ineffective for allegedly
making negative comments about him during his closing.” Id. On December 12, 2008, “after
consideration of appellant’s answer to the 907 notice, appellant’s petition for PCRA relief was
formally dismissed.” Id. at 3-4; see also Commonwealth v. Furman, No. CP-51-CR-04028222001, Order (Phila. C.C.P. Dec. 12, 2008).
Furman did not timely appeal the decision of the PCRA court. After the time to appeal
expired, he filed a Motion for Leave to File a Notice of Appeal Nunc Pro Tunc, which the PCRA
court granted on February 13, 2009. See Commonwealth v. Furman, No. CP-51-CR0402822-2001, Order (Phila. C.C.P. Feb. 13, 2009). In his counseled appeal, Furman claimed,
inter alia, that the PCRA court erred in refusing to grant the petition based on his allegations of
ineffective assistance of counsel. See Commonwealth v. Furman, No. 587 EDA 2009, slip op.
at 6 (Pa. Super. July 7, 2010).
On July 7, 2010, the Superior Court vacated the PCRA court’s order reinstating Furman’s
right to appeal and affirmed the denial of PCRA relief. Id. The Superior Court concluded that
the PCRA court lacked jurisdiction to reinstate Furman’s appellate rights because he had “neither
pled nor proved any exceptions to the PCRA timebar.” Id. at 12. Therefore, the Superior Court
ruled that Furman’s Motion for Leave to Appeal was a second PCRA petition, not an appeal of
his first petition, and dismissed it as untimely. Id. at 12-13. The Pennsylvania Supreme Court
denied Furman’s petition for allowance of appeal. Commonwealth v. Furman, 550 EAL 2010
(Pa. Apr. 26, 2011).
Furman filed a petition pursuant to 28 U.S.C. § 2254 in this Court on June 27, 2011, and
a supplement to the petition on October 13, 2011. He claimed, inter alia, that (1) his trial
counsel was ineffective because counsel presented a guilt-based defense and made negative
statements implicating Furman in the crimes; and (2) his PCRA counsel was ineffective for
failing to challenge trial counsel’s concessions and failing to file a timely notice of appeal.
In a Report and Recommendation dated July 20, 2013 (the “R & R”), United States
Magistrate Judge Elizabeth T. Hey concluded, “Furman’s allegations that his trial counsel was
ineffective for presenting a guilt-based defense and making negative statements implicating
Furman are procedurally defaulted” because the PCRA appellate court rejected his claims based
on independent and adequate state procedural rules. R & R, 13. Judge Hey interpreted
Furman’s claim that his appellate PCRA counsel was ineffective for failing to timely appeal the
denial of PCRA relief as an attempt to show cause for the default. Id. at 14. Continuing, Judge
Hey stated that because ineffectiveness of counsel can only constitute cause to excuse procedural
default when the ineffectiveness is of a constitutional magnitude, and a defendant does not have
a constitutional right to counsel on PCRA review, the ineffectiveness claimed by Furman, even if
proven, could not constitute cause for the procedural default. Id. at 14-15. Judge Hey also
explained in her R & R that, under Martinez v. Ryan, 132 S. Ct. 1309 (2012), ineffectiveness of
state collateral review counsel can constitute cause only when counsel’s ineffectiveness in failing
to present an ineffective assistance of trial counsel argument at an initial post-conviction
proceeding causes a procedural default of that argument. Id. at 15 n.14. Because Furman
presented his arguments to the PCRA court and the procedural default occurred on his PCRA
appeal, Judge Hey concluded the Martinez exception did not apply. Id.
This Court approved and adopted the R & R on August 28, 2013. The Third Circuit
denied Furman’s request for a certificate of appealability on December 16, 2013. Document
No. 47 at 1.
Pro se petitioner filed the pending Rule 60(b) Motion on July 20, 2018.2 In the Motion,
he seeks relief based on McCoy v. Louisiana, which ruled that the Sixth Amendment gives
criminal defendants the right to “to insist that counsel refrain from admitting guilt” before the
jury. 138 S. Ct. 1500, 1505 (2018). Pro se petitioner alleges that his trial counsel was
ineffective under McCoy on the ground that he “expressly told” his attorney that “his prerogative
was to put on a defense of innocence,” but his trial attorney “went on to implicate this defendant
in [his] closing [argument].” Rule 60(b) Mot., 4. He further argues that (1) to the extent the
claim was denied on PCRA review, his PCRA counsel was ineffective, and (2) to the extent the
claim was dismissed as untimely on his PCRA appeal, his PCRA appellate counsel was
ineffective for failing to timely appeal the denial of his PCRA petition. Id. at 3.
