Riley v. Meyers, et al
Filing
17
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we adopt the Report and Recommendation (Doc. 15) as modified. Petitioners Motion Requesting to Vacate Judgment Entered on September 22nd, 2000, Due to Exceptional Circumstances in the Discovery of Previous Unavailable Evidence and an Intervening Change in Controlling Law Pertaining to Petitioners First Timely Filed Habeas Petition Pursuant to Federal Rules of Civil Procedure 60(b)(2) and 60(b)(6) Providing Extraordinary Relief (Doc. 12) is denied. We also conclude there is no basis for the issuance of a certificate of appealability. An Appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 5/1/14. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES W. RILEY,
:
:
:CIVIL ACTION NO. 3:00-CV-1183
:
:(JUDGE CONABOY)
:(Magistrate Judge Schwab)
:
:
:
Petitioner,
v.
ROBERT W. MYERS, et al.,
Respondents.
___________________________________________________________________
MEMORANDUM
Here we consider the Report and Recommendation of Magistrate
Judge Susan E. Schwab recommending denial of Petitioner’s January
16, 2014, motion (Doc. 12) in which he requests that the Court
vacate judgment entered on September 22, 2000, pursuant to Federal
Rules of Civil Procedure 60(b)(2) and 60 (b)(6).
(Doc. 15 at 10.)
Magistrate Judge Schwab also recommends a finding be made that
there is no probable cause to issue a certificate of appealability.
(Id.)
On March 28, 2014, Petitioner filed objections to the Report
and Recommendation.
(Doc. 16.)
For the reasons discussed below,
we conclude Petitioner’s objections are without merit.
We adopt
the Report and Recommendation (Doc. 15) as modified, deny
Petitioner’s motion (Doc. 12), and find there is no basis for the
issuance of a certificate of appealability.
I. Background
In February 1993, Petitioner was convicted by a jury of first
degree murder in the July 1991 shooting death of his stepdaughter.
(Doc. 12 at 4; Doc. 15 at 2.)
On August 11, 1993, he was sentenced
to life imprisonment.
(Doc. 12 at 4.)
At trial, Petitioner
requested but was refused a jury instruction as to voluntary
intoxication.
(Doc. 12 at 4.)
Following direct appeal to the
Pennsylvania Superior Court, the conviction was vacated and the
matter was remanded for a new trial. (Doc. 12 at 4; Doc. 15 at 2.)
Petitioner asserts the Superior Court’s decision was based on the
determination that sufficient evidence was presented to merit
Petitioner’s requested jury instruction of voluntary intoxication.
(Doc. 12 at 4.)
(Id.)
Petitioner’s new trial was held in February 1996.
On March 1, 1996, a jury again convicted Petitioner of first
degree murder and Petitioner was sentenced to life imprisonment.
(Id.)
Petitioner filed a direct appeal with the Pennsylvania
Superior Court raising the issue that the voluntary intoxication
jury instruction was in error.
(Id.)
By decision dated October
21, 1996, and filed on December 1, 1996, Petitioner’s conviction
and sentence were affirmed by the Pennsylvania Superior Court.
(Doc. 15 at 2.)
Following the affirmance, Petitioner received a letter from
his attorney, Robert Trambley (“Trambley”).
(Doc. 15 at 2.)
Trambley had represented Petitioner at the second trial and on the
direct appeal that followed.
(Id. n.2.)
The letter indicated that
the trial transcript, pretrial conference transcript, and the
Superior Court’s opinion were enclosed.
(Id.)
Trambley further
advised Petitioner that he had not and did not intend to file a
2
Petition for Allowance of Appeal to the Supreme Court of
Pennsylvania, that Riley could hire an attorney or proceed on his
own, and that Riley should contact him if he needed additional
documents or had any questions.
(Id.)
Petitioner did not file a
direct appeal or any petition for post-conviction relief in
Pennsylvania state court.
(Doc. 15 at 2-3.)
He states that he
specifically directed Trambley to submit via his direct appeal and
allowance of appeal Petitioner’s claim that the trial court erred
in permitting Petitioner’s wife to testify against him at trial in
violation of 42 Pa. C.S. § 5913(4).
(Doc. 12 at 5.)
Petitioner
asserts that the failure to raise this claim resulted in the claim
not being exhausted: “Petitioner could not have presented this
specific claim via his first timely filed writ of habeas corpus
petition due to the fact that this claim would not have mustered
the federal exhaustion and procedural default requirements.”
