Teleguz v. Pearson
OPINION and ORDER denying 337 Motion for Relief from Judgment under FRCP 60(b). Signed by Judge James P. Jones on 08/31/2016. (ab)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DAVID ZOOK, WARDEN,
SUSSEX I STATE PRISON,
Case No. 7:10CV00254
OPINION AND ORDER
By: James P. Jones
United States District Judge
William P.J. Kimmitt, Michael F. Williams, and K. Winn Allen, Kirkland &
Ellis LLP, Washington, D.C., for Petitioner; Alice T. Armstrong, Senior Assistant
Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia,
In this capital habeas case, the petitioner has filed a Motion for Relief from
Judgment under Federal Rule of Civil Procedure 60(b) based on the Supreme
Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), issued while his
federal habeas proceedings were pending. He contends that the change in law
effected by Martinez, combined with his death sentence and the fact that four of his
procedurally defaulted ineffective assistance of trial counsel claims have never
been reviewed on the merits, constitute extraordinary circumstances sufficient to
justify reopening his habeas proceedings to consider those four defaulted claims. I
find that the petitioner’s Rule 60(b)(6) motion is untimely and that he has failed to
demonstrate extraordinary circumstances warranting relief from judgment.
Therefore, I will deny the motion.
The court of appeals recently gave the following summary of the facts and
proceedings of this case:
In 2001, Stephanie Sipe was found murdered in the
Harrisonburg, Virginia apartment she shared with her infant son.
While Teleguz, Sipe’s ex-boyfriend and her son’s father, had been a
suspect, the investigation had stalled until Aleksey Safanov,[ ]
imprisoned in Massachusetts on federal charges, provided a tip to
United States Marshal Michael Nelson that “he knew of a Russian
male that had his wife killed. He said that a Russian male hired a
black male from Pennsylvania, Lancaster, Pennsylvania to kill his
wife.” J.A. 2828. Safanov’s tips led to Edwin Gilkes, and U.S.
Marshal Nelson passed the information on to the Harrisonburg Police
Department. Ultimately, the investigation resulted in, among other
things, a capital murder for hire case against Teleguz.
In February 2006, a jury convicted Teleguz of murder for hire.
Teleguz v. Pearson, 689 F.3d 322, 325 (4th Cir. 2012). Michael
Hetrick, who had actually committed the killing, testified at trial that
Teleguz had paid him two thousand dollars to slit Sipe’s throat.
Hetrick’s murder-for-hire allegations were corroborated by both
Gilkes and Safanov. Gilkes testified that he had been present at a
birthday party where Teleguz hired Hetrick to commit the murder.
Gilkes also testified that he accompanied Hetrick to Sipe’s apartment
and waited outside for Hetrick during the murder. Gilkes further
claimed that he was afraid of Teleguz because he had heard rumors
that Teleguz was a member of the Russian mafia.
Safanov testified at Teleguz’s trial that Teleguz attempted to
hire him to murder Sipe to avoid paying child support. Safanov also
testified that Teleguz had spoken to him about the murder after it had
occurred, complaining that the man he had hired to kill Sipe had left
blood at the scene and offering Safanov money to “eliminate” the
killer. Teleguz, 689 F.3d at 326.
In February 2006, a Virginia jury recommended that Teleguz be
sentenced to death upon finding two statutory aggravating factors:
vileness and future dangerousness. The Supreme Court of Virginia
affirmed Teleguz’s conviction and sentence.
Commonwealth, 273 Va. 458, 643 S.E.2d 708 (2007). Teleguz
proceeded to file a petition for writ of habeas corpus in state court,
which the Supreme Court of Virginia dismissed. Teleguz v. Warden
of Sussex I State Prison, 279 Va. 1, 688 S.E.2d 865 (2010).
Teleguz then turned to the federal courts, filing a petition for
writ of habeas corpus in the United States District Court for the
Western District of Virginia in November 2010. Some of Teleguz’s
claims had been adjudicated on the merits in state court while others
had been procedurally defaulted. Teleguz, 689 F.3d at 326. Teleguz
argued that his defaulted claims should nevertheless be considered,
primarily because he had new, reliable evidence that he was actually
innocent (“Gateway Innocence Claim”).
