VOGT v. COLEMAN et al
Filing
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ORDER denying 40 Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b). Signed by Magistrate Judge Lisa Pupo Lenihan on July 18, 2012.(kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEVEN DAVID VOGT,
Petitioner,
v.
SUPERINTENDENT COLEMAN,
Respondent.
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Civil Action No. 08 - 530
Chief Magistrate Judge Lisa Pupo Lenihan
ECF No. 40
MEMORANDUM OPINION AND ORDER
This case is before the Court on Petitioner’s Motion for Relief from Judgment pursuant to
Federal Rule of Civil Procedure 60(b) (ECF No. 40) filed on July 9, 2012. The motion is based
on the United States Supreme Court’s recent decision in Martinez v. Ryan, 132 S. Ct. 1309
(2012), which held that ineffectiveness of post-conviction counsel may serve to excuse the
procedural default of claims alleging trial counsel ineffectiveness.
Petitioner argues that
Martinez provides a proper ground for this Court to reopen his federal habeas proceeding. For
the reasons explained herein, Petitioner’s motion will be denied.
I. BACKGROUND
On January 31, 1991, Petitioner was found guilty by jury of Murder in the First Degree,
Robbery, Theft, Kidnapping and Criminal Conspiracy. Following the denial of post-verdict
motions, he was sentenced to life imprisonment on June 17, 1991. Petitioner filed a timely
notice of appeal to the Superior Court of Pennsylvania, which affirmed the judgment of the lower
court on October 21, 1991. Petitioner filed a Petition for Allowance of Appeal to the Supreme
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Court of Pennsylvania, which was denied by that court on June 25, 1993. He did not seek
discretionary review in the United States Supreme Court.
Petitioner filed a pro se petition for relief under the Pennsylvania Post Conviction Relief
Act (PCRA), 42 Pa. Const. Stat. § 9542. Following appointment of counsel, an amended petition
was filed asserting that Petitioner was entitled to relief due to newly discovered evidence. A
PCRA hearing was scheduled for December 7, 1998; however, on that date, Petitioner
voluntarily withdrew his PCRA petition. No appeal was filed.
Petitioner filed a second PCRA petition on July 2, 2004, and appointed counsel filed an
amended petition on November 17, 2004. A hearing was held on Petitioner’s PCRA petition on
January 27, 2006, and on July 12, 2006, the trial court denied the PCRA petition as untimely.
Petitioner filed a notice of appeal, and on October 24, 2007, the Superior Court of Pennsylvania
affirmed the trial court’s determination denying Petitioner PCRA relief.
Petitioner filed a
Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied by
that court on April 8, 2008.
Petitioner filed his Petition for Habeas Corpus in this case on April 14, 2008, and on
January 8, 2010, this Court dismissed the Petition as untimely because it was not filed within the
one-year limitations period provided for under 28 U.S.C. § 2244(d). Petitioner appealed and the
Third Circuit Court of Appeals denied his request for a certificate of appealability on May 24,
2010. He filed a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure
60(b) on September 24, 2010, asserting that he received new evidence of his actual innocence on
August 27, 2010. This Court denied the motion because Petitioner had not first exhausted his
newly discovered evidence claim in the Pennsylvania state courts. Petitioner’s Motion for
Reconsideration of that order was denied, and he filed an appeal to the Third Circuit, which
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denied a certificate of appealability on February 7, 2011. Petitioner filed yet another Rule 60(b)
motion on November 17, 2011, which was again denied.
Recently, Petitioner filed an application to the Third Circuit to file a second or successive
habeas corpus petition pursuant to 28 U.S.C. § 2244(b). He argued that the holding of Martinez
v. Ryan, 132 S. Ct. 1309 (2012), which allowed the ineffectiveness of counsel during collateral
proceedings to serve as possible “cause” for surmounting a procedural default, is a “new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). The Third Circuit denied his request on
May 31, 2012.
Now pending before the Court is another Rule 60(b) motion whereby Petitioner requests
that the Court reopen his federal habeas proceeding and consider his ineffective assistance of
trial counsel claims due to the Supreme Court’s recent holding in Martinez.
II. DISCUSSION
Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment
on several grounds, including the catch-all category “any other reason justifying relief form the
operation of the judgment.” Fed. R. Civ. P. 60(b)(6). A motion under subsection (b)(6) must be
brought “within a reasonable time,” Fed. R. Civ. P. 60(c)(1), and requires a showing of
“extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
A. Second or Successive Petition
For habeas petitioners, Rule 60(b) may not be used to avoid the prohibition set forth in 28
U.S.C. § 2244(b) against second or successive petitions. In Gonzalez, the Court explained that a
Rule 60(b) motion constitutes a second or successive habeas petition when it advances a new
ground for relief or “attacks the federal court’s previous resolution of a claim on the merits.” Id.
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at 532. “On the merits” refers “to a determination that there exist or do not exist grounds
entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d).” Id. at n.4. The
Court further explained that a Rule 60(b) motion does not constitute a second or successive
petition when the petitioner “merely asserts that a previous ruling which precluded a merits
determination was in error – for example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar.” Id. When “no ‘claim’ is presented, there is no
basis for contending that the Rule 60(b) motion should be treated like a habeas corpus
application.” Id. at 533.
Petitioner did not obtain an order from the Third Circuit before filing his pending motion.
Therefore, this Court must first determine if his motion actually presents a claim and thus should
be treated as a successive habeas petition. Upon review, it does not appear that Petitioner raises
any claims in his motion. Although it is unclear, Petitioner appears to assert that, pursuant to
Martinez, this Court can now consider his ineffective assistance of trial counsel claims
presumably without regard to the AEDPA statute of limitations.
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.”
