Jermont Cox v. Martin Horn , 757 F.3d 113 ( 2014 )


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  •                                         PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 13-2982
    _____________
    JERMONT COX,
    Appellant
    v.
    MARTIN HORN; CONNOR BLAINE;
    THE DISTRICT ATTORNEY
    OF THE COUNTY OF PHILADELPHIA;
    THE ATTORNEY GENERAL
    OF THE STATE OF PENNSYLVANIA
    ______________
    APPEAL FROM THE UNITED STATES DISTRICT
    COURT FOR THE
    EASTERN DISTRICT OF PENNSYLVANIA
    (D.C. Civil No. 2-00-cv-05188)
    District Judge: Honorable Anita B. Brody
    ____________
    Argued: June 12, 2014
    ____________
    Before: AMBRO and BARRY, Circuit Judges, and
    RESTANI,* Judge
    (Opinion Filed: August 7, 2014)
    ____________
    Stuart B. Lev, Esq. (Argued)
    Federal Community Defender Office for the Eastern District
    of Pennsylvania
    *
    Honorable Jane A. Restani, Judge, United States Court of
    International Trade, sitting by designation.
    Capital Habeas Unit
    601 Walnut Street
    The Curtis Center, Suite 545 West
    Philadelphia, PA 19106
    Counsel for Appellant
    Molly S. Lorber, Esq. (Argued)
    Thomas W. Dolgenos, Esq.
    Helen Kane, Esq.
    Philadelphia County Office of District Attorney
    3 South Penn Square
    Philadelphia, PA 19107
    Counsel for Appellees
    ____________
    OPINION OF THE COURT
    ____________
    BARRY, Circuit Judge
    More than twenty years ago, Jermont Cox was
    convicted in the Court of Common Pleas of Philadelphia
    County of first-degree murder and related charges. In 2000,
    he filed a petition in the U.S. District Court for a writ of
    habeas corpus. The District Court dismissed the petition in
    2004, finding that all but one of Cox’s claims were
    procedurally defaulted due to counsel’s failure to pursue them
    in Cox’s initial-review post-conviction proceeding in state
    court and that the one preserved claim lacked merit. We
    affirmed. In 2012, the Supreme Court of the United States
    decided Martinez v. Ryan, 
    132 S. Ct. 1309
    (2012), which
    announced an exception to longstanding precedent and found
    that, under certain circumstances, and for purposes of habeas
    review, post-conviction counsel’s failure to raise ineffective
    assistance of trial counsel claims could excuse a procedural
    default of those claims. Within three months of that decision,
    Cox filed a motion under Rule 60(b)(6) of the Federal Rules
    of Civil Procedure for relief from the 2004 order dismissing
    his habeas petition. The District Court denied the motion,
    finding that the intervening change in law occasioned by
    2
    Martinez, “without more,” did not provide cause for relief.
    We agree that, for relief to be granted under Rule
    60(b)(6), “more” than the concededly important change of
    law wrought by Martinez is required—indeed, much “more”
    is required. Ultimately, as with any motion for 60(b)(6)
    relief, what must be shown are “extraordinary circumstances
    where, without such relief, an extreme and unexpected
    hardship would occur.” Sawka v. Healtheast, Inc., 
    989 F.2d 138
    , 140 (3d Cir. 1993); accord Budget Blinds, Inc. v. White,
    
    536 F.3d 244
    , 255 (3d Cir. 2008). But what those
    extraordinary circumstances would—or could—be in the
    context of Martinez was neither offered to the District Court
    by the parties nor discussed by the Court, although, to be
    sure, at that point there had been little post-Martinez case law
    to inform any such discussion.
    We will vacate the order of the District Court and
    remand to provide the Court the opportunity to consider
    Cox’s Rule 60(b)(6) motion with the benefit of whatever
    guidance it may glean from this Opinion and from any
    additional briefing it may order. We note at the outset that
    one of the critical factors in the equitable and case-dependent
    nature of the 60(b)(6) analysis on which we now embark is
    whether the 60(b)(6) motion under review was brought within
    a reasonable time of the Martinez decision. See Fed. R. Civ.
    P. 60(c)(1). It is not disputed that the timing of the 60(b)(6)
    motion before us—filed, as it was, roughly ninety days after
    Martinez—is close enough to that decision to be deemed
    reasonable. Still, though not an issue before us, it is
    important that we acknowledge—and, indeed, we warn—that,
    unless a petitioner’s motion for 60(b)(6) relief based on
    Martinez was brought within a reasonable time of that
    decision, the motion will fail.