In support of his Gateway Innocence Claim, Teleguz offered
what we previously described as three categories of evidence. First,
Teleguz presented affidavits of witnesses who indicated that they had
not seen him at the birthday party during which he was alleged to
have hired Hetrick to kill Sipe. Second, he presented evidence to
establish that a murder in Ephrata, Pennsylvania alluded to during his
trial never occurred. Third, and most importantly, Teleguz presented
affidavits in which Gilkes and Safanov recanted testimony they
offered at Teleguz’s trial.
Gilkes claimed that he had been coerced into testifying against
Teleguz by the prosecutor, who “made clear that if [he] did not, [he]
would have been the one on death row today, not Teleguz.” J.A.
3546. Gilkes executed affidavits in both 2008 and 2010 disavowing
aspects of his trial testimony.
Similarly, Safanov, who had left the United States for
Kazakhstan and Kyrgyzstan, ostensibly submitted an affidavit.
According to that affidavit, as well as affidavits submitted by
Teleguz’s defense team, which had been in contact with someone
claiming to be Safanov, Safanov asserted that he had never discussed
Sipe’s murder with Teleguz and agreed to testify falsely during
Teleguz’s trial because both the prosecutor pursuing Teleguz and a
United States marshal told him that if he cooperated, he would be
eligible for perks including an S visa allowing him to remain in the
United States despite pending gun charges.
In August 2011, the district court denied Teleguz habeas relief
without holding a hearing. Teleguz v. Kelly, 824 F.Supp.2d 672
(W.D. Va. 2011). Teleguz appealed, arguing that he was “entitled to
an evidentiary hearing to demonstrate a miscarriage of justice.”
Petitioner’s Br. at ii. This Court vacated and remanded for a rigorous
Gateway Innocence Claim analysis, strongly suggesting that an
evidentiary hearing may be warranted to assess the credibility of the
recanting witnesses. Teleguz, 689 F.3d 322.
On remand in district court, Teleguz changed his tune, “arguing
that an evidentiary hearing [was] unnecessary” and that the district
court should decide his Gateway Innocence Claim “on the cold
record.” Teleguz v. Pearson, No. 7:10CV00254, 2012 WL 6151984,
at *2 (W.D.Va. Dec. 11, 2012). “In light of th[is Court’s]
instructions,” however, the district court found that an evidentiary
hearing was “necessary.” Id. at *3. Accordingly, it held a several-day
evidentiary hearing in November 2013.
At the hearing, Gilkes appeared but refused to testify. And
Safanov did not appear, even by deposition or phone. In other words,
neither of the recanters testified in support of their recantations.
Meanwhile, Hetrick appeared and testified in detail and consistent
with his trial testimony, i.e., that Teleguz had hired him to kill Sipe.
Prosecutor Marsha Garst, whom Gilkes and Safanov accused of
threatening them into testifying against Teleguz, appeared and
testified that those accusations were false. And U.S. Marshal Nelson
testified that Safanov’s accusation that Nelson had told Safanov he
could benefit from an S visa for assisting the government was also
conclude that more
July 2014, the district court again denied
The district court held that it “c[ould] not
likely than not, given the overall, newly
no reasonable juror would have found Teleguz
guilty beyond a reasonable doubt. As such, the petitioner has not
made a threshold showing of actual innocence to permit review of his
procedurally-defaulted claims.” Teleguz v. Davis, No. 7:10CV00254,
2014 WL 3548982, at *20 (W.D.Va. July 17, 2014) (quotation marks
and citation omitted). The district court also rejected Teleguz’s claim
that he had made a sufficient showing that his [state] habeas attorneys
had been deficient in failing to pursue the Ephrata, Pennsylvania
murder issue (“Martinez Claim”).
