Simmons v. Johnson
Filing
29
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 03/06/2020. Copy mailed to Petitioner. (tjoh, )
L
11
N
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. DISTRICT COURT
Richmond Division
RICHMOND. VA
EMANUEL C.SIMMONS,
Petitioner,
Civil Action No.3:09CV406
V.
GENE JOHNSON,
Respondent.
MEMORANDUM OPINION
Emanuel C. Simmons, a Virginia prisoner proceeding pro se, filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. In his § 2254 Petition, Simmons raised the following
grounds for relief:
Claim One
Counsel was ineffective for failing to argue to the court during the
preliminary hearing that the in-court identification of the Petitioner
by Jack Groder was inherently incredible and thereby inadmissible;
and, because Groder failed to give a description prior to trial and did
not select the Petitioner from a photo line-up.
Claim Two
Counsel was ineffective for failing to file a motion to suppress the
in-court identification of the Petitioner by Jack Groder because
Groder failed to give a description prior to trial and did not select
the Petitioner from a photo line-up.
Simmons v. Johnson, No. 3:09CV406,2010 WL 883826,at *1 (E.D. Va. Mar. 11,2010),affd396
F. App'x 963, 964 (4th Cir. 2010). By Memorandum Opinion and Order entered on March 11,
2010, the Court dismissed Petitioner's claims as lacking in merit. {Id. at *2-5.) The matter is
before the Court on Simmons's Motion for Relief Under Rule 60(b)(6)("Rule 60(b)Motion,"ECF
No. 28.) For the reasons set forth below,the Rule 60(b) Motion will be DENIED.
I.
RULE 60(b)
Federal Rule of Civil Procedure 60(b) allows a court to "relieve a party ... from a final
judgment, order, or proceeding." Fed, R. Civ. P. 60(b). It is an extraordinary remedy requiring a
showing of exceptional circumstances. Mayfield v. Nat'I Ass'nfor Stock Car Auto Racing, Inc.,
674 F.3d 369, 378 (4th Cir. 2012) (citing Ackermann v. United States, 340 U.S. 193, 202
(1950)). The party seeking relief under Rule 60(b)"must make a threshold showing oftimeliness,
'a meritorious claim or defense,' and lack of unfair prejudice to the opposing party." Coleman v.
Jabe, 633 F. App'x. 119, 120 (4th Cir. 2016){c^\xoi\n% Aikens v. Ingram, 652 F.3d 496, 501 (4th
Cir. 2011)). A party must also demonstrate "exceptional circumstances." Dowell v. State Farm
Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993)(quoting Werner v. Carbo, 731 F.2d
204, 207 (4th Cir. 1984)). After a party satisfies this threshold showing,"he [or she] then must
satisfy one ofthe six specific sections of Rule 60(b)." Id. (quoting Werner, 731 F.2d at 207).
Simmons relies on Rule 60(b)(6)to bring this motion. (Rule 60(b) Mot. T15.) Federal Rule
ofCivil Procedure 60(b)(6)permits a court to grant relieffor"any other reason thatjustifies relief."
Fed. R. Civ. P. 60(b)(6).
Rule 60(b)(6) requires that the movant "show 'extraordinary
circumstances' justifying the reopening of a final judgment." Shanklin v. Seals, No. 3:07cv319,
2011 WL 2470119, at *2(E.D. Va. June 21, 2011)(quoting Gonzalez v. Crosby, 545 U.S. 524,
535 (2005)). As pertinent here, courts have held that "[ijntervening developments in the law by
themselves rarely constitute the extraordinary circumstances required for relief under Rule
6Q(b){6).'" Agostini v. Felton, 521 U.S. 203,239(1997).
II.
ANALYSIS
Here,the thrust ofSimmons's argument is that the Court erred when it deferred to the state
habeas court's findings in determining that his ineffective assistance of counsel claims lacked
merit. Simmons vaguely suggests that the dismissal of his claims was incorrect in light of the
decision in Martinez v. Ryan,566 U.S. 1 (2012). (Rule 60(b)Mot.^|7-14.) Simmons also argues
that the Court should have afforded him an evidentiary hearing prior to dismissing his claims. (Id.
n 18-26.)
As a preliminary matter, Simmons's challenge under Martinez makes little sense. "The
decision in Martinez 'relates to excusing a procedural default ofineffective-trial-counsel claims in
an initial § 2254 petition...
