SUBER v. KERESTES et al
Filing
25
ORDER denying 21 Rule 60(b) Motion for Relief from Final Judgment. The Motion ostensibly filed pursuant to Fed.R.Civ.P. 60(b) is really a second or successive Section 2254 Habeas Petition and must be denied for lack of subject matter jurisdiction. In the alterantive, to the extent it is proprely treated as a Rule 60(b) motion, it is denied because it fails to establish the extraordinary circumstances as required by Rule 60(b) in order to justify relief. Signed by Magistrate Judge Maureen P. Kelly on 9-10-2012. A copy of the order is being mailed to Petitioner at his address of record. (tmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RONALD L. SUBER,
)
)
Petitioner,
)
)
vs.
)
)
JOHN KERESTES; THE DISTRICT
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ATTORNEY OF THE COUNTY OF
)
ALLEGHENY; and THE ATTORNEY
)
GENERAL OF THE STATE OF
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PENNSYLVANIA,
)
)
Respondents. )
Civil Action No. 09-1049
Magistrate Judge Maureen P. Kelly
OPINION AND ORDER
Ronald Lee Suber (“Petitioner”), presented to this Court a Motion for Relief From
Judgment (the “Motion”), ostensibly filed pursuant to Fed.R.Civ.P. 60(b). ECF No. 21. In
addition, Petitioner filed a Memorandum of Law in Support. ECF No. 22. After being directed
to do so, the Respondents have filed a Response to the Motion. ECF No. 24. The Motion is now
ripe for decision.
In the Motion, Petitioner complains of the denial of his habeas petition by Judge Bissoon.
Specifically, he complains about her treatment of his claim that his plea counsel was ineffective.
Petitioner argues that
Based on [Commonwealth v].Garcia, [23 A.3d 1059 (Pa.Super. 2011)],
conclusion [sic] on Padilla v. Kentucky, [130 S.Ct.1473 (2010),] supra, clarifying
and refining the scope of a criminal defendant[’]s Sixth Amendment right to the
effective assistance of counsel during the guilty plea process in Pennsylvania, this
court has wrongly decided Petitioner’s counsel’s advice to plead guilty cannot be
deemed to have been ineffective assistance warranting relief pursuant to Rule
60(b)(6) . . . .
ECF No. 21 at 5.
1
Because this Court finds that Petitioner is really attacking the denial of his
ineffectiveness claim on the merits by Judge Bissoon in her order denying his habeas
corpus petition, the so-called Motion filed pursuant to Rule 60(b) is really a second or
successive Petition for Writ of Habeas Corpus and must be denied for lack of subject
matter jurisdiction.
In the alternative, even if not a second or successive Section 2254 habeas petition,
the Motion fails to show extraordinary circumstances so as to justify relief under Rule
60(b).
A.
FACTUAL AND PROCEDURAL HISTORY
Petitioner pleaded guilty to one count of Rape, one count of Involuntary Deviate Sexual
Intercourse (“IDSI”), one count of Indecent Assault, one count of Indecent Exposure and one
count of Corruption of Minors in the sexual assault of a seven year old girl. Petitioner’s wife
was baby-sitting the girl when Petitioner committed the acts.
At the guilty plea hearing, the District Attorney summarized the factual basis of the plea,
describing what evidence the Commonwealth would have produced, had the case gone to trial, as
follows:
She [i.e., the victim] would testify that she was asleep on the couch. She
awoke when the defendant pulled down her underwear. He then proceeded to lick
her vagina, took her underwear off, exposed his penis, touched her, then climbed
on top of her and put his penis in her vagina.
She went to Children’s Hospital where she was checked out and gave an
interview. Samples were taken from the defendant and the victim, and the DNA
in fact in this case came back that it would be 1 in 381 time[s] 10 to the 15th
power among the Negroid population that it is not Ron Suber, which I believe is
one of the biggest numbers and strongest matches we’ve ever had in Allegheny
County.
ECF No. 7 at 9 (quoting state court record, Guilty Plea Transcript at 5 to 6).