The Government responded to pro se petitioner’s Rule 60(b) Motion on February 12,
In the Motion, pro se petitioner states that he seeks relief pursuant to Fed. R. Civ. P. 60(b)(6) and (7). There is no
Rule 60(b)(7). The Court reads pro se petitioner’s Motion liberally but concludes that he raises only an ineffective
assistance of counsel argument which does not fall under the circumstances outlined in Rule 60(b)(1)-(5). As such,
the Court analyzes the arguments in his Motion under Rule 60(b)(6).
2021. Pro se petitioner filed a Reply on May 3, 2021, stating that he also seeks relief pursuant
to Federal Rules of Civil Procedure 60(b)(3) and (d)(3). The Motion is thus ripe for decision.
Federal Rule of Civil Procedure 60(b) allows a court to grant a party relief from a final
judgment in specified circumstances. Rule 60(b)(6), the catch-all provision, permits a party to
seek relief “when the movant shows ‘any. . . reason justifying relief from the operation of the
judgment’ other than the more specific circumstances set out in Rules 60(b)(1)-(5).” Gonzalez v.
Crosby, 545 U.S. 524, 528-29 (citations omitted). However, “courts are to dispense their broad
powers under 60(b)(6) only in ‘extraordinary circumstances where, without such relief, an
extreme and unexpected hardship would occur.’” Cox v. Horn, 757 F. 3d 113, 120 (3d Cir.
2014) (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)). Such
extraordinary circumstances “rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535.
Moreover, “[i]ntervening developments in the law by themselves rarely constitute the
extraordinary circumstances required for relief under Rule 60(b)(6).” Agostini v. Felton, 521
U.S. 203, 239 (1997). A motion brought pursuant to Rule 60(b)(6) must be filed “within a
reasonable time.” Fed. R. Civ. P. 60(c)(1).
A. New Arguments Raised in Reply
As a preliminary matter, the Court notes that pro se petitioner raised two new arguments
in his Reply: that he is entitled to relief under Rule 60(b)(3) and under Rule 60(d)(3). The Court
need not consider these arguments on the ground that the “moving party may not raise new
issues . . . in a reply brief that it should have raised in its initial brief.” D'Alessandro v. Bugler
Tobacco Co., No. 05-5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007). Nevertheless, the
Court considers the arguments raised by pro se petitioner in his Reply under rules 60(b)(3) and
A motion pursuant to Rule 60(b)(3), which allows relief from judgment based on fraud,
misrepresentation, or misconduct by an opposing party, must be brought “no more than a year
after the entry of the judgment or order.” Fed. R. Civ. P. 60(c)(1). Pro se petitioner seeks
relief from the entry of judgment dated August 28, 2013, and he filed the Rule 60(b) Motion on
July 20, 2018, almost five years later. Accordingly, pro se petitioner’s Rule 60(b)(3) argument,
even if raised in his Rule 60(b) Motion, is untimely.
Rule 60(d)(3) states, “This rule does not limit a court’s power to . . . set aside a judgment
for fraud on the court.” Fed. R. Civ. P. 60(d)(3). This provision is not an independent basis for
relief; rather, it states that Rule 60 does not affect a court’s power to set aside a judgment under
other rules related to fraud on the court. Accordingly, pro se petitioner’s Rule 60(d)(3)
argument, even if raised in his Motion, provides no grounds for relief.
B. Timeliness Under Rule 60(b)(6)
Pro se petitioner argues the Rule 60(b) Motion is based on McCoy v. Louisiana, which
was decided on May 14, 2018. He filed the Motion on July 20, 2018, less than three months
after the McCoy decision. In response, the Government argues the Motion is untimely because
it was filed almost five years after the entry of the judgment on pro se petitioner’s habeas
petition on August 28, 2013. Gov’t’s Resp. 3.
“A motion under Rule 60(b)(6) filed more than a year after final judgment is generally
untimely unless ‘extraordinary circumstances’ excuse a party's failure to proceed sooner.” Taylor
v. Wetzel, No. 04-553, 2014 WL 5242076, at *6 (M.D. Pa. Oct. 15, 2014) (quoting Gordon v.
