MARTIN v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 2/12/18. 2/12/18 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA, et al.,
February 12, 2018
On February 11, 2015, Tyrone Martin filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On June 30, 2017, Magistrate Judge Strawbridge
issued a Report and Recommendation (“R&R”) recommending that the petition be
denied as untimely. (ECF No. 38.) Martin timely filed objections to the R&R on July
10, 2017. (ECF No. 40.) After thoroughly reviewing the record, Magistrate Judge
Strawbridge’s R&R and Martin’s objections, the Court overrules those objections and
adopts the R&R.
Martin was convicted by a jury of first-degree murder, robbery, possessing an
instrument of crime and carrying a firearm without a license in the Court of Common
Pleas of Philadelphia County on December 3, 2003. Commonwealth v. Martin, No. 1805
EDA 2013, 2014 WL 10805982, at *1 (Pa. Sup. Ct. Sept. 10, 2014). The court sentenced
Martin to a mandatory life sentence for the first-degree murder conviction and an
additional term of twelve and one-half to twenty-five years on the remaining counts.
Id. Martin filed a direct appeal and the Superior Court of Pennsylvania affirmed his
conviction on April 19, 2005. Commonwealth v. Martin, 876 A.2d 466 (Pa. Super. April
19, 2005). Martin sought review from the Pennsylvania Supreme Court, which denied
his petition for allowance of appeal on November 10, 2005. Commonwealth v. Martin,
877 A.2d 1240 (Pa. 2005).
Martin filed a timely petition under Pennsylvania’s Post Conviction Relief Act
(“PCRA”) on October 20, 2006, arguing that trial counsel was ineffective for failing to
present Tamiko Nelson, his ex-girlfriend and mother of his children, as an alibi
witness. Martin, 2014 WL 10805982, at *1. The PCRA court appointed Barbara
McDermott to represent Martin. After investigating Martin’s assertions, including his
purported alibi, McDermott sent the court a “no merit” letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988), and moved to withdraw as counsel.
(R&R at 3, ECF No. 38.) The court dismissed Martin’s petition on February 5, 2008,
and he did not appeal. Martin, 2014 WL 10805982, at *1.
Martin filed four more PCRA petitions, but never sought to reinstate his
appellate rights or suggest that he was unaware that the first petition was denied. On
October 20, 2008, Martin filed his second PCRA petition, arguing that McDermott
abandoned him and improperly filed the no merit letter. Id. On April 15, 2009, the
PCRA court dismissed Martin’s petition, and he did not appeal. Id. On January 7,
2010, he filed a third PCRA petition, which was denied on August 17, 2010. Id. Again,
Martin did not appeal. On November 8, 2010, he filed a fourth petition seeking a new
trial based on after-discovered evidence, and the petition was dismissed on May 17,
2010. Id. Martin appealed, but the Pennsylvania Superior Court affirmed on June 20,
2012. Commonwealth v. Martin, 53 A.3d 935 (Pa. Super. Ct. 2012). Martin filed his
fifth PCRA petition on July 27, 2012, invoking the governmental interference exception
to the PCRA time bar, alleging he never received a copy of the order denying him relief
during his first PCRA proceeding. Martin, 2014 WL 10805982, at *2. This petition was
dismissed as untimely on May 21, 2013, and the Superior Court affirmed that decision
on September 10, 2014. Id. Martin did not appeal.
On February 11, 2015, Martin filed this pro se petition for a writ of habeas
corpus, (ECF No. 1), which he amended on May 27, 2015. (ECF No. 15.) Martin asserts
four claims. First, he contends that PCRA counsel was ineffective for filing the no
merit letter and for failing to obtain the alibi testimony of Nelson, which he alleges
demonstrates his actual innocence. Second, Martin avers that the prosecutors violated
Brady v. Maryland, 373 U.S. 83 (1963) by withholding evidence and/or introducing false
testimony at his trial. Third, he argues that he did not receive notice of dismissal of his
first PCRA petition, and finally, that trial counsel was ineffective for failing to meet
with him in person before trial. (ECF No. 15 at 1, 2, 5.) On June 30, 2017, Judge
Strawbridge issued his R&R, recommending that Martin’s claims for relief be denied
because his habeas petition was untimely. (R&R at 1, ECF No. 38.) On July 10, 2017,
Martin asserted three objections to the R&R, only one of which is related to the
determination that the habeas petition is untimely. Martin argues that the
fundamental miscarriage of justice exception applies based on new evidence
demonstrating his actual innocence.
The facts of this case are set forth in detail in Judge Strawbridge’s R&R and
need not be repeated here. “[F]or the portion of the R&R to which no objection [is]
made, the Court reviews the R&R for clear error.”1 Harris v. Mahally, No. 14-2879,
2016 WL 4440337, at *4 (E.D. Pa. Aug. 22, 2016). The Court reviews de novo the
specific portions of the R&R to which a party objects. See 28 U.S.C. § 636(b)(1); see
also Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The
Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a
one-year statute of limitations on applications for writs of habeas corpus. 28 U.S.C.