2
After challenging his plea in the state courts, Petitioner came to federal court. Petitioner
filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the “Petition”) pursuant
to 28 U.S.C. § 2254. In the Petition, Petitioner raised three claims. Only the second claim is at
issue in this Motion. The second claim (“Claim B”) was:1
Ground B. Petitioner was convicted on the basis of a guilty plea that was
the product of ineffective assistance of counsel. This violated Petitioner’s right to
due process of law, as guaranteed by the Fifth Amendment to the U.S.
Constitution. . . .
Supporting Facts: No counsel met with Petitioner for any sufficient length
of time to determine the validity of the victim’s complaints. Petitioner’s plea was
the result of his reliance upon counsel’s assurances that the sentences would be
run on a concurrent basis.
ECF No. 3 at 8. On February 10, 2011, Judge Cathy Bissoon denied the Petition.2 In rejecting
Claim B, Judge Bissoon found that Petitioner failed to carry his burden under the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) (“AEDPA”), to
1
The other two issues were:
Ground A. The State unreasonably delayed in bringing Petitioner to trial.
This violated Petitioner’s right to due process of law, as guaranteed by the Fifth
Amendment to the U.S. Constitution.
Supporting Facts: Petitioner was arrested on 11/18/01 and charged with
rape and Involuntary Deviate Sexual Intercourse. Preliminary hearing was held
on 12/12/01. Guilty plea was entered on 7/6/04. 967 days expired between arrest
and guilty plea.
....
Ground C. Petitioner was given unconstitutional multiple sentences for
committing a single criminal act. This violated Petitioner’s right against cruel and
unusual punishment as guaranteed by the Eighth Amendment to the U.S.
Constitution. . . .
Supporting Facts: The rape and Involuntary Deviate Sexual Intercourse
charges should have and were promised to merge for sentencing purposes in that
they constituted a single offense thereby rendering the sentence illegal.
ECF No. 3 at 8 and 10.
2
The parties had consented to have Judge Bissoon exercise plenary jurisdiction. Judge Bissoon
(footnote continued on next page)
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show that the state court’s rejection of Claim B was unreasonable application of then-existing
United States Supreme Court precedent on ineffective assistance of counsel. Judge Bissoon also
found Petitioner failed to carry his burden under AEDPA to show that the factual findings made
by the state courts in disposing of Claim B were unreasonable. ECF No. 15 at 10 (“Petitioner
fails to convince this Court that the state courts’ adjudication of this claim was contrary to or an
unreasonable application of then-existing Supreme Court precedent. Nor has he shown that the
state courts’ determination of the facts was unreasonable.”).
Judge Bissoon further noted the
following:
in light of the DNA evidence that provided overwhelming evidence of Petitioner’s
guilt of the sexual assault of the victim, and his confession to Hoffman [i.e.,
Petitioner’s plea counsel], Hoffman’s advice to Petitioner to plead guilty cannot
be deemed to have been ineffective assistance.9
____________
9
In this regard, we note that apparently, Petitioner was offered a plea agreement
from the Commonwealth for a 6 to 12 year sentence and his counsel advised that
he take the agreement. Petitioner rejected that and thought if he pled generally, he
would get a better sentence from the sentencing judge. See SCR, PCRA Hearing
Transcript, 6/21-22/2005, at 66 to 68. Petitioner was wrong.
ECF No. 15 at 10.
Petitioner also contended that his plea counsel was ineffective for assuring Petitioner that
his multiple sentences for his multiple crimes would be made to run concurrently. Judge
Bissoon rejected this contention as well. In doing so, Judge Bissoon noted that the state courts
found as a fact that Petitioner’s plea counsel made no such assurances and Judge Bissoon
concluded that Petitioner failed to carry his burden under AEDPA to rebut the presumed
correctness of this factual finding. ECF No. 15 at 10 to 11.
at that time, was a Magistrate Judge.
4
Petitioner sought a Certificate of Appealability from the United States Court of Appeals
but was denied. He also filed a petition for writ of certiorari with the United States Supreme
Court but that Court denied the petition for certiorari on or about October 3, 2011.
On January 25, 2012, the Clerk’s Office received Petitioner’s current Motion and
Memorandum in Support. At that time, this case was reassigned to the undersigned. This
Court ordered the Respondents to file a Response to the Motion. ECF No. 23. The Respondents
did so. ECF No. 24.