    I.     PROCEDURAL HISTORY
    Recognizing that more than twenty years of procedural
    history has brought us to this point, it is, nonetheless,
    important that that history be recounted. We will attempt to
    be succinct, if not laserlike, in our recitation.
    On October 28, 1993, following a bench trial before
    3
    the Hon. Carolyn Engel Temin of the Court of Common Pleas
    of Philadelphia County, Cox was convicted of first-degree
    murder, criminal conspiracy, and possession of an instrument
    of crime in connection with the July 19, 1992 shooting death
    of Lawrence Davis, and was sentenced to life imprisonment.
    In a statement he gave to the police at the time of his
    arrest, Cox confessed to shooting Davis, but said that the
    shooting had been accidental. He and a friend, Larry Lee, he
    said, had gone to a drug house operated by Lee. While they
    were outside drinking, Lee got into a dispute with Davis that
    escalated into a physical altercation. At some point, Lee
    handed Cox a gun that was already cocked. Cox shot twice,
    hitting Davis, and then handed the gun back to Lee.
    According to Cox, he later told family members that the
    shooting had been an accident.
    To prove at trial that Cox had the requisite intent for
    first-degree murder, the Commonwealth presented the
    testimony of Kimberly Little, an eyewitness. Little testified
    that Cox and Lee worked for a drug organization that was run
    out of an apartment in her building: Cox was a “lookout” and
    Lee supplied the operation’s drugs. (A. 31.) On the night of
    Davis’ death, Little saw from her window an argument erupt
    between Davis and Lee. According to Little, Cox then exited
    a local bar with a six-pack of beer, approached the two men,
    placed the six-pack on the hood of Lee’s nearby car, retrieved
    a gun from the car, walked to within four feet of Davis, and
    shot him three times. Cox stopped to drink a beer, and he and
    Lee left in Lee’s car.
    The Commonwealth’s other witnesses were Kimberly
    Little’s sister, Mary Little; the medical examiner; and a
    ballistics expert. Mary Little confirmed that Cox and Lee
    were neighborhood drug dealers and that she saw them drive
    off together after the shooting. The medical examiner
    asserted that Davis had four wounds caused by at least three
    bullets, and the ballistics expert explained that it was unlikely
    the shooting was accidental given the number of shots fired.
    Trial counsel filed post-verdict motions on Cox’s
    behalf. Cox also filed a motion pro se alleging trial counsel’s
    4
    ineffectiveness and requesting the appointment of new
    counsel. In February of 1994, Judge Temin held a hearing on
    the post-verdict motions. At the hearing, Cox testified in
    support of his pro se motion and outlined trial counsel’s
    alleged failings: trial counsel (1) failed to present testimony
    from various character witnesses; (2) failed to find a witness,
    identified by Cox, who would have testified that “guys from
    the neighborhood” forced Kimberly Little to give a false
    statement to the police, (S.A. 47); (3) failed to review
    paperwork that Cox provided him; and (4) dissuaded Cox
    from taking the stand in his own defense. In response, trial
    counsel stated that he found himself in “a very untenable
    position” and asked that he be permitted to withdraw. (S.A.
    59.) Judge Temin denied the request as well as the pro se
    motion, finding Cox’s claims of ineffectiveness to lack merit.
    She later denied the counseled post-verdict motions.
    Cox, still represented by trial counsel, appealed his
    conviction, challenging the sufficiency of the evidence and
    the admission of evidence relating to uncharged drug activity.
    In June of 1995, the Pennsylvania Superior Court affirmed
    the judgment of sentence. Cox then filed a pro se petition for
    allocatur in the Pennsylvania Supreme Court, raising claims
    of trial counsel’s ineffective assistance at the trial and on
    appeal. New counsel was appointed for Cox and submitted a
    supplemental allocatur petition. The Supreme Court denied
    allocatur in April of 1996.1
    1
    By that time, Cox had also been convicted of the
    1992 first-degree murders of Roosevelt Watson and Terence
    Stewart, both of whom he aided Lee in killing. Cox was
    sentenced to life imprisonment for the murder of Watson and
    death for the murder of Stewart. His conviction for
    murdering Davis was found to be an aggravating factor in
    support of his capital sentence. See Commonwealth v. Cox,
    
    983 A.2d 666
    , 673-75 (Pa. 2009). Those convictions have
    spawned federal habeas proceedings that are before the
    District Court, and Cox has filed new PCRA petitions
    challenging his convictions on all three murders on the basis
    of new ballistics evidence. His habeas petitions relating to
    the Watson and Stewart cases have been stayed pending those
    PCRA proceedings.