Teleguz v. Zook, 806 F.3d 803, 805–07 (4th Cir. 2015). On November 30, 2015,
the court of appeals affirmed my second denial of Teleguz’s petition. Id. at 818.
The Supreme Court issued the Martinez decision on March 20, 2012, after
my initial denial of Teleguz’s petition but before the court of appeals remanded the
case for a more rigorous analysis of the Gateway Innocence Claim. In Martinez,
the Court 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.” 132 S. Ct. at 1315. In other words, a federal habeas
petitioner may be able to overcome a procedural default of a claim of ineffective
assistance of trial counsel if his state habeas counsel was ineffective in failing to
raise trial counsel’s ineffectiveness as an issue in the initial state habeas
The Martinez exception to the general rule of procedural default is, however,
a narrow one. In this case, in order to establish cause for his default under
Martinez, Teleguz must show that (1) his state habeas counsel was ineffective
under the standards of Strickland v. Washington, 466 U.S. 668 (1984), for failing
to raise the defaulted issues in the initial habeas proceeding, and (2) the underlying
trial ineffectiveness claim is substantial, meaning that it has merit. 132 S. Ct. at
1318. To establish ineffectiveness under Strickland, Teleguz must show that (1)
“counsel’s representation fell below an objective standard of reasonableness,”
considering circumstances and facts known to counsel at the time of the
representation, and (2) but for counsel’s errors, there is a reasonable probability
that the outcome of the case would have been different. 466 U.S. at 687-88, 69495.
In my initial denial of Teleguz’s federal habeas petition, I held that the
following five ineffective assistance of trial counsel claims had been procedurally
1. Ephrata murder testimony:
Teleguz argues that his trial counsel failed to effectively rebut
statements tying him to an alleged murder in Ephrata, Pennsylvania.
Prior to trial, Teleguz’s counsel filed a motion in limine to bar
references to this alleged murder. The court excluded evidence of the
alleged murder during the guilt phase, but allowed it during the
penalty phase. However, defense counsel asked Gilkes during the
guilt phase about the alleged murder, but Gilkes denied remembering
telling police about the event. The prosecution then asked Gilkes
about the alleged murder, and he testified about the details. During the
penalty phase, the prosecution highlighted Gilkes’ earlier testimony.
Teleguz did not assert this claim before the Supreme Court of
Virginia. He now offers affidavits and other evidence in support of the
claim that the murder did not occur. . . . Teleguz has failed to show
cause for the default and has failed to show that the facts could not
have been previously discovered through the exercise of due
diligence. Furthermore, Teleguz has not shown a fundamental
miscarriage of justice that would excuse the default. Therefore, this
claim may not be considered on the merits.
Teleguz v. Kelly, 824 F. Supp. 2d 672, 695 (W.D. Va. 2011), vacated in part sub
nom. Teleguz v. Pearson, 689 F.3d 322 (4th Cir. 2012).
2. “Dial up a murder” references:
Teleguz argues that his counsel was ineffective for failing to
rebut the prosecution’s assertion that Teleguz could have someone
killed by a telephone call from prison. During the state’s closing
argument at the penalty phase of the trial, the prosecutor stated that
Teleguz was a future danger because “he can pick up a phone . . . and
dial up a murder because he can call another Aleksey Safanov or
another Edwin Gilkes or another Michael Hetrick.” (J.A. 3454–55.)
Defense counsel responded by saying that a phone call would be
insufficient because it would take money to hire a contract killer,
which Teleguz would not have if incarcerated. Teleguz asserts that
counsel neglected to explain telephone procedures that would apply to
Teleguz while in prison, in that inmates may only call certain preapproved individuals, and telephone calls are monitored.
During the state habeas proceedings, Teleguz raised the
argument that counsel was ineffective for failing to object to the
prosecution’s statement. The Supreme Court of Virginia rejected the
argument, maintaining that the statement outlined the facts of the case
and was not improper. [Teleguz v. Warden of Sussex I State
Prison, 688 S.E.2d 865, 875 (2010) (“Teleguz II”).] Teleguz also
argued that counsel was ineffective for failing to request that the trial
court re-open the evidence so that he could present testimony
regarding inmate phone privileges. The Supreme Court of Virginia
rejected the argument because Teleguz “fail[ed] to proffer what
evidence would have been gained from presenting testimony
regarding inmate phone privileges.” Id. at 877. Therefore, Teleguz
had not shown that counsel’s performance was deficient. Id.