B.
DISCUSSION
1. True Rule 60(b) Motion versus Second or Successive Section 2254 Petition.
AEDPA barred state prisoners from bringing second or successive Section 2254 habeas
petitions in the United States District Courts without first obtaining permission from the relevant
United States Court of Appeals. 28 U.S.C. § 2244(b). Since AEDPA’s enactment, federal
Courts had been facing the difficult task of determining whether a Motion ostensibly filed
pursuant to Fed.R.Civ. P. 60(b) was truly, in law and in fact, a Rule 60(b) motion or whether it
was a second or successive Section 2254 habeas petition.
The United States Supreme Court
addressed this issue in the case of Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
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.
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
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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.
As the Respondents correctly point out “[t]he initial consideration in reviewing the
instant motion is determining whether the motion is truly a Rule 60(b) motion or in fact a veiled
attempt at a second federal habeas petition.” ECF No. 24. See United States v. Dowell, 438
F.App’x 706, 708 (10th Cir. 2011) (“We must first decide whether Dowell's motion is properly
characterized as a Rule 60(b) motion or whether it is actually a second or successive habeas
petition under 28 U.S.C. § 2255(h).”).
We find that the present Motion is in fact a second or
successive Section 2254 Petition.
Both of Judge Bissoon’s determinations on February 10, 2011 that 1) Petitioner failed to
show that the state courts’ disposition of his Claim B was contrary to or an unreasonable
application of then-existing United States Supreme Court precedent and 2) her determination that
Petitioner failed to show the state courts unreasonably found facts, constitute a “resolution of
[Petitioner’s Claim B] on the merits” within the contemplation of Gonzalez v. Crosby.
Petitioner’s Claim B is an attack on Judge Bissoon’s determination, asserting that her decision
was wrong. ECF No. 21 at 5 (“this court has wrongly decided Petitioner’s counsel’s advice to
plead guilty cannot be deemed to have been ineffective assistance”). Therefore, pursuant to
Gonzalez v. Crosby, Petitioner’s Motion is a second or successive Section 2254 Petition over
which this Court lacks subject matter jurisdiction until and unless Petitioner obtains permission
from the United States Court of Appeals for the Third Circuit to file such. Because Petitioner
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has not alleged that he obtained such permission,3 the present Motion, treated as a second or
successive Section 2254 habeas petition must be dismissed for lack of subject matter
jurisdiction.4
2. Even if the Motion Were a True Rule 60(b) Motion, it fails to Merit Relief.
In the alternative, even if the Motion could be properly construed as a true Rule 60(b)
motion, Petitioner has failed to show any extraordinary circumstances so as to justify granting
Rule 60(b) relief.
Petitioner claims entitlement to relief under Fed.R.Civ.P. 60(b)(6). ECF No. 21 at 5
(Petitioner argues in the Motion that his Motion “warrant[s] relief pursuant to Rule 60(b)(6)”).
Even if Petitioner did not explicitly invoke subsection 6, we would find subsection 6 to be the
only applicable subsection as the other options do not apply.5
3
Goins v. Beard, No. Civ.A. 09-1484, 2010 WL 545891, at *5 (W.D.Pa., Feb. 9, 2010) (“it is
Petitioner's burden to show that he sought and received permission from the Court of Appeals to
file a second or successive Section 2254 habeas petition in this Court, and he has failed to carry
that burden and this is sufficient to recommend dismissal of the instant petition for lack of
subject matter jurisdiction”) (footnote omitted).
4
Berry v. Klem, 86 F.App’x 516, 517 (3d Cir. 2004) (“Section 2244(b) is effectively ‘an
allocation of subject-matter jurisdiction to the court of appeals.’ Thus, ‘[w]hen a second or
successive habeas petition is erroneously filed in a district court without the permission of a
court of appeals, the district court's only option is to dismiss the petition or transfer it to the court
of appeals pursuant to 28 U.S.C. § 1631.’”) (citations omitted).
5
Fed.R.Civ.P. 60(b) provides that
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(footnote continued on next page)
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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).