    5
    The following month, Cox filed a pro se petition under
    Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.
    Cons. Stat. Ann. §§ 9541-9546. The attorney who had
    represented Cox in his petition to the Pennsylvania Supreme
    Court was again appointed to represent Cox in his collateral
    review proceeding under PCRA. Counsel filed an amended
    PCRA petition asserting claims of ineffective assistance of
    trial counsel.2 Judge Temin, sitting as the PCRA court, held a
    hearing at which PCRA counsel chose to proceed on only one
    of the multiple claims of trial counsel’s ineffectiveness:
    failure to impeach the Littles with their criminal records and
    motive to curry favor with the Commonwealth to gain
    leniency in their own cases.
    On August 28, 1998, Judge Temin denied post-
    conviction relief, finding that Cox had not been prejudiced by
    trial counsel’s failure to impeach Kimberly and Mary Little
    with their criminal records because evidence aside from their
    testimony established his guilt. The Superior Court affirmed
    in July of 1999 and the Supreme Court denied allocatur in
    December of that year. Cox filed a second PCRA petition pro
    se, alleging ineffective assistance claims against trial and
    PCRA counsel. Judge Temin dismissed the petition as
    untimely, and the Superior Court affirmed after Cox failed to
    file a brief.
    In October of 2000, Cox, now represented by the
    Federal Defender, filed a petition for a writ of habeas corpus
    in the U.S. District Court. The petition raised eight grounds
    for relief: (1) six claims of ineffective assistance of trial
    2
    The counseled PCRA petition claimed that trial
    counsel had provided constitutionally deficient representation
    when he failed to impeach the Little sisters with (1) the fact
    that they had charges pending against them when they first
    gave statements to the police, were eventually convicted of
    lesser charges, and were on probation at the time of trial; (2)
    their alleged familial relationship to the murder victim, Davis;
    and (3) a prior inconsistent statement by Kimberly Little.
    Trial counsel was also allegedly deficient for failing to
    present evidence of Cox’s lawful employment.
    6
    counsel; (2) one violation of Brady v. Maryland, 
    373 U.S. 83
    (1963); and (3) a claim of cumulative error. In July of 2003,
    a magistrate judge issued a report and recommendation
    (“R&R”) in which he determined that the ineffective
    assistance claims abandoned by PCRA counsel before the
    PCRA court, as well as the Brady and cumulative error
    claims, were procedurally defaulted. He reviewed the
    remaining claim of ineffective assistance—trial counsel’s
    failure to impeach the Littles with their criminal records—and
    concluded that the Superior Court’s decision rejecting that
    claim was neither “contrary to” nor an “unreasonable
    application” of established federal law. (A. 44-47 (quoting 28
    U.S.C. § 2254(d)(1)).) Cox filed objections to the R&R,
    arguing that PCRA counsel’s unilateral decision to abandon
    claims constituted cause to overcome the procedural default
    bar. In August of 2004, the District Court rejected Cox’s
    objections, adopted the R&R, and dismissed the habeas
    petition.3 We affirmed on appeal. Cox v. Horn, 174 F. App’x
    84 (3d Cir. 2006).
    Six years later, on June 20, 2012, Cox filed a motion
    pursuant to Federal Rule of Civil Procedure 60(b)(6) seeking
    relief from the District Court’s order of dismissal due to the
    intervening change in procedural law occasioned by the
    March 20, 2012 decision of the Supreme Court of the United
    States in Martinez v. Ryan. The Court held in Martinez that,
    under certain circumstances, error by post-conviction counsel
    can constitute cause to overcome the procedural default of
    3
    The District Court granted a certificate of
    appealability on two issues: (1) whether the Superior Court’s
    resolution of Cox’s ineffective assistance of counsel claim,
    based on trial counsel’s failure to impeach Kimberly Little
    with evidence of her criminal record, “resulted in a decision
    that was contrary to, or involved an unreasonable application
    of, clearly established federal law” and (2) “whether the
    Superior Court’s failure to remand to the trial court to
    conduct a hearing to determine whether [Cox] wanted to
    proceed pro se or with counsel establishe[d] cause to
    overcome a procedural default” of his other claims. Cox v.
    Horn, No. 00-5188 (E.D. Pa. Aug. 11, 2004) (order granting
    certificate of appealability).