(Doc.
12 at 6.)
On June 30, 2000, Petitioner filed a federal habeas corpus
petition in this Court.
(Doc. 1.)
On August 1, 2000, pursuant to
the Third Circuit’s mandate in Mason v. Meyers, 208 F.3d 414 (3d
Cir. 2000), Magistrate Judge J. Andrew Smyser put Petitioner on
notice of the consequences of filing a federal habeas corpus
petition and the procedural requirements that he must satisfy under
the relevant habeas corpus statutes.
(Doc. 5; Doc. 15 at 3.)
Petitioner was also given the option of either proceeding on his
3
original petition, as filed, or withdrawing the petition and filing
an all-inclusive, comprehensive one within one year of the AEDPA
statutorily prescribed period, 28 U.S.C. § 2244(d).
(Id.)
On August 11, 2000, Petitioner filed a response to the Order
which states in relevant part “‘if these Honorable Courts don’t
appoint counsel as set forth above, then it would be petitioner’s
desire to withdraw his writ of habeas corpus at this time and
return to the state to seek his state records within confines of
his legal options, then returning to this court at a latter date.’”
(Doc. 8 at 2 (quoting Doc. 6).)
Petitioner also stated that he
would want his petition ruled upon if the Court did not appoint
counsel.
(Id.)
By Report and Recommendation of August 28, 2000,
Magistrate Judge Smyser recommended that the petition be deemed
withdrawn and the case file be closed.
(Doc. 7.)
Petitioner did
not file objections to the Report and Recommendation.
Agreeing
with the Magistrate Judge that there was no basis upon which to
appoint counsel, the Court determined that Petitioner desired to
withdraw his original § 2254 petition and, by Order of September
22, 2000, deemed the petition withdrawn.
(Doc. 8 at 3.)
Petitioner did not seek timely reconsideration of the closing Order
or appeal the Court’s decision.
On April 30, 2002, Petitioner filed another 28 U.S.C. § 2254
petition in this Court, 3:02-CV-750.
substantive grounds for relief:
4
Petitioner raised six
1) he was denied the right to appeal to the
Supreme Court of Pennsylvania because his
counsel abandoned him, (Doc. 1 at 1); 2) he
was constructively denied the right to
counsel, due process and equal protection on
appeal and at trial because his counsel’s
performance was in effect no meaningful
assistance, (Id. at 8); 3) appellate counsel
was ineffective because he was burdened by a
conflict of interest in that he did not raise
issues related to his own ineffectiveness on
appeal, nor did he advise Petitioner of the
appropriateness of having other counsel file
post-trial motions, (Id. at 11); 4) trial
counsel was ineffective for failing to
adequately investigate and prepare for trial
and present a proper defense, (Id. at 13); 5)
trial counsel was inadequate for failing to
preserve and raise the issue of legal,
factual or actual innocence of the crime
charged in that Petitioner asserts he did not
have the requisite specific intent required
for first degree murder, (Id. at 18); and 6)
Petitioner was denied due process and a
fundamentally fair trial because the trial
judge made an improper comment on
Petitioner’s guilt or innocence during jury
instruction, (Id. at 22).
(M.D. Pa. Civ. A. No. 3:02-CV-750, Doc. 31 at 5-6.)
By Memorandum and Order of November 1, 2002, the Court
concluded the habeas action was barred by the statute of
limitations provisions of 28 U.S.C. § 2244(d) and Petitioner could
not satisfy the requirements necessary for the Court to apply
equitable tolling principles.
Doc. 31 at 7-20.)
(M.D. Pa. Civ. A. No. 3:02-CV-750,
Petitioner appealed the Court’s decision to the
Third Circuit Court of Appeals.
Doc. 34.)
(M.D. Pa. Civ. A. No. 3:02-CV-750,
It appears Petitioner filed a petition for a writ of
certiorari in the United States Supreme Court before the Third
5
Circuit decided his appeal.
Doc. 40.)
(M.D. Pa. Civ. A. No. 3:02-CV-750,
On October 23, 2003, the Third Circuit Court of Appeals
received notification that the Supreme Court denied the petition
for writ of certiorari--that correspondence was docketed in this
Court on November 3, 2003.
41.)
(M.D. Pa. Civ. A. No. 3:02-CV-750, Doc.