§ 2244(d)(1). The limitations period begins to run from the latest of the following:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right was initially recognized by
the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
When reviewing those portions of the report to which no objection is made, the Court should,
as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” FED. R. CIV. P. 72(b) advisory committee notes; see also
Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998) (“In the absence of a timely objection,
therefore, this Court will review [a] Magistrate Judge[’s] . . . Report and Recommendation for ‘clear
error.’”). For the portions of the R&R to which Martin has not objected, no clear error appears on the
face of the record and the Court accordingly accepts Judge Strawbridge’s recommendation.
(D) the date on which the factual predicate of the claim or claims
presented could be discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)–(D).
Federal courts have equitable authority to toll the one-year statute of limitations
by “invok[ing] the miscarriage of justice exception.” McQuiggin v. Perkins, 569 U.S.
383, 397 (2013). Under this exception, “a credible showing of actual innocence may
allow a prisoner to pursue his constitutional claims…on the merits notwithstanding the
existence of a procedural bar to relief.” Id. at 392. “The fundamental miscarriage of
justice exception is narrow,” applying “‘to a severely confined category: cases in which
new evidence shows it is more likely than not that no reasonable juror would have
convicted [the petitioner].’” Coleman v. Greene, 845 F.3d 73, 76 (3d Cir. 2017) (quoting
McQuiggin, 569 U.S. at 395 (quotation omitted)). “[T]he exception is only available
when a petition[er] presents ‘evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial was
free of nonharmless constitutional error.’” Id. (quoting Schlup v. Delo, 513 U.S. 298,
316 (1995)). “[W]ithout any new evidence of innocence, even the existence of a
concededly meritorious constitutional violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to reach the merits of a barred
claim.” Id. “Proving actual innocence based on new evidence requires the petitioner to
demonstrate (1) new evidence (2) that is reliable and (3) so probative of innocence that
no reasonable juror would have convicted the petitioner.” Sistrunk v. Rozum, 674 F.3d
181, 191 (3d Cir. 2012) (citing Schlup, 513 U.S. at 324). “All three Schlup factors are
necessary…to prevail.” Id. (citing House v. Bell, 547 U.S. 518, 636–37 (2006)).
Martin’s conviction became final on February 8, 2006. He filed his first PCRA
petition on October 20, 2006, 254 days after his final judgment date, tolling the oneyear limitations period. (ECF No. 38 at 7.) The PCRA proceeding concluded on March
6, 2008, giving Martin 111 days, or until June 25, 2008 to file his federal habeas
petition. Martin did not file that petition until February 11, 2015. (ECF No. 1.)
Martin does not argue that he qualifies for an alternative start date of the one-year
limitations period under § 2244(d)(1)(A)–(D), and his habeas petition is untimely unless
the fundamental miscarriage of justice exception applies.
Martin contends that new evidence in the form of an affidavit purportedly
submitted by Tamiko Nelson demonstrates his actual innocence. In her affidavit,
Nelson states that Martin was with her at a surprise 50th birthday party for Martin’s
mother on the night of the murder for which Martin was convicted. (R&R at 3, ECF No.
38.) As part of her investigation, McDermott spoke with Martin’s mother, who thought
that Martin was at her party, despite the fact that the party was held a year after
Martin was already in custody. (Id.) Martin’s mother also informed McDermott that
she was sure that Nelson was not at the party. (Id.)
Nelson’s affidavit fails to demonstrate Martin’s actual innocence because it is not
new, it is unreliable, and is not so probative of Martin’s innocence that no reasonable
juror would have convicted him. The evidence is not “new” because Nelson’s story—
that she and Martin were together at a surprise party the night of the murder—was
available but not presented during trial.2 See Sistrunk, 674 F.3d at 189; see also Teagle
v. Diguglielmo, 336 Fed. App’x 209, 213 (3d Cir. 2009) (concluding that witness
statements were not new because “it was available at trial and defense counsel chose
not to present it.”). The affidavit is also unreliable, having been submitted over five
After filing his habeas petition, Martin filed a Rule 60(b) Motion (ECF No. 43) based on: (1)
alleged new evidence in the form of Nelson’s affidavit; (2) alleged fraud for never having been
notified of McDermott’s no merit letter; and (3) trial counsel’s failure to meet prior to trial. “Rule
60(b) provides litigants with a mechanism by which they may obtain relief from a final judgment
‘under a limited set of circumstances[.]’” Satterfield v. Dist. Attorney Philadelphia, 872 F.3d 152, 158
(3d Cir. 2017) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528 (2005)). Martin’s first claim arises
under Rule 60(b)(2), which permits the court to relieve a party of a final judgment based on newly
discovered evidence. Fed. R. Civ. P. 60(b)(2). “A party is entitled to a new trial…if [the new]
evidence is (1) material and not merely cumulative, (2) could not have been discovered prior to trial
through the exercise of reasonable diligence, and (3) would probably change the outcome of the trial.”
Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995) (emphasis in original).
Martin was not reasonably diligent because has “has provided no explanation as to why he could not”
locate and acquire Nelson’s testimony prior to trial. Boldini v. Wilson, 609 F. App’x 721, 724 (3d Cir.
