Fuller v. Cartlidge et al

Filing 36

ORDER dismissing in part and denying in part 32 Motion for Relief from Judgment. Signed by Honorable R Bryan Harwell on 2/18/2014.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Louis English Fuller, #253694,
Petitioner,
v.
Leroy Cartlidge, Warden MCCI,
Respondent.

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Civil Action No.: 0:09-cv-01352-RBH

ORDER

Now before the Court is Petitioner’s March 28, 2013 “Motion for Relief from Judgment”
filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. ECF No. 32. This Court had
previously adopted the Report and Recommendation (“R&R”) issued by United States Magistrate
Judge Paige J. Gossett, which recommended granting Respondent’s Motion for Summary Judgment
and denying Petitioner’s petition brought under 28 U.S.C. § 2254. ECF Nos. 26, 29. Petitioner did
not object to the Magistrate Judge’s R&R, and the Court found no clear error in the
recommendation. Moreover, the Court denied the issuance of a certificate of appealability to
Petitioner. Petitioner now seeks relief from the Court’s judgment, pointing to several errors in the
Magistrate Judge’s recommendation and asserting new arguments to support his § 2254 petition.1
In part, Petitioner asserts that one of his original § 2254 claims2 is not procedurally barred in light of
the Supreme Court’s recent holding in Martinez v. Ryan, 132 S. Ct. 1309 (2012). In a response,

