FITZGERALD v. KLOPOTOSKI et al
Filing
41
ORDER denying 40 Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b). It is further ordered that a certificate of appealability is denied. Signed by Magistrate Judge Lisa Pupo Lenihan on November 8, 2012. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALLEN O’NEIL FITZGERALD,
a/k/a ALLEN O’NEIL BALTIMORE,
Petitioner,
v.
SUPERINTENDENT MICHAEL
KLOPOTOSKI, et al.,
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Civil Action No. 09 - 1379
Chief Magistrate Judge Lisa Pupo Lenihan
ECF No. 40
Respondents.
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) filed on November 6, 2012. (ECF No. 40.) For the
reasons explained herein, Petitioner’s motion will be denied.
I.
BACKGROUND
On October 10, 2002, Petitioner was found guilty of robbery, receiving stolen property
and conspiracy, and he was later sentenced to an aggregate term of incarceration from twentyfive (25) to fifty (50) years for his convictions. The Superior Court of Pennsylvania affirmed
Petitioner’s judgment of sentence on June 21, 2005, and the Supreme Court of Pennsylvania
denied his petition for allowance of appeal on June 6. 2006. Petitioner’s petition for certiorari
with the United States Supreme Court was denied on January 8, 2007.
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On March 29, 2007, Petitioner filed a petition pursuant to the Pennsylvania Post
Conviction Relief Act (“PCRA”), which was later dismissed by the trial court on February 21,
2008. The Superior Court of Pennsylvania affirmed on December 30, 2008, and the Supreme
Court of Pennsylvania denied his petition for allowance of appeal on August 20, 2009.
Petitioner filed a petition for writ of habeas corpus in this Court on October 14, 2009, and
later filed an amended petition on March 5, 2010. This Court entered an order on September 9,
2010, denying Petitioner’s habeas petition and denying a certificate of appealability. Petitioner
appealed, and the Third Circuit Court of Appeals denied his request for a certificate of
appealability on January 4, 2011.
Now pending before the Court is a Rule 60(b) motion. In the motion, Petitioner appears
to assert that the state court improperly denied his 2012 successive PCRA or state habeas petition
on the basis that his claims were procedurally defaulted. Apparently he appealed the state
court’s ruling but voluntarily withdrew his appeal in order to file the instant Rule 60(b) motion in
this Court. Although unclear, he seems to argue that the United States Supreme Court’s recent
decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), provides a proper ground for this Court to
reopen his federal habeas proceeding and consider his claims, which the state court found to be
procedurally defaulted.
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 from 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).
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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.
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.
Upon review, it appears that Petitioner is seeking permission to bring new claims before
this Court – specifically, the claims that were rejected by the state court in either his state habeas
or successive PCRA petition. To the extent Petitioner seeks to do so his motion will be denied as
an unauthorized second or successive petition for habeas relief. Petitioner must first file an
application to the Third Circuit Court of Appeals and be granted permission to file a second or
successive petition pursuant to 28 U.S.C. § 2244(b). Nevertheless, even assuming Petitioner’s
motion was properly brought pursuant to Rule 60(b), it would be denied for the reasons that
follow.
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B. Extraordinary Circumstances
The Supreme Court has required a showing of “extraordinary circumstances” to justify
the reopening of 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
“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
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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 held along with the Fifth Circuit in finding that Martinez does
not present extraordinary circumstances justifying 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 the Supreme Court’s ruling in Martinez could constitute “extraordinary
circumstances” so as to warrant relief from a long-standing judgment, there is nothing in
Martinez that is applicable to Petitioner’s situation. In Martinez, the Supreme Court held that
inadequate 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. In the instant case,
Petitioner raised two claims in his federal habeas petition, one of which was an ineffective
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assistance of counsel claim. Both claims were exhausted in the state courts and they were
considered and rejected on their merits by this Court. There was no procedural default of his
claims at the state court level that prevented a resolution of his claims on the merits such that
Martinez would even be applicable.
Martinez simply does not provide a vehicle to open the judgment of this Court entered on
September 9, 2010. As such the Rule 60(b) motion will be denied. An appropriate order
follows.
AND NOW this 8th day of November, 2012,
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.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
Chief United States Magistrate Judge
cc: Allen O’Neil Fitzgerald
FF-3157
SCI Dallas
1000 Follies Road
Dallas, PA 18612
Via U.S. Postal Mail
Counsel of Record
Via ECF Electronic Mail
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