2015); see also Giordano v. McCartney, 385 F.2d 154, 156 (3d Cir. 1967) (finding affidavit testimony
was not new evidence because “with the exercise of reasonable diligence [the witness] could have
been interviewed prior to trial.”).
Martin’s second claim is governed by Rule 60(b)(3), which permits relief for “fraud[,]
misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3). Martin alleges
that PCRA counsel committed fraud by falsely claiming she notified him of the no merit letter.
McDermott was appointed by the PCRA court to represent Martin, and thus does not constitute an
opposing party within the meaning of Rule 60(b)(3).
Rule 60(b)(6) governs Martin’s third claim, which permits relief for “any other reason that
justifies relief.” Fed. R. Civ. P. 60(b)(6). Martin alleges that a change in decisional law provides a
basis for relief under Rule 60(b)(6), citing Commonwealth v. Brooks, 839 A.2d 245, 249 (Pa. 2003),
which held that trial counsel was ineffective for failing to meet with the defendant in a capital
murder prosecution. Martin alleges that trial counsel failed to have any face to face meetings prior
to trial. “Intervening developments in the law by themselves rarely constitute the extraordinary
circumstances required for relief under Rule 60(b)(6).” Reform Party of Allegheny Cty. v. Allegheny
Cty. Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999) (quoting Agostini v. Felton, 521 U.S. 203
(1997)). “A decision of the Supreme Court of the United States or a Court of Appeals may provide
the extraordinary circumstances for granting Rule 60(b)(6) motion[.]” Wilson v. Fenton, 684 F.2d
249, 251 (3d Cir. 1982). Pennsylvania law is not controlling precedent and does not constitute an
extraordinary circumstance for relief under Rule 60(b)(6).
Although Pennsylvania law is not controlling precedent, “[w]henever a petitioner bases a
Rule 60(b)(6) motion on a change in decisional law, the court should evaluate…all of the equitable
circumstances and clearly articulate the reasoning underlying its ultimate determination.”
Satterfield, 872 F.3d at 162; see also Gonzalez, 545 U.S. at 535 (noting that “extraordinary
circumstances” under Rule 60(b)(6) “will rarely occur in the habeas context.”). There is a preference
that final judgments not be disturbed, and Martin appears to be using Rule 60(b) as a method of
appeal. See Lasky v. Cont’l Prods. Corp., 804 F.2d 250, 256 (3d Cir. 1986). The Rule 60(b) Motion
was not filed within a reasonable time of Martin’s trial or his first PCRA petition. He had a trial on
the merits and filed five unsuccessful PCRA petitions. There are no “intervening equities” which
would warrant granting relief, and the Court also denies Martin’s Rule 60(b) Motion.
years after Martin’s conviction. See Taylor v. Illinois, 484 U.S. 400, 414 (1988) (“It
is…reasonable to presume that there is something suspect about a defense witness who
is not identified until after the 11th hour has passed.”). Moreover, Nelson’s affidavit is
insufficient to show that no reasonable juror would have convicted Martin; it fails to
satisfy the exacting standard for the fundamental miscarriage of justice exception to
apply because it is not so strong as to undermine confidence in the outcome of the trial.
See Coleman, 845 F.3d at 76. Martin has failed to demonstrate that, in light of Nelson’s
affidavit, “no juror, acting reasonably, would have voted to find him guilty beyond a
reasonable doubt.” Coleman, 845 F.3d at 77 (quoting McQuiggin, 569 U.S. at 386); see
also Houck v. Stickman, 625 F.3d 88, 95 (3d Cir. 2010). “Schlup sets a supremely high
bar,” and Nelson’s long after the fact affidavit cannot clear it. Sistrunk, 674 F.3d at
192. For this reason, the narrow fundamental miscarriage of justice exception is
inapplicable. See Coleman, 845 F.3d at 76.
Martin’s second and third “objections” to the R&R are not really objections at all;
they restate claims raised in his habeas petition, and neither addresses Judge
Strawbridge’s accurate conclusion that the petition is untimely. They are accordingly
overruled. See, e.g., Williams v. Glunt, No. 15-781, 2016 WL 3476264, at *3 (E.D. Pa.
June 27, 2016) (noting that objection based on insufficient evidence “does not excuse
[petitioner’s] failure to comply with the one-year limitations period. I thus need not
reach the merits of his time-barred claim.”); Bland v. Gilmore, No. 15-6219, 2016 WL
3982315, at *1 (E.D. Pa. July 21, 2016) (overruling petitioner’s objections that “do not
even address equitable tolling much less present any compelling argument for its
application to his habeas petition.”); Alderman v. Chesney, No. 01-4713, 2002 WL
1478755, at *1 (E.D. Pa. July 9, 2002) (noting objections “are merely a restatement of
his claims, as they do not address [the] recommendation that Petitioner’s claim is timebarred.”).
For the reasons above, the Court adopts the R&R in its entirety, overrules
Martin’s objections and denies and dismisses Martin’s petition. An appropriate order
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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