Wise v. Rozum et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 42 38 37 . Signed by Honorable Malachy E Mannion on 10/28/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.
Sean DARRINGTON, Petitioner
v.
PA DEPT. OF CORRECTIONS, Respondent.
Civil Action No. 3:02–CV–0007.
Nov. 15, 2012.
Sean Darrington, Dallas, PA, pro se.
Anser Ahmad, Ahmad Law Offices, P.C., Harrisburg, PA,
for Petitioner.
Francis T. Chardo, II, Harrisburg, PA, for Respondent.
REPORT AND RECOMMENDATION
THOMAS M. BLEWITT, United States Magistrate Judge.
I. Background.
*1 On January 3, 2002, Petitioner Sean Darrington
(“Petitioner”) filed a petition for writ of habeas corpus
pursuant 28 U.S.C. § 2254. (Doc. 1). Petitioner was and
still is confined at the State Correctional Institute in
Dallas, Dallas, Pennsylvania (“SCI–Dallas”). In his habeas
petition, Petitioner challenged his 1994 homicide
conviction and life imprisonment sentence imposed by the
Dauphin County Court of Common Pleas. On June 4,
2002, Respondent filed a Motion to Dismiss the habeas
petition as time barred under § 2244. On July 15, 2002,
the Magistrate Judge issued a Report and
Recommendation (“R & R”) and recommended that
Respondent's motion be granted and the habeas petition be
dismissed as untimely. (Doc. 20).
On August 21, 2002, the Court issued a Memorandum
and Order and adopted the R & R. (Doc. 22). The Court
found that Petitioner's habeas petition had to be filed by

January 2, 2001, and that since Petitioner did not file his
petition until January 3, 2002, it was untimely under the
AEDPA. As such, the Court granted Respondent's Motion
to Dismiss and found no probable cause for the issuance
of a certificate of appealability. (Id., p. 6). The Court's
Order denied Petitioner a certificate of appealability since
it found that Petitioner's habeas petition filed in Civil No.
02–0007, M.D. Pa., was clearly untimely under the
AEDPA statute of limitations. (Id.).
Over ten and one-half years later, on November 7,
2012, Petitioner filed a 6–page typed Motion for Relief
from Judgment pursuant to Fed.R.Civ.P. 60(b) with
respect to the Court's August 21, 2002 Memorandum and
Order. (Doc. 23). Petitioner's motion is based on the
recent U.S. Supreme Court case of Martinez v. Ryan, –––
U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).
Petitioner contends that the case of Martinez v. Ryan,
allows him to now move to have his 2002 habeas petition
reopened, to grant him habeas relief and, for the court to
find that his layered ineffective assistance of counsel
claims are not procedurally defaulted. Petitioner states that
his habeas petition “meets an exception to the one-year
time bar of the [PA] Post Conviction Relief Act [PCRA],
[42] Pa.C.S. § 9545(b)(1), because of the new U.S.
Supreme Court ruling that is applied retroactively. See
Martinez v. Ryan, [––– U.S. ––––,] 132 S.Ct. 1309
[2012].” (Doc. 23, p. 3). Petitioner also contends that the
state court or this federal court can now address his
“habeas claim of layered ineffective assistance of counsel”
and that it is “not procedurally defaulted because
Pennsylvania's pleading rule for layered ineffective
assistance claims was not an independent and adequate
‘State’ Rule; was not applied consistently, an[d] the
“State” Post–Conviction Court [i.e. the Dauphin County
Court of Common Pleas] did not give [him] notice that the
claim was ‘inadequately pleaded.” (Id.). Petitioner further
states that his habeas petition is not subject to the PA
PCRA standards and he cites to the Martinez case for
support. (Id.). Specifically, Petitioner states that his habeas
petition should be reopened based on Martinez v. Ryan,