Petitioner’s appeal in the Third Circuit was noted to be
terminated as per a docket entry dated November 3, 2003.
On May 3, 2007, Petitioner filed “Petition for Relief in
Accordance to F.R.C.P. Rule 60(b)(6)” in case number 3:00-CV-1183,
the docket number assigned his original habeas filing.
With this
motion, Petitioner asserted that the “habeas court abused its
discretion by not holding an evidentiary hearing on a mixed
question of fact and law-ineffective assistance of counsel under
the presumption of correctness.”
(Doc. 9 at 1.)
the motion by Order of May 18, 2007.
The Court denied
(Doc. 11.)
On January 16, 2014, Petitioner filed the motion at issue
here: “Motion Requesting to Vacate Judgment Entered on September
22nd, 2000, Due to Exceptional Circumstances in the Discovery of
Previous Unavailable Evidence and an Intervening Change in
Controlling Law Pertaining to Petitioner’s First Timely Filed
Habeas Petition Pursuant to Federal Rules of Civil Procedure
60(b)(2) and 60(b)(6) Providing Extraordinary Relief.”
(Doc. 12.)
Petitioner states that “due to trial and direct appellate counsels’
dereliction in not investigating and/or presenting the Affidavit
6
[attached to the motion], denied Petitioner his right to due
process of law and ineffective assistance of counsel under both the
Fourteenth and Sixth United States Constitutional Amendments.”
(Doc. 12 at 8.)
The affidavit referenced is that of Connie M.
Riley dated September 3, 1993, in which she states, inter alia,
that she was told she could be held in contempt of court if she did
not testify at her husband’s trial scheduled for February 1993,
that she had been subpoenaed to testify, and that she had informed
the Assistant District Attorney and her husband’s attorney that she
did not want to testify.
(See Doc. 12 at 19.)
Petitioner asserts
the Court has jurisdiction over the instant motion pursuant to
Gonzalez v. Crosby, 545 U.S. 524 (2005), citing the case for the
proposition that “Rule 60(b) allows a party to seek relief from a
final judgment, and request reopening of his case, under a certain
set of limited circumstances, including fraud, mistake and newly
discovered evidence.”
(Doc. 12 at 9.)
Petitioner also maintains
the court should find his motion timely filed and consider his
actual innocence claim pursuant to McQuiggin v. Perkins, 133 S. Ct.
1924 (2013).1
(Doc. 12 at 11-12.)
As noted above, Magistrate Judge Schwab recommends that the
1
Petitioner also cites to McGuiggin and Trevino v. Thaler, 133
S. Ct. 1911 (2013), as “newly discovered evidence to allow
Petitioner to reopen his first timely filed writ petition.” (Doc.
12 at 9.) While these cases may be “new,” they are not newly
discovered evidence. Therefore, our discussion of new evidence
will be limited to the Affidavit of Connie Riley.
7
Court deny the motion and not issue a certificate of appealability.
(Doc. 15.)
The recommended denial is based on the finding that the
one-year time limit for filing a motion pursuant to Rule 60(b)(2)
has long passed and the time to act under the rule is not to be
extended, and the motion cannot proceed under Rule 60(b)(6) because
it was not brought within a “reasonable time” and Petitioner has
not shown exceptional circumstances that qualify as an excuse for
the lengthy delay.
(Doc. 15 at 6-7.)
Petitioner specifically objects to the Report and
Recommendation on two main bases.
He first objects to the
Magistrate Judge’s factual recitation regarding the dismissal of
the habeas petition which he filed in the above-captioned matter on
June 30, 2000.
(Doc. 16 at 3-6.)
He also asserts that the
Magistrate Judge “did not address Petitioner’s actual innocence
equitable tolling claim and summarily dismissed Petitioner’s Fed.
R. Civ. P. 60(b) motion in stating ‘Petitioner’s 60(b) motion
attacks the underlying claims,[’] which is incorrect, whereas
Petitioner throughout his 60(b) motion attacked the court’s
integrity via it’s order of dismissal, i.e., the untimeliness of
his petition.”
(Doc. 16 at 7.)
II. Discussion
A.
Standard of Review
When a petitioner files objections to a magistrate judge’s
report, the reviewing court conducts a de novo review of those
8
portions of the report to which objection is made.
636(b)(1).
To warrant de novo review, the objections must be both
timely and specific.
1984).
28 U.S.C. §
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.
The court may accept, reject or modify, in whole or in
part, the findings made by the magistrate judge.