To the extent that the argument presented here is the same as
those presented before the state courts, I find that the Supreme Court
of Virginia’s decision was reasonable. However, much of the
substance of this claim, relating to the failure to rebut the
prosecution’s statement, is different from that advocated during the
state habeas proceedings. Therefore, Teleguz’s rebuttal claim was not
exhausted in state court and therefore is defaulted here. Teleguz has
not asserted a cause for the default, and there is no fundamental
miscarriage of justice to excuse that default.
Teleguz v. Kelly, 824 F. Supp. 2d at 695-96.
3. Manner of death:
Teleguz argues that his trial counsel was ineffective for not
casting doubt on Hetrick’s testimony that Teleguz ordered him to cut
Sipe’s throat. Teleguz asserts that the prosecution’s portrayal of
Teleguz as a future danger and its contention that the crime met the
definition of “vile” was enhanced by this testimony. Teleguz
contends that there was unused evidence that would have shown that
Hetrick had threatened to cut another woman’s throat, had killed
someone in the past, and had described how he would kill someone by
cutting them. He also asserts that counsel should have informed the
jury that Hetrick originally stated that he cut Sipe’s throat because he
was angered when she fought back and caused the knife to cut him.
Teleguz raised a similar, but not identical, argument during the
state habeas proceedings. There, Teleguz asserted that his counsel
was ineffective for failing to secure the testimony of Kimberly Woods
and Jessica Swartz, who would have testified about threats and
comments made by Hetrick that would have undermined his claim
that Teleguz chose the manner of death.
The Supreme Court of Virginia rejected the argument that trial
counsel was ineffective, maintaining that neither the performance nor
the prejudice prong of Strickland had been met. Teleguz II, 688
S.E.2d at 878. The defense was unable to obtain Swartz’s appearance
because a Pennsylvania court determined that Swartz would have
been caused undue hardship by being compelled to travel to Virginia
and testify. Trial counsel asked for a continuance to secure Woods’
presence, but the motion was denied because the trial court
determined that her testimony would be irrelevant. Trial counsel
argued that the testimony would be relevant because Woods would
testify that Hetrick had threatened to kill Woods by cutting her throat.
The trial court held that the testimony would not show that it was
Hetrick’s idea, and not Teleguz’s, to cut Sipe’s throat. Teleguz also
asserted to the Supreme Court of Virginia that his appellate counsel
was ineffective for failing to preserve or adequately brief the issues
relating to Woods’ proffered testimony, but the argument was rejected
because Teleguz had not shown that Woods' testimony would have
been relevant. Id.
The Supreme Court of Virginia’s decision was reasonable.
Teleguz has not shown that his trial counsel was deficient in the
attempts to secure the testimony of the witnesses and has not shown
that Woods’ testimony would have been admissible if it had been
secured. To the extent Teleguz asserts new arguments, and presents
new evidence, relating to his counsel’s failure to offer other evidence
that Hetrick chose the manner of Sipe’s death, the claim is defaulted
because it was not raised in state court. Teleguz has not shown cause
and prejudice or a fundamental miscarriage of justice to excuse the
Teleguz v. Kelly, 824 F. Supp. 2d at 697–98.