The only argument Petitioner makes is that a decision of the Pennsylvania Superior Court
in Commonwealth v. Garcia, 23 A.3d 1059 (Pa.Super. 2011), which construed Padilla v.
Kentucky, 130 S.Ct. 1473 (2010) somehow rendered Judge Bissoon’s prior denial of Petitioner’s
habeas petition incorrect. ECF No. 21 at 5 (asserting that Judge Bissoon’s denial of Petitioner’s
Claim B was “wrongly decided”). This mere alleged legal error is not sufficient as the United
States Court of Appeals has explained: “[t]he standards for deciding a Rule 60(b)(6) motion are
well settled and familiar. ‘[L]egal error does not by itself warrant the application of Rule 60(b).
.... Since legal error can usually be corrected on appeal, that factor without more does not justify
the granting of relief under Rule 60(b)(6).’” Pridgen v. Shannon, 380 F.3d 721, 728 (3d Cir.
2004).
We find that at most Petitioner alleged legal error on the part of Judge Bissoon in
rejecting his Claim B. This is insufficient.
Moreover, we find that Petitioner fails to even sustain his burden to show that Judge
Bisssoon committed any error. The cases that Petitioner cites, namely, Garcia and Padilla, have
little or nothing to do with Petitioner’s Claim B. In Padilla, the United States Supreme Court
held that the failure of a criminal defense attorney to warn his client about possible immigration
consequences to the client’s pleading guilty could constitute ineffective assistance under the
Sixth Amendment. In Garcia, the appellant therein (the “Appellant”) was a foreign citizen
(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
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although he was a legal permanent resident of the United States. The Appellant pleaded guilty
to a crime and was not told by the criminal defense attorney of any possible immigration
consequences to his plea. As a consequence of the plea, the United States initiated removal
procedures against Appellant. The Appellant sought to have his conviction vacated by filing a
PCRA petition in the Pennsylvania state courts arguing that he received ineffective assistance of
plea counsel and invoking the holding of Padilla. The PCRA Court dismissed the PCRA pettion
as untimely filed.
The Appellant appealed and apparently argued an exception to the PCRA
statute of limitations, contending that Padilla, was a new rule of constitutional law made
retroactive by the United States Supreme Court. If Padilla had in fact recognized a new rule of
constitutional law and made such rule retroactive, then Appellant’s PCRA petition would fall
into the exception to the PCRA statute of limitations.
In rejecting the Appellant’s argument, the Pennsylvania Superior Court merely held that
Padilla did not recognize a new constitutional right. Garcia, 23 A.3d at 1064 (“We conclude that
the United States Supreme Court’s Opinion in Padilla, did not recognize a new ‘constitutional
right’ as envisioned by our legislature in enacting” the exception to the PCRA statute of
limitations). We fail to see the relevance of either case to Petitioner’s case and he fails to
enlighten us as to their relevance. The mere citation of such cases utterly fails to establish that
Judge Bissoon made any error, yet alone a legal error in rejecting Petitioner’s Claim B.
Accordingly because we find that Petitioner has failed to establish extraordinary circumstances,
the Motion will be denied.
C. CERTIFICATE OF APPEALABILITY
To the extent that one is needed, given that we find the Motion to constitute a second or
successive Section 2254 petition, a certificate of appealability should be denied because
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reasonable jurists would not find debatable that the Motion is truly a second or successive
Section 2254 petition.
ORDER
Hence, the following Order is entered:
AND NOW, this 10th day of September 2012, the Motion, treated as a second or
successive Section 2254 petition, is hereby DISMISSED for lack of subject matter jurisdiction.
In the alternative, the Motion treated as a true Rule 60(b)(6) motion is hereby DENIED because
Petitioner failed to establish extraordinary circumstances so as to justify relief under
Fed.R.Civ.P. 60(b)(6).
BY THE COURT:
s/Maureen P. Kelly
Maureen P. Kelly
United States Magistrate Judge
cc:
RONALD LEE SUBER
FY-9693
SCI Mahanoy
301 Morea Road
Frackville, PA 17932
Counsel of Record via CM-ECF
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