636(b)(1).
28 U.S.C. §
clear error.
Uncontested portions of the report are reviewed for
Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa.
1998).
B.
Petitioner’s Motion and Objections
Petitioner seeks relief from the September 2000 Order of this
Court pursuant to Federal Rule 60(b)(2) and 60(b)(6).
(Doc. 12.)
Having performed the requisite review, we concur with the
Magistrate Judge that Petitioner is not entitled to relief under
either provision of Rule 60(b).
Federal Rule of Civil Procedure 60(b) provides “Grounds for
Relief from a Final Judgment, Order, or Proceeding.”
Pursuant to
Rule 60(b)(2), “the court may relieve a party or its legal
representative from a final judgment, order, or proceeding” based
on “newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b).”
Rule 60(b)(6) allows the same for “any other
reason that justifies relief.”
A motion under Rule 60(b) must be
made within “a reasonable time” and under Rule 60(b)(2) “no more
than a year after the entry of the judgment or order or the date of
9
the proceeding.”
Fed. R. Civ. P. 60(c)(1).
What constitutes a
“reasonable time” for purposes of Rule 60(b)(6) depends on the
circumstances of each case. Delzona Corp. v. Sacks, 265 F.2d 157,
159 (3d Cir. 1959); In re Diet Drugs, 383 F. App’x 242, 246 (3d
Cir. 2010) (not precedential) (citing Delzona).
“[A] movant
seeking relief under Rule 60(b)(6) [must] show ‘extraordinary
circumstances’ justifying the reopening of a final judgment.”
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (citations omitted).
Gonzalez added that “[s]uch circumstances will rarely occur in the
habeas context.”
Id.
When presented with a Rule 60(b) motion filed in the
circumstances presented here, the Court must first consider whether
the motion is in essence a second or successive habeas petition–such an analysis being necessary because, pursuant to 28 U.S.C. §
2244(b)(3)(A), a state prisoner seeking to file a second or
successive petition must obtain an order from the appropriate court
of appeals authorizing the district court to consider the petition.
Burton v. Stewart, 549 U.S. 147, 157 (2007); Pridgen v. Shannon,
380 F.3d 721, 725 (3d Cir. 2004).
“A determination that the Rule
60(b) motion was in essence a successive habeas petition means that
under AEDPA the District Court did not have jurisdiction to
entertain the motion because the Court had not authorized [the
petitioner] to file a successive habeas petition.”
(citing 28 U.S.C. § 2244(b)).
10
380 F.3d at 725
In Gonzalez v. Crosby the Court analyzed when a motion couched
in terms of Rule 60(b) was in reality a second or successive § 2254
habeas petition subject to the requirements relevant to such a
motion pursuant to 28 U.S.C. § 2244(b).
Gonzalez makes clear that
where a Rule 60 motion asserts a new claim it is a successive
petition.
545 U.S. at 530-32.
“Claim” for purposes of the
analysis (as used in § 2244(b)) is defined as “an asserted federal
basis for relief from a state court’s judgment of conviction.”
545 U.S. at 530.
The Court provided examples of when a Rule 60(b)
motion is properly filed as such and when it runs afoul of AEDPA’s
requirements.
Using Rule 60(b) to present new claims for
relief from a state court’s judgment of
conviction-even claims couched in the
language of a true Rule 60(b) motioncircumvents AEDPA’s requirement that a new
claim be dismissed unless it relies on either
a new rule of constitutional law or newly
discovered facts. § 2244(b)(2). The same is
true of a Rule 60(b)(2) motion presenting new
evidence in support of a claim already
litigated: Even assuming that reliance on a
new factual predicate causes that motion to
escape § 2244(b)(1)’s prohibition of claims
“presented in a prior application,” §
2244(b)(2)(B) requires a more convincing
factual showing than does Rule 60(b).
Likewise, a Rule 60(b) motion based on a
purported change in the substantive law
governing the claim could be used to
circumvent § 2244(b)(2)(A)’s dictate that the
only new law on which a successive petition
may rely is “a new rule of constitutional
law, made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable.” In addition to the
substantive conflict with AEDPA standards, in
11
each of these three examples use of Rule
60(b) would impermissibly circumvent the
requirement that a successive habeas petition
be precertified by the court of appeals as
falling within an exception to the
successive-petition bar. § 2244(b)(3).