4. Background and upbringing evidence at sentencing:
Teleguz claims that his trial counsel failed to adequately
investigate and present evidence of his background and character,
including the persecution he and his family faced in the Ukraine. He
asserts that his trial counsel was aware that his Pentecostal Christian
faith resulted in persecution of his family in the Ukraine of the time
and that this persecution may have exerted a negative impact on his
social and emotional functioning. Nevertheless, trial counsel failed to
fully investigate the effects of the persecution. As evidence in support
of his claim, Teleguz offers documents, including affidavits from
various family members, which were not presented in the state habeas
Although claims relating to specific kinds of mitigation
evidence from particular experts were presented to the Supreme Court
of Virginia, this more general claim about Teleguz’s upbringing,
particularly from family members, was not. The defendant has not
asserted cause for the default and has not shown a fundamental
miscarriage of justice. See Sawyer [v. Whitley], 505 U.S. [333,] 347,
112 S.Ct. 2514 [(1992)].
Teleguz v. Kelly, 824 F. Supp. 2d at 699–700.
5. Consular assistance:
Teleguz argues that his trial counsel’s failure to enlist and make
use of consular assistance amounted to ineffective assistance of
counsel. He concedes that this claim is procedurally defaulted
because he did not assert it in state court. He does not argue that the
default should be excused because of cause and prejudice. However,
he argues that the claim should be considered to avoid a fundamental
miscarriage of justice because he is actually innocent of the death
I find that Teleguz has not established by clear and convincing
evidence that, but for the alleged constitutional violation, he would
have been ineligible for the death penalty. See Sawyer, 505 U.S. at
347, 112 S.Ct. 2514. First, Teleguz posits that Ukrainian officials
could have assisted his trial counsel in discovering and developing
information about his childhood in the Ukraine. Teleguz does not
assert that the evidence that might have been uncovered could have
made him ineligible for the death penalty by negating the aggravating
factors found by the jury. Second, he suggests that the Ukrainian
consulate might have approached the proper authorities to request that
the death penalty not be imposed. This, too, fails to undermine the
aggravating factors found by the jury. Furthermore, the argument is
speculative; Teleguz cites no evidence indicating that the Ukrainian
government could have affected whether the death penalty was sought
in this case. Therefore, the default is not excused due to actual
Teleguz v. Kelly, 824 F. Supp. 2d at 700-01.
Teleguz appealed my initial denial of his federal habeas petition to the
Fourth Circuit, and while that appeal was pending, the Supreme Court issued its
decision in Martinez. Teleguz had alerted the Fourth Circuit to the Supreme
Court’s pending decision in Martinez in his opening appellate brief, succinctly
stating that he was “rais[ing] the issue to preserve it for subsequent review.” (Br.
of Appellant at 23-24 n.12, Teleguz v. Zook, No. 11-9 (4th Cir. Dec. 16, 2011),
ECF No. 15.) After the Supreme Court issued its decision in Martinez, while his
initial appeal to the Fourth Circuit was still pending, Teleguz requested that the
Fourth Circuit “instruct the district court to address in the first instance the
application of Martinez to Teleguz’s case.” (Reply Br. at 12, Teleguz v. Zook, No.
11-9, (4th Cir. April 2, 2012), ECF No. 36.) Teleguz indicated,
No additional [certificate of appealability (“COA”)] is necessary to
remand the Martinez issue. Post-conviction counsel’s ineffectiveness
as cause to excuse procedural default was included as an alternative
argument under Teleguz’s first issue. The Court granted a COA on
that issue. Accordingly, the Martinez issue is encompassed within the
existing COA grant.
(Id. at 12 n.5.) The first issue on which Teleguz had sought a COA pertained only
to ineffective assistance of trial counsel at the guilt phase of his case; that issue did
not address ineffective assistance of counsel at the penalty phase. (Pet’r’s Mem.
Regarding Certificate of Appealability 3-5, ECF No. 95.)
When the Fourth Circuit remanded the case to this court for a more thorough
consideration of the Gateway Innocence Claim, it did not instruct me to address
Nevertheless, on remand, Teleguz asked me to apply Martinez.