    7
    claims alleging trial counsel’s ineffective assistance. Cox
    argued that it was only due to PCRA counsel’s ineffective
    assistance at the initial PCRA proceeding that his claims of
    ineffectiveness against trial counsel had been abandoned and
    were now procedurally defaulted.
    On May 23, 2013, the District Court denied Cox’s
    motion, finding that “Martinez’s change of law, without
    more,” was not cause for relief. (A. 5.) In a separate July 2,
    2013 order, the District Court issued a certificate of
    appealability on the “legal question” of “whether the change
    in law resulting from Martinez constitutes extraordinary
    circumstances that would warrant relief” under Rule 60(b)(6).
    (A. 6.)
    II.    JURISDICTION AND STANDARD OF REVIEW
    The District Court had jurisdiction pursuant to 28
    U.S.C. §§ 2241 and 2254. We have appellate jurisdiction
    pursuant to 28 U.S.C. §§ 1291 and 2253.
    We review for abuse of discretion a district court’s
    denial of a motion under Rule 60(b)(6). Brown v. Phila.
    Hous. Auth., 
    350 F.3d 338
    , 342 (3d Cir. 2003). A district
    court abuses its discretion when it bases its decision upon a
    clearly erroneous finding of fact, an erroneous conclusion of
    law, or an improper application of law to fact. Morris v.
    Horn, 
    187 F.3d 333
    , 341 (3d Cir. 1999).
    III.   ANALYSIS
    A.      The Martinez Rule
    When reviewing a state prisoner’s petition for a writ of
    habeas corpus, a federal court normally cannot review a
    federal claim for post-conviction relief that has already been
    rejected by a state court on the basis of an independent and
    adequate state procedural rule. Walker v. Martin, 
    131 S. Ct. 1120
    , 1127 (2011); Coleman v. Thompson, 
    501 U.S. 722
    , 750
    (1991). A petitioner may obtain federal review of a
    procedurally defaulted claim, however, if he demonstrates
    cause for the default and prejudice arising from the violation
    8
    of federal law. 
    Martinez, 132 S. Ct. at 1316
    (citing 
    Coleman, 501 U.S. at 750
    ).
    When Cox’s habeas petition was initially under review
    by the District Court, the governing rule, as recognized in
    Coleman, was that error by counsel in state post-conviction
    proceedings could not serve as “cause” sufficient to excuse
    procedural default of a petitioner’s claim. See 
    Coleman, 501 U.S. at 752-54
    ; Sweger v. Chesney, 
    294 F.3d 506
    , 522 & n.16
    (3d Cir. 2002). The Supreme Court carved out a significant
    exception to that rule nearly eight years after Cox’s petition
    was denied when, in 2012, it decided Martinez.
    In Martinez, the Supreme Court held that, where state
    law requires a prisoner to raise claims of ineffective
    assistance of trial counsel in a collateral proceeding, rather
    than on direct review, a procedural default of those claims
    will not bar their review by a federal habeas court if three
    conditions are met: (a) the default was caused by ineffective
    assistance of post-conviction counsel or the absence of
    counsel (b) in the initial-review collateral proceeding (i.e., the
    first collateral proceeding in which the claim could be heard)
    and (c) the underlying claim of trial counsel ineffectiveness is
    “substantial,” meaning “the claim has some merit,” analogous
    to the substantiality requirement for a certificate of
    appealability. 
    Martinez, 132 S. Ct. at 1318-20
    . The Court
    adopted this “equitable ruling” for several reasons. 
    Id. at 1319.
    First, “[t]he right to the effective assistance of counsel
    at trial is a bedrock principle in our justice system” vital to
    ensuring the fairness of an adversarial trial. 
    Id. at 1317.
    Second, a prisoner cannot realistically vindicate that right
    through a claim of ineffective assistance of trial counsel
    without “an effective attorney” to aid in the investigation and
    presentation of the claim. 
    Id. Finally, if
    the lack of effective
    counsel in an initial-review collateral proceeding could not
    excuse the federal procedural default bar, no court—state or
    federal—would ever review the defendant’s ineffective
    assistance claims, given that they were first brought in that
    collateral proceeding. 
    Id. at 1316.
    The majority in Martinez noted that it was
    propounding a “narrow,” 
    id. at 1315,
    “limited qualification”
    9
    to Coleman, 
    id. at 1319.