In most cases, determining whether a
Rule 60(b) motion advances one or more
“claims” will be relatively simple. A motion
that seeks to add a new ground for relief . .
. will of course qualify. A motion can also
be said to bring a “claim” if it attacks the
federal court’s previous resolution of a
claim on the merits since alleging that the
court erred in denying habeas relief on the
merits is effectively indistinguishable from
alleging that the movant is, under the
substantive provisions of the statutes,
entitled to habeas relief. That is not the
case, however, when a Rule 60(b) motion
attacks, not the substance of the federal
court’s resolution of a claim on the merits,
but some defect in the integrity of the
federal habeas proceedings.
545 U.S. at 531-32.
In analyzing Gonzalez, the Third Circuit Court of Appeals
explained that a 60(b) motion that challenges “a district court’s
failure to reach the merits of a petition based on the statute of
limitations does not constitute a second or successive habeas
petition.”
United States v. Andrews, 463 F. App’x 169, 171-72 (3d
Cir. 2012) (not precedential) (citing Gonzalez, 545 U.S. at 535-36;
Pridgen, 380 F.3d at 727-28 (allowing 60(b) motion that “attack[ed]
the habeas proceeding, rather than [the] underlying state
conviction”)).
The Circuit Court noted that a Rule 60(b) motion
which requests that the statute of
limitations for a prior petition be equitably
12
tolled for “actual innocence,” may require an
indirect assessment of the merits of the
petitioner’s underlying arguments. However,
Gonzalez, 545 U.S. at 532-36, 125 S. Ct.
2641, and Pridgen, 380 F.3d at 727-28, do not
indicate that we should treat such a motion
as the equivalent of an attack on the merits.
463 F. App’x at 172, n.1.
In Andrews, the district court never
reached the merits of the first petition and the Circuit Court
found that the petitioner’s Rule 60(b) motion “unambiguously
challenged the District Court’s failure to reach the merits of his
habeas petition on timeliness grounds, and not the resolution of
the claim on the merits.”
463 F. App’x at 172.2
Unlike Andrews, here there is much ambiguity; the simplicity
suggested by Gonzalez is not readily detectable.
Petitioner weaves
his two previous § 2254 filings together and sets out several
convoluted arguments ostensibly in support of his motion.
As noted
by the Magistrate Judge, it is difficult to determine precisely
from which Order Petitioner seeks relief.
6.)
(Doc. 15 at 4 & nn.3,
In his response to the Report and Recommendation, Petitioner
asserts that his 2002 habeas filing should “relate back” to his
2
In response to the district court’s determination that Rule
60(b) relief was not available, the Circuit Court concluded that
“[t]he District Court never reached the merits of Andrews first
petition for habeas relief, making it impossible for Andrews to
attack the resolution of his habeas claim on the merits. See
Gonzalez, 545 U.S. at 532, 125 S. Ct. 2641. Moreover, Andrews
clearly indicated that he sought equitable tolling of § 2255's
statute of limitations. We therefore conclude that the District
Court erred in treating the 60(b) motion as a second or successive
habeas petition.”
463 F. App’x at 172.
13
2000 filing: “being his first timely filed writ petition was
erroneously dismissed by the court based up a [sic] ‘motion for the
appointment of counsel,’ Petitioner’s second filed writ petition
that was dismissed as untimely should relate back to his very first
timely filed writ petition, specifically where Petitioner presents
newly discovered evidence of his ‘actual innocence.’”
(Doc. 16 at
5.)
Given the lack of clarity in Petitioner’s filings, we will
take a broad view of his claims.
Doing so, we find several things
relatively clear: Petitioner asserts a claim of actual innocense of
first degree murder because he did not have the requisite intent
for such a crime (see, e.g., Doc. 12 at 12); he seeks to support a
claim of ineffective assistance of counsel and actual innocence
with evidence he claims to be new, the affidavit of Connie M. Riley
(see, e.g., Doc. 12 at 9; Doc. 16 at 7); he asserts an entitlement
to relief based on a recently decided United States Supreme Court
case, McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (Doc. 12 at 9;
Doc. 16 at 6-7); and he asserts that he attacks only the integrity
of the Court’s order of dismissal, a dismissal he calls erroneous
(Doc. 16 at 5, 7).
We turn now to whether this Court has jurisdiction over the
pending Rule 60(b) motion or, alternatively, the motion is properly
construed as a second or successive habeas petition needing
approval of the Third Circuit Court of Appeals.