Specifically, in his opening post-remand brief, Teleguz contended that if I failed to
rule in his favor on the Gateway Innocence Claim, Martinez would provide “an
alternative basis to reach the merits of Teleguz’s defaulted claims.” (Pet’r’s PostRemand Br. 29-30, ECF No. 120.) Though he generally referred to all of his
defaulted claims, he addressed only one specific example of a procedural default
that could be excused under Martinez, and that was the claim related to the Ephrata
At the evidentiary hearing on the Gateway Innocence Claim, counsel for
Teleguz indicated that Teleguz sought to introduce “Martinez evidence related to
our Ephrata murder claim.” (Tr. 10-11, Nov. 14, 2013, ECF No. 305.) Counsel for
the Warden asked counsel for Teleguz to clarify which claims Teleguz contended
could be reached by applying Martinez. Teleguz’s counsel replied, “We’re saying
it applies to the ineffective assistance of counsel claim that’s already been asserted
in the petition, which deals with the ineffective assistance concerning the Ephrata
murder, so it’s an existing claim, not a new claim.” (Id. at 11-12.) I permitted
Teleguz to present that evidence related to the Ephrata murder claim. Counsel for
Teleguz did not seek to present any additional evidence related to Martinez.
In his post-hearing brief in this court, Teleguz requested “an opportunity to
develop and present further evidence concerning Martinez issues.” (Pet’r’s PostHr’g Br. 8, ECF No. 310.) He argued that he had “presented sufficient evidence to
establish cause and prejudice under Martinez v. Ryan, 132 S. Ct. 1309 (2012),
which would overcome the procedural default of Teleguz’s ineffective assistance
of counsel claim regarding the Ephrata murder (Claim II in Teleguz’s Amended
(Id. at 83.)
He further argued that he was “entitled to a similar
opportunity to develop and present evidence and argument regarding additional
ineffective assistance of counsel claims that may be cognizable under Martinez.
The most prudent course is for this Court to provide him that opportunity now,
before the case returns to the Court of Appeals.” (Id. at 83-84.) Though he
acknowledged that “[u]nder Martinez . . . cause and prejudice must be assessed on
a claim-by-claim basis” (id. at 84), Teleguz did not offer any evidence or argument
regarding the applicability of Martinez to any specific procedurally defaulted
ineffective assistance claim aside from the claim pertaining to the Ephrata murder.
He claimed that “whereas Teleguz has presented limited (though sufficient)
evidence showing cause and prejudice under Martinez excusing the default of
Claim II, he has had no opportunity to develop or present such evidence regarding
his other claims,” despite the fact that he never sought to present such evidence at
the evidentiary hearing. (Id. at 89.)
Following the evidentiary hearing and post-hearing briefing, I again denied
Teleguz’s petition. I specifically addressed Martinez as it related to the Ephrata
I stated that Teleguz was relying on Martinez “to overcome a
procedural bar to his sentencing-phase ineffective assistance claim relating to a
murder in Pennsylvania.”
Teleguz v. Davis, No. 7:10CV00254, 2014 WL
3548982, at *21 (W.D. Va. July 17, 2014), aff’d sub nom. Teleguz v. Zook, 806
F.3d 803 (4th Cir. 2015).
I concluded that Teleguz’s Martinez argument
implicated the mandate rule because “the court of appeals declined to grant a
certificate of appealability as to the Ephrata murder claim.” Id. at *23. However,
“to prevent any possible injustice,” id., I considered the Ephrata murder claim on
the merits and found that the underlying ineffective assistance of trial counsel
claim was not substantial because even if trial counsel had erred, Teleguz could not
show that he was prejudiced by the error, as required by Strickland. See id. at 2325.
After I issued my second opinion denying Teleguz’s petition, Teleguz again
appealed. Teleguz’s discussion of Martinez in his opening brief to the court of
appeals again focused solely on the Ephrata murder claim. (Br. of Appellant,
Teleguz v. Zook, No. 11-9 (4th Cir. Feb. 4, 2015) ECF No. 74.) He did not argue
that Martinez applied to any other procedurally defaulted claims. Not until his
reply brief to the court of appeals did Teleguz suggest to that court, again without
any specificity, that Martinez applied to all of his procedurally defaulted claims.