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––– U.S. ––––, 132 S.Ct. 1309 2012, 182 L.Ed.2d 272,
“which is applied retroactively and grants Defendants the
right to meet an exception to the one-year time-bar under
[the AEDPA with respect to] a Writ of Habeas Corpus.”
(Id., p. 2).
*2 The U.S. Supreme Court in Martinez v. Ryan,
“held that ineffectiveness of post-conviction counsel may
serve to excuse the procedural default of claims alleging
trial counsel ineffectiveness.” Vogt v. Coleman, 2012 WL
2930871, *1 (W.D.Pa. July 18, 2012). Based on the
following discussion, we will recommend that Petitioner's
Doc. 23 motion be denied.
II. State Procedural History.
Since the state procedural history of Petitioner's case
is fully detailed in the Doc. 20 R & R and in the Court's
Doc. 22 Memorandum, we do not repeat it and incorporate
it by reference herein. Also, in his Doc. 23 motion,
Petitioner does not indicate that any new proceedings in
his state court case transpired. Rather, as mentioned, he is
“attempting to challenge the [Dauphin County] Court's
earlier denial of his [ineffective assistance of counsel]
claims as procedurally defaulted in light of the U.S.
Supreme Court's recent decision in Martinez v. Ryan, [–––
U.S. ––––,] 132 S.Ct. 1309 [2012].” (Doc. 23, p. 1).
III. Discussion.
As stated, Petitioner filed this § 2254 habeas petition
with this Court on January 32, 2002. (Civil No. 02–0007,
M.D. Pa.). On June 10, 2002, Respondent filed a motion
to dismiss Petitioner's § 2254 habeas case. On August 21,
2002, this Court granted Petitioner's motion to dismiss. As
stated, this Court found that Petitioner's AEDPA statute of
limitations was expired.
Presently pending is Petitioner's Rule 60(b) motion in
which he seeks the Court to reopen his § 2254 habeas case
(Civil No. 02–0007, M.D. Pa.) and to consider his
ineffective assistance of counsel claims based on the U.S.
Supreme Court's recent decision in Martinez v. Ryan.

from judgment on several grounds, including the catch-all
category ‘any other reason justifying relief from the
operation of the judgment.’ Fed.R .Civ.P. 60(b)(6).”
Further, “[a] motion under [Rule 60] subsection (b)(6)
must be brought ‘within a reasonable time, ..., and requires
a showing of ‘extraordinary circumstances.” Id. (citing
Gonzlaez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641,
162 L.Ed.2d 480 (2005)).
Initially, we do not find that Petitioner's instant Rule
60(b) motion constitutes a second or successive habeas
petition since this Court did not resolve Petitioner's Civil
No. 02–0007 habeas petition on the merits, rather it
dismissed his habeas petition as untimely. Id. at *3(“A
Rule 60(b) motion challenging ‘only the District Court's
previous ruling on the AEDPA statute of limitations ... is
not the equivalent of a successive habeas petition.’ ”
(citing Gonzlaez v. Crosby, 545 U.S. at 535).
We now address Petitioner's Rule 60(b) motion. “The
Supreme Court has required a showing of ‘extraordinary
circumstance’ to justify the reopening of a final judgment
and has recognized that ‘[s]uch circumstances will rarely
occur in the habeas context.’ ” Id. at *3(citing Gonzlaez v.
Crosby, 545 U.S. at 535). Based on the Vogt case, which
is directly on point with the instant case, and the other
cases cited therein, with which we completely agree, we
find that Martinez does not present extraordinary
circumstances to allow the reopening of Petitioner
Darrington's habeas case under Rule 60(b). Vogt v.
Coleman, 2012 WL 2930871, *3–*4.
*3 Petitioner Darrington now contends in his Motion
(Doc. 23) that the case of Martinez v. Ryan, ––– U.S.
––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), allows
him habeas relief for his procedurally defaulted claim by
showing cause for the default and prejudice and, a
violation of federal law. We disagree with Petitioner and
agree with the Vogt Court and, find that Petitioner's
reliance on Martinez v. Ryan is misplaced.
In Boyd v. Rozum,, the Court articulated:

In Vogt v. Coleman, 2012 WL 2930871, *2, the Court
stated that Rule 60(b) “entitles the moving party to relief