14
Because neither
previous habeas filing was considered on the merits, unless
Petitioner raises a new claim in the instant motion as that term is
defined in Gonzalez, our Rule 60(b) analysis may proceed.
However,
if a new claim is raised, the motion must be construed as a second
or successive § 2254 petition pursuant to Gonzalez.
Although it is uncertain what claims were raised in
Petitioner’s June 2000 filing, his April 2002 filing contained a
claim that trial counsel was inadequate for failing to preserve and
raise the issue of legal, factual or actual innocence of the crime
charged in that Petitioner asserts he did not have the requisite
specific intent required for first degree murder, (M.D. Pa. Civ. A.
No. 3:02-CV-750, Doc. 1 at 18).
Therefore, Petitioner’s current
actual innocence claim is not necessarily a new claim presented in
this motion though he asserts the viability of the claim on new
grounds and presents actual innocence as a gateway claim.
To the
extent it is not a new claim but rather one previously raised and
not decided on the merits because the Court concluded the petition
was not timely filed, Petitioner’s actual innocence claim is
properly raised in a Rule 60(b) motion.
This conclusion is consistent with post-Gonzalez decisions
within our circuit where a petitioner raises an actual innocence
claim in a Rule 60(b) motion and his earlier habeas filing was not
considered on the merits.
In Parham v. Klem, 496 F. App’x 181 (3d
Cir. 2012) (not precedential), the Third Circuit held that the
15
district court had jurisdiction over the petitioner’s Rule 60(b)
motion challenging the district court’s dismissal of his habeas
petition based on AEDPA statute of limitation grounds.3
District
courts within our circuit have retained jurisdiction of Rule 60(b)
motions where a petitioner asserts a gateway actual innocence claim
pursuant to the Supreme Court’s McQuiggin v. Perkins decision–3
Parham concluded it was not a second or successive motion
where the habeas petition had been dismissed as untimely and the
petitioner filed a Rule 60(b) motion stating he had new evidence of
actual innocence that would toll the statute of limitations–-the
court disagreed with the respondent that the motion was really a
second or successive habeas petition, finding that the petitioner
did not “seek vindication of a claim,” i.e., assert a claim on the
merits. 496 F. App’x at 184. Because the petitioner ultimately
did not make a credible gateway showing of actual innocence, the
court did not decide whether such a showing can equitably toll 28
U.S.C. § 2244(d)(1). Id. at 185.
We are mindful that we are not bound by Parham in that it is
not a precedential opinion. However, given the uncertain contours
of the law in this area and the approach taken by the district
courts within the Third Circuit, we proceed with the McQuiggin
analysis in the Rule 60(b) context. In so doing, we note that
support for a contrary conclusion can be found in the dissenting
opinion authored by Judge Greenaway disapproving of the
petitioner’s “tactic to proceed under Fed. R. Civ. P. 60(b),” to
“elude successive habeas treatment.” 496 F. App’x at 185. Judge
Greenaway observes that “the majority offers solace to a category
of litigants that our jurisprudence under the [AEDPA] would
preclude from seeking relief in this court.” Id. Because “the
Gonzalez Court made clear [that] the presentation of newly
discovered evidence is akin to mounting a ‘claim’ that must be
brought in accordance with the requirements of the AEDPA,” the
dissent faults the majority for not recognizing the “inherent
tension” in Gonzalez and arriving at a conclusion “antithetical to
the spirit of Gonzalez and . . . in contravention of this Court’s
precedent.” 496 F. App’x at 188. In sum, Judge Greenaway would
have found the petitioner’s Rule 60(b) motion a second or
successive habeas petition and the district court without
jurisdiction. Id. at 189-90.
16
precisely the situation here.
Sturgis v. Varner, Civil Action No.
01-060, 2014 WL 1340411 (E.D. Pa. Apr. 14, 2014); Aikens v. Wynder,
Civil Action No. 06-5239, 2014 WL 1202746 (E.D. Pa. Mar. 24, 2014);
Coombs v. Kelchner, Civil Action No. 1:05-CV-2308, 2014 WL 619793
(M.D. Pa. Feb. 18, 2014); Young v. Lamas, Civil Action No. 12-3623,
2014 WL 296940 (E.D. Pa. Jan. 27, 2014); Vogt v. Coleman, Civil
Action No. 08-530, 2013 WL 6577394 (W.D. Pa. Dec. 16, 2013);
Rethage v. Attorney General of the State of Pennsylvania, No. 05289, 2014 WL 1572407 (W.D. Pa. Apr. 17, 2014).4
Parham and the
vast majority of the district court cases first look at whether the
petitioner has made the requisite showing of innocence, i.e.,
whether the petitioner had established “actual innocence” as that
term is defined in Schlup v. Delo, 513 U.S. 298 (1995).