(Reply Br. of Appellant at 32-33, Teleguz v. Zook, No. 11-9, (4th Cir. Apr. 14,
2015) ECF No. 92.) Teleguz specifically asked the court of appeals to remand his
case for a full hearing on the application of Martinez. (Id.) The court of appeals
declined to do so. Teleguz v. Zook, 806 F.3d 803, 818 (4th Cir. 2015) (affirming
this court’s dismissal of Teleguz’s petition).
Teleguz petitioned the court of appeals for rehearing and rehearing en banc,
asking the court of appeals to “review and determine whether Teleguz’s defaulted
claims are cognizable under Martinez.” (Pet. for Rehr’g and Reh’g En Banc at 10,
Teleguz v. Zook, No. 11-9, (4th Cir. Dec. 14, 2015) ECF No. 107.) The court of
appeals denied that petition. (Order, Teleguz v. Zook, No. 11-9, (4th Cir. Dec. 29,
2015) ECF No. 109.)
Teleguz next moved the court of appeals to stay its mandate pending the
Supreme Court’s disposition of his Petition for Writ of Certiorari. (Mot. to Stay or
Recall the Mandate Pending Filing & Disposition of Pet. for Writ of Cert., Teleguz
v. Zook, No. 11-9, (4th Cir. Dec. 29, 2015) ECF No. 110.) The court of appeals
granted his motion to stay the mandate. (Order, Teleguz v. Zook, No. 11-9, (4th
Cir. Feb. 1, 2016) ECF No. 116.)
On March 8, 2015, Teleguz moved the court of appeals to stay his execution,
which had been scheduled for April 13, 2016.
(Mot. for Stay of Execution,
Teleguz v. Zook, No. 11-9, (4th Cir. Mar. 8, 2015) ECF No. 118.) In this motion,
Teleguz finally identified, in a footnote, the other procedurally defaulted claims
whose defaults he alleged could be overcome by application of Martinez. (Id. at
11 n.5.) The court of appeals granted the motion to stay his execution on March
29, 2016. Order, Teleguz v. Zook, No. 11-9, (4th Cir. Mar. 29, 2016) ECF No. 123.
Teleguz filed his Petition for Writ of Certiorari with the Supreme Court on
May 27, 2016. (Teleguz v. Zook, No. 15-1450 (Sup. Ct. filed May 27, 2016).)
On March 16, 2016, Teleguz filed the instant motion in this court. His Rule
60(b) motion has been fully briefed and is ripe for decision.1 For the reasons that
follow, I will deny the motion.
Rule 60(b) allows a party to seek relief from a final civil judgment in a
limited number of circumstances, including: (1) mistake or neglect; (2) newly
discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been
satisfied; and (6) “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
When a petitioner seeks Rule 60 relief from the court’s judgment denying his §
2254 petition, he must demonstrate “some defect in the integrity of the federal
habeas proceedings” to justify revisiting the judgment denying his original habeas
petition, such as an erroneous finding of procedural default or a statute of
limitations bar. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). The petitioner may
not use Rule 60 to evade the successive petition bar contained in 28 U.S.C. §
I will dispense with oral argument because the facts and legal contentions have
been adequately presented in the materials before the court and oral argument would not
significantly aid in the decisional process.
2244(b) by bringing new claims that challenge the underlying conviction or
sentence or that attack “the substance of the federal court’s resolution of a [prior
habeas] claim on the merits.” Id. A motion that attempts such an attack must be
construed and may be summarily dismissed as a successive § 2254 petition. Id. at
531–32; United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003). This court
may consider a successive § 2254 petition only upon specific certification from the
United States Court of Appeals for the Fourth Circuit. 28 U.S.C. § 2244(b).