[I]n Martinez, the United States Supreme Court held

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that inadequate assistance by PCRA counsel may
establish “cause” for a procedural default if the PCRA
counsel was ineffective under the standards enunciated
in the oft-cited Strickland case. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct., 2052, 80 L.Ed.2d
674 (1983). However, this is only applicable to
situations where PCRA counsel failed to raise issues of
trial counsel's alleged ineffectiveness, and thereby
procedurally defaulted the claims on federal habeas
review.
2012 WL 3595301 *2 (W.D.Pa. August 21, 2012).
Furthermore, in Vogt v. Coleman, the Court stated:
Martinez did not provide that post-conviction counsel's
ineffectiveness could establish an exception to or
equitable tolling of AEDPA's one-year statute of
limitations for filing a federal habeas corpus petition.
2012 WL 2930871 *4 (W.D.Pa. July 18, 2012)
(citations omitted).
We find that based on Vogt v. Coleman, Martinez is
not a proper basis to reopen a habeas petition and we do
not find that Martinez was not held to be retroactive to
cases on collateral review. We agree with the Court in
Vogt v. Coleman and find that Martinez is not a basis to
allow Petitioner Darrington to reopen his 2002 habeas
petition. As the Court pointed out in the recent case of
Vogt v. Coleman, Petitioner Vogt's motion with the Third
Circuit to file a second or successive habeas petition,
under § 2244(b), based on the Martinez case was denied
on May 31, 2012. Id., *2. The Court in Vogt v. Coleman,
agreed with the Fifth Circuit Court of Appeals in Adams
v. Thaler, 679 F.3d 312 (5th Cir.2012), that “the Martinez
decision is simply a change in decisional law and is ‘not
the kind of extraordinary circumstance that warrants relief
under Rule 60(b)(6)’ ....“ The Court in Vogt v. Coleman
cited to other district courts which have held consistent
with the Adams v. Thaler case, and concluded that
“Martinez does not support a finding of extraordinary
circumstances.” 2012 WL 2930871, *4. We agree with
this conclusion of the Vogt v. Coleman Court. See also

Gale v. Rozum, Civil No. 12–1315, M.D. Pa.
We also find as the Court in Vogt v. Coleman found,
that “there is nothing in Martinez that amounts to a change
in the law that is applicable to Petitioner's [Vogt's]
situation” since “[t]he Court's consideration of Petitioner's
[Vogt's] habeas petition was limited to the threshold issue
of timeliness.” Id. The Court in Vogt v. Coleman stated as
follows:
*4 Martinez held that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may
establish cause for a prisoner's procedural default of a
claim of ineffective assistance at trial.” Martinez, 132
S.Ct. at 1315. Martinez qualified the Supreme Court's
holding in Coleman v. Thompson, 501 U.S. 722, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991) and recognized a
“narrow exception” to what was settled law that
post-conviction counsel's ineffectiveness was irrelevant
to establishing cause for procedural default. However,
Martinez did not provide that post-conviction counsel's
ineffectiveness could establish an exception to or
equitable tolling of AEDPA's one-year statute of
limitations for filing a federal habeas corpus petition.
See Kingsberry v. Maryland, No. AW12–1556, 2012
U.S. Dist. LEXIS 77746, at *2–3, 2012 WL 2031991
(D.Md. June 4, 2012) (“Martinez did not address
equitable tolling in the context of ineffective assistance
of counsel”); Heard v. Hobbs, No. 5:12CV00091, 2012
U.S. Dist. LEXIS 68344, at *1–2 (E.D.Ark. May 16,
2012) (citing court's ruling in petitioner's related case
finding that “the holding in Martinez in no way relates
to timeliness of a federal habeas petition”); Heard v.
Hobbs, No. 5:11 CV000218, 2012 U.S. Dist. LEXIS
67541, at *1–2 (E.D.Ark. May 15, 2012) (same). As
such, Martinez provides no relief to Petitioner.
Id.
We find that Petitioner Darrington fails to show that
his instant claims based on the Martinez case fall within
any of the statutory exceptions outlined above, and that
based on the case of Vogt v. Coleman, Petitioner
Darrington's Doc. 23 motion should be denied. See Gale

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v. Rozum, Civil No. 12–1315, M.D. Pa.
Therefore, we will recommend that the Court deny
Petitioner's instant Rule 60(b) motion. See Vogt v.
Coleman, supra; Gale v. Rozum, Civil No. 12–1315, M.D.
Pa.(Court dismissed Petitioner Gale's third § 2254 habeas
petition and found that the Martinez case did not allow
habeas relief for Petitioner's procedurally defaulted
claims.).
IV. Recommendation.
For the reasons set forth above, we respectfully
recommend that the Court deny Petitioner Darrington's
Rule 60(b) motion to reopen his 2002 habeas petition.
(Doc.23).
M.D.Pa.,2012.
Darrington v. PA Dept. of Corrections
Slip Copy, 2012 WL 7150493 (M.D.Pa.)
END OF DOCUMENT

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