Coombs, 2014 WL 619793, at *3.5
See, e.g.,
We will do the same.
4
In both Vogt and Rethage, the district court noted that
research had not revealed a case in which a petitioner has been
permitted to reopen a judgment under Rule 60(b)(6) based solely on
the change in law brought about by McQuiggin: “In other words, it
is unclear whether an actual showing of innocence constitutes
‘extraordinary circumstances’ that justifies reopening a final
judgment pursuant to a Rule 60(b)(6) motion so that the district
court can evaluate the merits of claims in an untimely filed
petition.” Vogt, 2013 WL 6577394, at *5; see also Rethage, 2014 WL
1572407, at *4.
5
In Aikens, the district court first looked at whether the
change in law brought about by McQuiggin presented “extraordinary
circumstances” for purposes of Rule 60(b)(6). 2014 WL 1202746, at
*2. The court concluded that where the presiding judge “applied
the prevailing federal habeas statute of limitations at the time
[the petitioner’s] habeas petition was dismissed, the change in
decisional law based on interpretation of the habeas statute of
17
To establish a colorable claim of actual innocence, a
petitioner must “show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new
evidence.”6
1935.
Schlup, 513 U.S. at 327; McQuiggin, 133 S. Ct. at
This showing requires “new reliable evidence–-whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical evidence–-that was not presented at trial.”
Schlup,
513 U.S. at 324.
In holding that a colorable claim of actual innocence serves
as a gateway through which a petitioner may pass whether the
impediment is a procedural bar or the AEDPA statue of limitations
(thus allowing the district court to adjudicate the petition on its
merits), McQuiggin cautioned that, based on the Schlup standard,
tenable actual-innocence gateway pleas are rare.
1928.
133 S. Ct. at
Importantly, the Court distinguished the case under
consideration from equitable tolling cases previously decided in
that the petitioner did not assert “an excuse for filing after the
limitations in McQuiggin does not constitute an extraordinary
circumstance.” Id.
6
Whether the actual innocence test applies to a case such as
this–-where the petitioner does not argue that he did not commit
the crime but argues that he is responsible for a lesser degree of
guilt–-has not been decided by the Third Circuit Court of Appeals
or the Supreme Court. See Glass v. Vaughn, 65 F.3d 13, 16 (3d Cir.
1995); see also Sweger v. Chesney, 294 F.3d 506, 522 n.17 (3d Cir.
2002). As the Third Circuit has done, we will assume arguendo that
the actual innocence test applies. Id.
18
statute of limitations has run.
Instead, he maintains that a plea
of actual innocence can overcome AEDPA’s one-year statute of
limitations.
He thus seeks an equitable exception to § 2244(d)(1),
not an extension of the time statutorily prescribed.”
133 S. Ct.
at 1931 (citing Rivas v. Fischer, 687 F.3d 514, 547 n.42 (2d Cir.
2012) (“distinguishing from ‘equitable tolling’ a plea to override
the state of limitations when actual innocence is shown”).
Petitioner has utterly failed to present such evidence.
The
“new evidence” cited, Connie Riley’s affidavit, was executed in
1993.
Petitioner provides no reason why it was not presented
earlier.
However, earlier availability and diligent pursuit of the
assertedly exculpatory evidence is not a bar to relief under
McQuiggin: “Our opinion clarifies that a federal habeas court,
faced with an actual innocence gateway claim, should count
unjustifiable delay on a habeas petitioner’s part, not as an
absolute barrier to relief, but as a factor in determining whether
actual innocence has been shown.”
133 S. Ct. at 1928.
While the
delay and diligence factors do not preclude Petitioner’s claim, the
nature of the “new evidence” does not come close to making the
requisite showing.
Connie Riley’s affidavit shows only that she
did not want to testify and was told by both her husband’s attorney
and the assistant district attorney that, if she did not, she could
be held in contempt and possibly fined.