The Warden contends that I lack jurisdiction to consider Teleguz’s Rule
60(b) motion because it is a successive habeas petition that was filed without preauthorization from the court of appeals. I disagree. Teleguz’s Rule 60(b) motion
attacks my findings that certain claims were procedurally defaulted. This is a
procedural issue properly raised in a Rule 60 motion. Teleguz is not asserting any
new substantive claims; he is only seeking to resolve on the merits claims that
were raised in his original habeas petition but found to have been procedurally
defaulted. Because I found the claims procedurally defaulted, I did not consider
the merits of those claims. 2 See Coleman v. Stephens (In re Coleman), 768 F.3d
367, 371 (5th Cir. 2014) (stating that an erroneous prior ruling that precluded a
determination on the merits, such as a finding of procedural default, is a procedural
The exception is the Ephrata murder claim, which I did consider on the merits. I
never reached the merits of the other four procedurally defaulted claims, however, and I
construe Teleguz’s motion to focus on those claims.
defect). Therefore, I conclude that Teleguz’s Rule 6(b) motion does not operate as
a successive habeas petition, and I have jurisdiction to decide the motion.
To obtain relief under Rule 60(b), Teleguz must show four factors: (1)
timeliness, (2) a meritorious defense; (3) a lack of unfair prejudice to the opposing
party; and (4) exceptional circumstances. Werner v. Carbo, 731 F.2d 204, 206-07
(4th Cir. 1984). A Rule 60(b) motion “must be made within a reasonable time.”
Fed. R. 60(c)(1). “[T]he movant bears the burden of showing timeliness.” Moses
v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016).
Teleguz argues that the operative date for determining timeliness was
December 29, 2015, when the court of appeals denied his Petition for Rehearing
and Rehearing En Banc. To the contrary, I find that the operative date was July 17,
2014, when I issued my opinion denying his habeas petition for the second time
and specifically addressing Martinez as applied to the Ephrata murder claim.
Teleguz could have filed a Rule 60(b) motion at that time to request, with
specificity, that I consider the application of Martinez to his other procedurally
defaulted claims. Instead, he waited a year and eight months, approximately three
weeks before the date for which his execution was scheduled, to move for relief
The court of appeals has held that a delay of more than two years was
untimely, see Moses, 815 F.3d at 166-67, and I believe it would find the twenty18
month delay here to be untimely as well. Indeed, even if the operative date were
December 29, 2015, as Teleguz contends, it was unreasonable in this case for him
to wait even four months to file his motion. Martinez was decided on March 20,
2012, nearly four years before Teleguz filed his motion, and he has been arguing
the applicability of Martinez to his case since before the Supreme Court even
issued its opinion in Martinez. Teleguz has offered no reason why he could not
have filed his Rule 60(b) motion within days of the denial of his petition for
rehearing. Under the circumstances presented here, Teleguz’s motion is clearly
In addition, Teleguz’s motion must be denied because he has failed to
demonstrate exceptional or extraordinary circumstances warranting relief.
Teleguz’s motion invokes Rule 60(b)(6), which provides that I may grant relief
from judgment for “any other reason that justifies relief.”
The Supreme Court
requires “a movant seeking relief under Rule 60(b)(6) to show ‘extraordinary
circumstances’ justifying the reopening of a final judgment.” Gonzalez, 545 U.S.
at 535 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). “Such
circumstances will rarely occur in the habeas context.” Id. A “motion for relief
invoking the change in procedural default rules occasioned by Martinez falls well
short of ‘extraordinary.’” Moses, 815 F.3d at 168.
In an attempt to avoid this problem, Teleguz asserts that in addition to the
change in law effected by Martinez, the circumstances in his case also include his
diligence in pursuing review of the issues at hand and “an unreasonable refusal of
the federal courts to address and resolve issues related to ‘bedrock’ principles of
justice.” (Mem. Supp. Pet’r’s Mot. for Relief from J. under Fed. R. Civ. P. 60(b)
16, ECF No. 337-1) (quoting Martinez, 132 S. Ct. at 1317). These allegations do
not amount to extraordinary circumstances. Because Teleguz has not satisfied this
essential requirement for Rule 60(b) relief, I must deny his motion.
For the foregoing reasons, it is ORDERED that Petitioner’s Motion for
Relief from Judgment under Federal Rule of Civil Procedure 60(b) is DENIED.
ENTER: August 31, 2016
/s/ James P. Jones
United States District Judge
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