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Because this Court adopted and incorporated the Magistrate Judge’s R&R in its entirety, the
Petitioner’s alleged errors in denying his habeas petition are solely this Court’s.
2
Petitioner alleged two habeas claims in his original § 2254 petition: (1) ineffective assistance of
trial counsel for failing to object to the trial court’s ruling precluding him from conducting an incourt demonstration (and ineffective assistance of his appellate counsel for failing to challenge the
ruling on appeal) and (2) ineffective assistance of trial counsel for failing to request a “mere
presence” charge.
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Respondent opposes Petitioner’s motion.3 After reviewing the motion and the parties’ briefs, the
Court dismisses the motion in part as a successive habeas petition and denies the motion in part.
In Petitioner’s own words, his three grounds for relief from judgment are as follows:
(1) Magistrate Gossett mischaracterized the facts of Petitioner’s case
regarding the applicable law of “mere presence;”
(2) New law, governing Procedural Default, provides basis to
challenge Procedural Bar of Habeas claim;
(3) Magistrate Gossett stretched the state court record beyond its
actual content by calling for a showing of “Prejudice” beyond
what is required.
Because Petitioner’s Rule 60(b) motion concerns this Court’s denial of his habeas petition, the
Court must assess the character of Petitioner’s grounds in order to determine whether Petitioner’s
motion in fact operates as a successive petition or “application” for habeas relief rather than a Rule
60(b) motion. A successive application must first be authorized by the Fourth Circuit. 28 U.S.C. §
2244(b)(3)(A). “[A]n ‘application’ for habeas relief is a filing that contains one or more ‘claims.’ ”
Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). “[A] ‘claim’ . . . is an asserted federal basis for
relief from a state court’s judgment of conviction.” Id. “Using Rule 60(b) to present new claims . . .
circumvents [the] requirement that a new claim be dismissed unless it relies on either a new rule of
constitutional law or newly discovered facts,” as well as “the requirement that a successive habeas
petition be precertified by the court of appeals.” Id. at 531–32.
In Gonzalez, the Supreme Court held that a Rule 60(b) motion can “be said to bring a
‘claim’ if it attacks the federal court’s previous resolution of a claim on the merits.” Id. at 532. The
Court reasoned that “alleging that the court erred in denying habeas relief on the merits is
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The Court must note that Petitioner sent it a letter indicating that he did not receive any notice
pursuant to Roseboro v. Garrison, 523 F.3d 309 (4th Cir. 1975), regarding the consequences of
failing to respond to Respondent’s response. Petitioner is reminded that he filed the motion now
before the Court and Roseboro is not applicable.
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effectively indistinguishable from alleging that the movant is, under the substantive provisions of
the statutes, entitled to habeas relief.” Id. Here, Petitioner, in his first Rule 60(b) ground for relief
from judgment, argues that the Court erred in rejecting his “mere presence charge” claim. That
claim was decided on the merits by the Magistrate Judge and this Court. Accordingly, Petitioner’s
first ground for relief from judgment must be construed as a successive claim for habeas relief and
must be dismissed.
Petitioner’s second and third Rule 60(b) grounds for relief from judgment present a
somewhat different situation. His second ground relates to the Court’s finding that his “in-court
demonstration” claim for habeas relief was procedurally barred. Despite the Court’s finding of
procedural default, it alternatively proceeded to the merits of the claim and found habeas relief
should also be denied on the merits. Thus, in his second Rule 60(b) ground for relief from
judgment, Petitioner asserts that the recent Martinez decision provides a basis to reconsider his “incourt demonstration” claim for habeas relief. He raises his third ground in an effort to challenge, as
erroneous, the Court’s alternative ruling on the merits of his the “in-court demonstration” claim.4
Specific to his second Rule 60(b) ground for relief from judgment, Petitioner argues, in
essence, that his counsel in his state post-conviction relief (“PCR”) hearing was ineffective for
failing to raise properly a claim of ineffective assistance of his appellate counsel. Petitioner raised
the issue of the effectiveness of his appellate counsel in his initial petition, and this Court, as noted
above, found the claim procedurally barred. Subsequently, the Supreme Court held in Martinez that
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Assuming, for the sake of argument, that Petitioner can show extraordinary circumstances for this
Court to reconsider its procedural default ruling, he cannot get around that fact that his third Rule
60(b) ground, like his first, challenges the Court’s ruling on the merits as erroneous. As such, his
third ground presents a successive claim in light of Gonzalez and should be dismissed for the same
reasons the Court dismisses his first Rule 60(b) ground. The bottom line is that any argument that
this Court erred and should reconsider the merits of either of Petitioner’s original § 2254 claims
presents a successive claim that must be authorized by the Fourth Circuit. See Gonzalez, 545 U.S.
532.
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a finding that PCR counsel was ineffective for failing to assert a claim would preclude a finding of
procedural default of that claim. Martinez, 132 S. Ct. at 1320. Therefore, the Court must determine
whether Petitioner’s assertion of Martinez must be viewed as a successive claim or analyzed under
Rule 60(b). In light of Gonzalez, the Court finds that Petitioner’s argument does not present a
successive claim as Martinez is not a substantive basis for habeas relief. For the purposes of this
Court’s analysis, the Court notes its previous finding of procedural default, which was not appealed
by Petitioner, is the law of the case.

Accordingly, the merits of Petitioner’s “in-court

demonstration” claim, although they were addressed alternatively in the order denying his habeas
petition, need not be considered for the purposes of the Court’s analysis. See Gonzalez, 545 U.S. at
538 (“A motion that . . . challenges only the District Court’s failure to reach the merits does not
warrant such treatment, and can therefore be ruled upon by the District Court without
precertification by the Court of Appeals pursuant to § 2244(b)(3).”).
In raising Martinez, Petitioner only seeks relief pursuant to Rule 60(b)(6) for the Federal
Rules of Civil Procedure. Relief under Rule 60(b)(6), which has been described as a catch-all
provision, “is warranted only upon a showing of extraordinary circumstances that create a
substantial danger that the underlying judgment was unjust.” Wojcicki v. Aiken Tech. Coll., No.
1:06-cv-00461-MBS, 2012 WL 3596161, at *2 (D.S.C. Aug. 12, 2012) (citing Margoles v. Johns,
798 F.2d 1069, 1073 (7th Cir. 1986) (per curiam)). In addition to a showing of extraordinary
circumstances, a party “must make a showing of timeliness, a meritorious defense, [and] a lack of
unfair prejudice to the opposing party.” Werner v. Carbo, 731 F.2d 204, 206–07 (4th Cir. 1984)
(footnote omitted).
Here, the Court finds no basis to reconsider its rejection—as procedurally barred—of
Petitioner’s heabeas claim that the ineffective assistance of his appellate counsel in challenging the