Ward v. Clarke, No. 3:14CV11-HEH,2014 WL 5795691, at *3
(E.D. Va. Nov. 6,2014)(quoting Lambrix v. Sec'y, Fla. Dep't Corr., 756 F.3d 1246, 1260(11th
Cir. 2014)). Simmons's claims were not found to be procedurally defaulted. Thus, it is unclear
why Simmons believes Martinez undermines the dismissal of his ineffective assistance ofcounsel
claims on the merits. These are are ostensibly outside ofthe reach of Martinez, Nevertheless, no
need exists to ascertain Simmons's exact theories for relief because, as explained below, his Rule
60(b) Motion is untimely no matter the claim, and the decision in Martinez fails to constitute an
extraordinary circumstance within the parameters of Rule 60(b)(6).
Under Federal Rule of Civil Procedure 60(c)(1), Simmons was required to file his motion
within a reasonable time after the entry of the March 10, 2010 Memorandum Opinion and Order.
Fed. R. Civ. P. 60(c)(1)("A motion under Rule 60(b) must be made within a reasonable time-and
for reasons(1),(2), and(3)no more than a year after the entry ofthejudgment or order or the date
of the proceeding."). Simmons's Rule 60(b) Motion, filed over nine years after the entry of the
challenged judgment, was not filed in a reasonable time. See McLawhorn v. John W. Daniel &
Co., Inc.,924 F.2d 535,538(4th Cir. 1991)
("We have held on several occasions that a Rule 60(b)
motion is not timely brought when it is made three to four months after the original judgment and
no valid reason is given for the delay."(citing Cent. Operating Co. v. Utility Workers ofAm.,491
F.2d 245 (4th Cir. 1974); Consol Masonry & Fireproofing, Inc. v. Wagman Constr. Corp.., 383
F.2d 249 (4th Cir. 1967))). Moreover, the United States Court of Appeals for the Fourth Circuit
has concluded that the decision in Martinez is not an extraordinary circumstance warranting relief
under Rule 60(b)(6). Moses v. Joyner, 815 F.3d 163, 168 (4th Cir. 2016) (concluding that
petitioner's "motion for relief invoking the change in procedural default rules occasioned by
Martinez falls well short of'extraordinary'").
Lastly, Simmons asserts that Buck v. Davis, 137 S. Ct. 759 (2017), allows this Court to
review the amount of deference this Court should have accorded the state habeas court's
determination of his claims. (Rule 60(b) Mot.
8, 11, 27.) The United States Court of Appeals
for the Eighth Circuit aptly summarized Buck as follows:
In that case. Buck sought federal habeas relief under 28 U.S.C. § 2254, contending
that his trial counsel's introduction of expert testimony reflecting the view that his
race predisposed him to violent conduct violated his Sixth Amendment right to
counsel. His claim, however, was procedurally defaulted under Coleman v.
Thompson,501 U.S. 722,111 S. Ct. 2546,115 L.Ed.2d 640(1991). Thereafter,the
Supreme Court issued Martinez .... modifying the Coleman rule. Following
[Martinez], Buck sought to reopen his § 2254 case under Rule 60(b). The district
court denied his motion. The Supreme Court, however, concluded that the district
court abused its discretion in denying the motion because "extraordinary
circumstances" existed. First, "Buck may have been sentenced to death in part
because of his race." Id. at 778. Second, Buck's underlying ineffective-assistance
claim was race-based and "injure[d] not just the defendant, but 'the law as an
institution,...the community at large, and... the democratic ideal reflected in the
processes of our courts.'" Id. (quoting Rose v. Mitchell, 443 U.S. 545, 556, 99 S.
Ct. 2993, 61 L.Ed.2d 739 (1979)). Third, the case's extraordinary nature was
confirmed by the State's refusal to confess error in Buck's case, despite admitting
error in similar cases. Id.
Davis V. Kelley, 855 F.3d 833,835-36(8th Cir. 2017)(second alteration in original).
Like the petitioner in Davis, Simmons "has failed to present extraordinary circumstances
mirroring those demonstrated in Buck.'' Id. at 836. '^Buck focused on the race-based nature ofthe
case and its far reaching impact on the community by the prospect of a defendant having been
4
sentenced to death because ofhis race. These extraordinary facts have no application to the present
case." Id. Accordingly, Simmons's Rule 60(b) Motion (ECF No. 28) will be DENIED. A
certificate of appealability will be DENIED.
An appropriate Order will accompany this Memorandum Opinion.
John A. Gibney,
Date:
Richmond, Virginia
hstnct Judge.
United States Dis
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?