Monoson, 239 Fed. App'x 710, 713 (3d Cir. 2007)).
Pro se petitioner’s Rule 60(b) Motion is based on McCoy v. Louisiana, which was
decided on May 14, 2018. He filed the Motion within three months of that decision. The Court
thus concludes that the Motion was timely filed.
C. Ineffective Assistance of Counsel Argument
Pro se petitioner claims his trial counsel was ineffective under McCoy on the grounds
that he presented a guilt-based defense and made comments in his closing argument that
implicated him in the crimes, over his objections. Rule 60(b) Mot., 4. In the Motion, he argues
that (1) his PCRA counsel provided ineffective assistance in raising this claim, and (2) his PCRA
appellate counsel was ineffective for failing to timely appeal the denial of his PCRA petition.
Id. at 2-4. In response, the Government states pro se petitioner is not entitled to relief on the
grounds that (1) his claim is procedurally defaulted because he failed to appeal the denial of his
PCRA petition, and McCoy does not excuse the default; and (2) McCoy does not present
extraordinary circumstances justifying relief. In his Reply, pro se petitioner argues that “the
‘default’ did in fact occur at the first initial-stage of the PCRA process” because his PCRA
counsel did not pursue his McCoy claim before the PCRA court. Reply, 2.
1. Applicable Law
A federal writ of habeas corpus may not be granted to a person incarcerated pursuant to a
state court judgment unless he or she has first exhausted the remedies available in state court.
28 U.S.C. § 2254(b)(1). Thus, “[w]hen a state-law default prevents the state court from
reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court”
because it is procedurally defaulted. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). “In all
cases in which a state prisoner has defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
“A state rule provides an independent and adequate basis for precluding federal review of
a claim if the rule speaks in unmistakable terms, all state appellate courts refused to review the
petitioner’s claims on the merits, and the state courts’ refusal was consistent with other decisions,
that is, the procedural rule was consistently and regularly applied.” Albrecht v. Horn, 485 F.3d
103, 115 (3d Cir. 2007) (internal alterations and quotation marks omitted) (quoting Doctor v.
Walters, 96 F.3d 675, 683–84 (3d Cir. 1996)). See generally James S. Liebman & Randy Hertz,
Federal Habeas Corpus Practice and Procedure § 26.1 (7th ed. 2016) (discussing the criteria used
to determine whether a state procedural rule constitutes an independent and adequate state
ground). Such a rule is independent “when resolution of the state procedural law question [does
not] depend[ ] on a federal constitutional ruling.” Ake v. Oklahoma, 470 U.S. 68, 75 (1985).
A state procedural rule will not bar federal review of a habeas claim unless that rule was
firmly established and regularly followed at the time the default occurred. Ford v. Georgia, 498
U.S. 411, 424 (1991). “As such, in determining whether a particular state rule is independent
and adequate, the Court must identify the state procedural rule, ascertain the time at which the
alleged default occurred and then decide whether the rule was firmly established and regularly
and consistently applied at the time the alleged default occurred.” Laird v. Horn, 159 F. Supp.
2d 58, 74 (E.D. Pa. 2001).
Although procedurally defaulted claims are barred as a general rule, a federal court may
reach such claims upon a showing of cause and prejudice or a fundamental miscarriage of
justice. Id. at 70; see also Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000) (“[C]laims
deemed exhausted because of a state procedural bar are procedurally defaulted, and federal
courts may not consider their merits unless the petitioner establishes cause and prejudice or a
fundamental miscarriage of justice to excuse the default.”) (internal quotation marks omitted)
(citing Coleman, 501 U.S. at 731).
To establish “cause” for procedural default, “the petitioner must ‘show that some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.’” Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)), cert. denied, 532 U.S. 980 (2001). Under Martinez v. Ryan,
a petitioner can establish cause where ineffective assistance of initial state collateral review
counsel prevented the state collateral review court from hearing a claim of ineffective assistance
of trial counsel, causing the procedural default. 132 S. Ct. at 1315.
To show “prejudice,” the petitioner must prove “not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456
U.S. 152, 170 (emphasis in original). “This standard essentially requires the petitioner to show
he was denied ‘fundamental fairness’ at trial.” Werts, 228 F.3d at 193.