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trial court’s ruling on his in-court demonstration entitles him to relief. The decision in Martinez
does not give rise to the extraordinary circumstances that would justify relief from judgment under
Rule 60(b)(6).

To that end, the Supreme Court’s decision in Gonzalez provides guidance. That

decision, in the context of Martinez, was squarely addressed and summarized in a recent decision of
the Eleventh Circuit as follows:
The Supreme Court examined what effect its recent decision in Artuz
v. Bennett, 531 U.S. 4 (2000), had on Gonzalez’s Rule 60(b)(6)
motion. Gonzalez, 545 U.S. at 536. Artuz concluded that a state postconviction petition could be properly filed so as to toll [the
Antiterrorism and Effective Death Penalty Act’s (“AEDPA”)]
limitations period even when all of the claims had been procedurally
defaulted. 531 U.S. at 8–9. For the purposes of its Rule 60(b)(6)
analysis, the Gonzalez Court assumed that Artuz was a change in
decisional law that revealed error in the district court’s dismissal of
Gonzalez’s § 2254 petition as time-barred. Gonzalez, 545 U.S. at 536.
Nevertheless, the Supreme Court in Gonzalez held that a change in
decisional law—Artuz’s changing the interpretation of AEDPA’s
statute of limitations for a § 2254 petition—did not create an
“extraordinary circumstance” under Rule 60(b)(6). Id. The Supreme
Court stated that (1) the district court’s judgment was correct when it
was decided and (2) it was “hardly extraordinary” that “after
[Gonzalez’s] case was no longer pending, this Court arrived at a
different interpretation” of AEDPA’s statute of limitations. Id. The
Supreme Court held that the district court correctly denied relief
under Rule 60(b)(6). Id. at 536, 538. Gonzalez admonished that
extraordinary circumstances warranting the reopening of a judgment
“will rarely occur in the habeas context.” Id. at 535.
Arthur v. Thomas, 739 F.3d 611, 632 (11th Cir. 2014). In light of Gonzalez, the Eleventh Circuit
ultimately held that “the change in decisional law created by the Martinez rule does not constitute
an ‘extraordinary circumstance’ ” sufficient to invoke Rule 60(b)(6). Id. at 633. As the Fourth
Circuit has not yet ruled specifically on the issue, this Court is persuaded by the Eleventh Circuit’s
decision in Arthur. Accordingly, Petitioner has failed to make the necessary showing under Rule
60(b)(6), and his motion must be denied. Moreover, as the Court’s procedural default ruling

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remains the law of the case, the Court need not reach Petitioner’s third Rule 60(b) ground for relief
from judgment, although, as noted in footnote four, the Court would lack jurisdiction over the
successive habeas claim regardless.
CERTIFICATE OF APPEALABILITY
A certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court’s
assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional
right. Slack, 529 U.S. at 484–85. In the instant matter, the Court concludes that Petitioner has failed
to make the requisite showing of “the denial of a constitutional right.”
CONCLUSION
IT IS THEREFORE ORDERED that Petitioner’s “Motion for Relief from Judgment”
(ECF No. 32) is DISMISSED IN PART and DENIED IN PART.

The filing shall be

DISMISSED to the extent Petitioner raises successive claims for habeas relief (ground one and,
alternatively, ground three). It shall be DENIED to the extent the grounds are cognizable in a Rule
60(b) motion (ground two).
IT IS FURTHER ORDERED that a certificate of appealability is DENIED because the
Petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).

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IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
February 18, 2014

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