Gonzalez, 545 U.S. at 535. Moreover, the Gonzalez Court recognized that “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,” it does not constitute a successive
habeas petition. Id. at 532. Therefore, despite the fact that it is unclear whether Petitioner is
actually challenging this Court’s previous ruling that his habeas petition was untimely filed, the
Court will nevertheless address Petitioner’s Rule 60(b) motion without requiring him to first
obtain an order from the Third Circuit Court of Appeals.
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B. Extraordinary Circumstances
The Court turns now to the issue raised in the instant motion. The Supreme Court has
required a showing of “extraordinary circumstances” to justify the reopening or a final judgment
and has recognized that “[s]uch circumstances will rarely occur in the habeas context.”
Gonzalez, 545 U.S. at 535.
To the extent Petitioner argues that the newly issued Martinez decision constitutes
extraordinary circumstances sufficient to reopen a final judgment under Rule 60(b), the Court
finds that it does not. Although the Third Circuit has yet to address this question, the Fifth
Circuit has held 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).” Id. at 320 (internal quotations omitted). In that case, Beunka
Adams, facing imminent execution, sought to have his execution stayed while he prosecuted a
Rule 60(b)(6) motion based on Martinez, asserting his intention to “vindicate his constitutional
right to effective counsel.” The court explained that:
In his Rule 60(b)(6) motion, Adams stated that the district court relied on
Coleman to conclude that Adams’s ineffective assistance of trial and appellate
counsel claims were procedurally defaulted and that ineffective assistance of state
post-conviction counsel could not constitute cause to excuse the default. Adams
asserted that, since the district court’s judgment, the Supreme Court had decided
Martinez, which created an exception to Coleman’s holding that ineffective
assistance of state habeas counsel cannot constitute cause to excuse procedural
default. Adams argues that Martinez constitutes “extraordinary circumstances”
entitling him to Rule 60(b)(6) relief.
679 F.3d at 316. The Fifth Circuit then went on to conclude:
[I]n denying Adams’s initial federal habeas petition, the district court correctly
determined that Adams’s claims were procedurally defaulted pursuant to the thenprevailing Supreme Court precedent of Coleman. The Supreme Court’s later
decision in Martinez, which creates a narrow exception to Coleman’s holding
regarding cause to excuse procedural default, does not constitute an
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“extraordinary circumstance” under Supreme Court and our precedent to warrant
Rule 60(b)(6) relief. See Gonzalez, 545 U.S. at 536, 125 S. Ct. 2641; Bailey, 894
F.2d at 160. The Martinez Court’s crafting of a narrow, equitable exception to
Coleman’s holding is “hardly extraordinary.” Gonzalez, 545 U.S. at 536, 125 S.
Ct. 2641; see also Martinez, 132 S. Ct. at 1320 (“The rule of Coleman governs in
all but the limited circumstances recognized here.”).
Because 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),”
Adams’s 60(b)(6) motion is without merit.
679 F.3d at 320. Thus, the Fifth Circuit vacated the district court’s stay of execution. The
Supreme Court, in turn, refused to stay Adams’s execution. Adams v. Thaler, 132 S. Ct. 1995
(2012).
Other district courts have ruled in accordance with the reasoning of the Fifth Circuit in
finding that Martinez does not present extraordinary circumstances to justify the reopening of
habeas proceedings under Rule 60(b). See Arthur v. Thomas, No. 2:01-CV-0983-LSC, 2012
U.S. Dist. LEXIS 85563, at * 13-17 (N.D. Ala. June 20, 2012); Sims v. Houston, No.
4:07CV3088, 2012 U.S. Dist. LEXIS 80945, at *2 (D. Neb. June 12, 2012). But see Lopez v.
Ryan, 678 F.3d 1131, 1135-36 (9th Cir. 2012) (finding that “the Supreme Court’s development
in Martinez constitutes a remarkable – if limited – development in the Court’s equitable
jurisprudence” and weighs slightly in favor of reopening the petitioner’s habeas case) (internal
quotations and citations omitted). This Court also finds that Martinez does not support a finding
of extraordinary circumstances.
Moreover, even if Martinez could constitute “extraordinary circumstances” so as to
warrant relief from a long-standing judgment, there is nothing in Martinez that amounts to a
change in the law that is applicable to Petitioner’s situation. The Court’s consideration of
Petitioner’s habeas petition was limited to the threshold issue of timelines. Petitioner argues that
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Martinez provides for a newly recognized exception that “falls outside of the AEDPA.” (ECF
No. 40 at 7.) He contends that his ineffective assistance of trial counsel claims which were
defaulted due to the ineffective assistance of PCRA counsel “should never have been foreclosed”
and that “[h]ad this exception been recognized prior to the filing of [his] initial habeas corpus
petition, such issues could not have been dismissed under AEDPA standards.” (ECF No. 40 at
7.) Accordingly, Petitioner appears to assert that such claims are not foreclosed by the AEDPA
one-year statute of limitations on filing federal habeas corpus petitions. Petitioner, however, is
mistaken.
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 (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 (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. 5:11CV000218, 2012 U.S. Dist.
LEXIS 67541, at *1-2 (E.D. Ark. May 15, 2012) (same). As such, Martinez provides no relief to
Petitioner.
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Petitioner provides no cause to disturb the Court’s dismissal of his Petition for Writ of
Habeas Corpus as time-barred. Therefore,
IT IS HEREBY ORDERED that Petitioner’s Motion for Relief from Judgment pursuant
to Federal Rule of Civil Procedure 60(b) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
Dated: July 18, 2012.
_________________________
Lisa Pupo Lenihan
Chief United States Magistrate Judge
cc: Steven David Vogt
BN-3436
SCI Fayette
Box 9999
LaBelle, PA 15450-0999
Counsel of record.
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