(Doc. 12 at 19.)
further states that she was subpoenaed and testified at
19
She
Petitioner’s February 1993 trial.7
Petitioner’s argument regarding Connie Riley’s testimony and
communications privileged pursuant to 42 Pa. C.S. §§ 5913(4) and
5914 (Doc. 12 at 5-6) adds nothing to support his claim of actual
innocence.
As Petitioner recognizes (Doc. 12 at 5), § 5913(4)
establishes that there is no spousal privilege not to testify in a
criminal proceeding when the charge pending against the defendant
includes murder–-the charge for which Petitioner was on trial.
Thus, Connie Riley’s Affidavit in which she states she was told
that she could be fined and held in contempt if she did not testify
and she was subpoenaed to testify (Doc. 12 at 19) shows nothing
inconsistent with the dictates of § 5913(4) and does not evidence
wrongdoing on the part of Petitioner’s attorney or the assistant
district attorney.
Although neither a husband nor wife may testify
to confidential communications made by one to the other pursuant to
§ 5914 unless the privilege is waived upon the trial, Petitioner
7
In light of the fact that Petitioner’s wife testified at his
trial, it is curious that he states
if in fact Petitioner’s wife was permitted to
testify to the facts of the instant case, she
would have verified the fact that Petitioner
was in fact in an intoxicated state at the
time of the alleged incident and that due to
Petitioner’s intoxication that he could not
have formed the intent to kill to have
established a first degree murder conviction.
(Doc. 16 at 8 (emphasis added).)
20
presents no evidence that his wife testified to a confidential
communication and that without such testimony no reasonable juror
would have voted to find him guilty of first degree murder beyond a
reasonable doubt.
See McQuiggin, 133 S. Ct. at 1928.
Therefore,
Petitioner has not satisfied the threshold inquiry and his motion
filed pursuant to Rule 60(b) is properly denied.8
Finally, to the extent Petitioner’s motion can be construed to
raise new claims, see Gonzalez, 545 U.S. at 530-33, the Third
Circuit must first grant him permission to raise such a claim in a
second or successive petition.
28 U.S.C. § 2244(b)(3)(A).
The analysis set out above addresses Petitioner’s objection to
the Report and Recommendation concerning his actual innocence
claim.
(See Doc. 16 at 7.)
In his response to the Report and
Recommendation, Petitioner also objects to the recitation of facts
concerning the Court’s closing of his June 30, 2000, § 2254
petition. (See Doc. 16 at 3.)
He denies that he requested to
withdraw the action if counsel was not appointed, asserting the
Court erroneously dismissed his filing.
(Doc. 16 at 3-5.)
This
claimed error is inherently addressed in the application of
8
Following the Parham approach, 496 F. App’x 185, we need not
decide whether we are faced with “extraordinary circumstances”
supporting relief under Rule 60(b)(6) in that Petitioner has failed
to demonstrate actual innocence. See, e.g., Sturgis, 2014 WL
1340411, at *3.
21
McQuiggin and analysis of Petitioner’s actual innocence claim.9
III. Conclusion
For the reasons discussed above, we adopt the Report and
Recommendation (Doc. 15) as modified.
Petitioner’s “Motion
Requesting to Vacate Judgment Entered on September 22nd, 2000, Due
to Exceptional Circumstances in the Discovery of Previous
Unavailable Evidence and an Intervening Change in Controlling Law
Pertaining to Petitioner’s First Timely Filed Habeas Petition
Pursuant to Federal Rules of Civil Procedure 60(b)(2) and 60(b)(6)
Providing Extraordinary Relief” (Doc. 12) is denied.
We also
conclude there is no basis for the issuance of a certificate of
appealability.
An Appropriate Order is filed simultaneously with
this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 1, 2014
9
To the extent Petitioner may be attempting to present a
different challenge to the Court’s September 22, 2000, Order in
which his habeas petition was deemed withdrawn (Doc. 8), he cannot
do so in his objections filing. See, e.g., Nguyen v. Wenerowicz,
Civ. A. No. 12cv06631, 2013 WL 6473264, at *6 (E.D. Pa. Sec. 10,
2013) (listing cases). Furthermore, if raised in a proper filing,
the claim would be subject to the Gonzalez analysis. In any case,
it would readily be found without merit in that the Court’s
determination was based on Petitioner’s clearly expressed desire to
withdraw his petition if counsel was not appointed. (Doc. 8 at 2
(quoting Doc. 6).)
22
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