Finally, “[t]o show a fundamental miscarriage of justice, a petitioner must demonstrate
that he is actually innocent of the crime, by presenting new evidence of innocence.” Keller v.
Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001) (internal citation omitted) (citing Schlup v. Delo,
513 U.S. 298, 316 (1995), McCleskey v. Zant, 499 U.S. 467, 494 (1991)).
2. Pro Se Petitioner’s Argument
In his § 2254 Petition, Furman claimed his trial counsel was ineffective for presenting a
guilt-based defense over his objections. This Court dismissed the claims as procedurally
defaulted on the ground that Furman failed to timely appeal the denial of his PCRA claims after
the PCRA court addressed and rejected his ineffective assistance of counsel argument.
R & R, 14. Failure to exhaust state administrative remedies is an independent and adequate
state ground for procedural default. See Paolino v. Glunt, No. 11-cv-5436, 2012 WL 7018081,
at *9-10 (E.D. Pa. Jan. 12, 2012) (concluding that petitioner’s claims were procedurally
defaulted because, although petitioner raised them in his initial PCRA proceedings, he did not
pursue the claims on appeal).
In his Rule 60(b) Motion, pro se petitioner argues that McCoy alters the Court’s analysis
of his ineffectiveness claim and that his procedural default should be excused because his initial
PCRA counsel and appellate PCRA counsel were also ineffective. Rule 60(b) Mot., 3. In
response, the Government argues that McCoy does not apply to pro se petitioner’s claim because
the claim is procedurally defaulted, and Martinez does not excuse the default because the default
did not occur on the initial post-conviction review. Gov’t’s Resp., 4-5.
Although pro se petitioner claims that McCoy changes the Court’s analysis of his claim,
his argument in his Motion is not based on the McCoy decision. Rather, pro se petitioner’s
argument is based on Martinez v. Ryan, which he cites for the proposition that ineffective
assistance of counsel can excuse procedural default on initial PCRA review in limited
circumstances. Id. As a preliminary matter, the Court notes that this argument was raised,
addressed, and rejected in Furman’s initial habeas petition. The Court rejects it again here.
Martinez does not apply to this case. Martinez excuses procedural default only when
ineffective assistance of counsel on initial state collateral review prevents the state court from
hearing a claim of ineffective assistance of trial counsel, causing a procedural default. 132 S.
Ct. at 1315. This equitable exception was created because “if counsel’s errors in an initialreview collateral proceeding do not establish cause to excuse the procedural default in a federal
habeas proceeding, no court will review the prisoner’s claims.” Id. at 1316. In this case, the
PCRA court heard and rejected pro se petitioner’s claim that his trial counsel was ineffective for
conceding his guilt. Commonwealth v. Furman, No. CP-51-CR-0402822-2001, slip op. at 9-10
(Phila. C.C.P. Dec. 10, 2009). Contrary to pro se petitioner’s assertion, the procedural default
occurred when he failed to timely appeal the denial of his PCRA petition. As such, Martinez
does not excuse the procedural default. Because pro se petitioner’s ineffective assistance of
counsel claim is procedurally defaulted and the McCoy decision does not excuse the procedural
default, the Court concludes pro se petitioner has not shown cause excusing the procedural
Because pro se petitioner is unable to show cause for the procedural default, he can
excuse the default only if he shows a fundamental miscarriage of justice—new evidence of
actual innocence. However, pro se petitioner has not presented any evidence that he is actually
innocent of the crimes of conviction, and he does not argue that he is actually innocent.
Accordingly, pro se petitioner has not shown a fundamental miscarriage of justice necessary to
excuse the procedural default. The Court thus concludes that pro se petitioner has not shown
extraordinary circumstances justifying relief under Rule 60(b)(6).3
For the forgoing reasons, pro se petitioner’s Rule 60(b) Motion is denied. A certificate
of appealability will not issue because reasonable jurists would not debate the propriety of this
Court’s procedural ruling with respect to pro se petitioner’s claims. See 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
An appropriate order follows.
Because the Court concludes that pro se petitioner’s claim is procedurally defaulted, and he is, therefore, not
entitled to relief under McCoy, the Court need not consider the Government’s argument that the McCoy decision
cannot present extraordinary circumstances justifying relief under Rule 60(b)(6).
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