    Even so, what the Court did was
    significant. See, e.g., 
    id. at 1327
    (Scalia, J., dissenting)
    (criticizing Martinez as “a radical alteration of . . . habeas
    jurisprudence”); Lopez v. Ryan, 
    678 F.3d 1131
    , 1136 (9th Cir.
    2012) (“Martinez constitutes a remarkable—if ‘limited,’—
    development in the Court’s equitable jurisprudence.” (citation
    omitted)).
    In Trevino v. Thaler, 
    133 S. Ct. 1911
    (2013), issued
    the following Term, the Supreme Court clarified that the
    Martinez rule applied not only to states that expressly denied
    permission to raise ineffective assistance claims on direct
    appeal (such as Arizona, which Martinez addressed), but also
    to states in which it was “virtually impossible,” as a practical
    matter, to assert an ineffective assistance claim before
    collateral review. 
    Id. at 1915
    (quotation marks omitted).
    Texas law, at issue in Trevino, ostensibly permitted (though it
    did not require) criminal defendants to raise ineffective
    assistance of trial counsel claims on direct appeal. In
    practice, however, Texas’ criminal justice system “[did] not
    offer most defendants a meaningful opportunity” to do so. 
    Id. at 1921.
    As the Texas courts themselves had observed, trial
    records often lacked information necessary to substantiate
    ineffective assistance of trial counsel claims, and motion
    filing deadlines, coupled with the lack of readily available
    transcripts, generally precluded raising an ineffective
    assistance claim in a post-trial motion. Moreover, the Texas
    courts had invited, and even directed, defendants to wait to
    pursue such claims until collateral review. The Court
    “conclude[d] that where, as [in Texas], state procedural
    framework, by reason of its design and operation, makes it
    highly unlikely in a typical case that a defendant will have a
    meaningful opportunity to raise a claim of ineffective
    assistance of trial counsel on direct appeal, [the] holding in
    Martinez applies.” 
    Id. B. Cox’s
    Rule 60(b)(6) Motion
    Rule 60(b)(6) is a catch-all provision that authorizes a
    court to grant relief from a final judgment for “any . . .
    reason” other than those listed elsewhere in the Rule. Fed. R.
    Civ. P. 60(b)(6). As we noted at the outset, courts are to
    10
    dispense their broad powers under 60(b)(6) only in
    “extraordinary circumstances where, without such relief, an
    extreme and unexpected hardship would occur.” 
    Sawka, 989 F.2d at 140
    .
    Ninety-two days after the Supreme Court issued its
    decision in Martinez, Cox filed a motion under Rule 60(b)(6),
    seeking to reopen his federal habeas proceeding based on the
    “significant change in procedural law” caused by the
    decision. (A. 74.) In ruling on Cox’s motion, the District
    Court noted that neither the Supreme Court nor our Court had
    decided whether the rule announced in Martinez constituted
    an “extraordinary circumstance” sufficient in and of itself to
    support a 60(b)(6) motion and observed a divide among the
    courts of appeals that had addressed the issue. The Court
    explained that the Fifth Circuit, in Adams v. Thaler, 
    679 F.3d 312
    , 320 (5th Cir. 2012), held that “a change in law, including
    the change announced in Martinez, can never be the basis of
    60(b) relief.” (A. 4.) In contrast, it said, the Ninth Circuit
    had left open the possibility that Martinez, assessed together
    with other factors on a case-by-case basis, could justify 60(b)
    relief. (A. 4 (citing Lopez, 
    678 F.3d 1131
    ).)4 Joining what it
    viewed to be the position of every other district court in our
    Circuit to have opined on the impact of Martinez, the Court
    “adopt[ed] the reasoning of the Fifth Circuit to hold that
    Martinez’s change of law, without more, [was] insufficient to
    warrant relief under 60(b)(6).” (A. 4-5.)
    Although we agree with the District Court’s ultimate
    conclusion that Martinez, without more, is an insufficient
    basis for reopening a long-since-dismissed habeas petition,
    such as Cox’s, we cannot endorse the path it took to arrive at
    that conclusion. For one thing, Adams is not concordant with
    our precedent applying Rule 60(b)(6). For another, we cannot
    determine from what it wrote whether the Court considered
    factors—if any there be—beyond Martinez’s jurisprudential
    change in assessing Cox’s request for relief. To the extent the
    Court “adopt[ed] the reasoning” of Adams and there stopped
    its inquiry, it did not employ the full, case-specific analysis
    4
    In Lopez, the Ninth Circuit also denied Rule 60(b)(6)
    
    relief. 678 F.3d at 1137
    .
    11
    we require when faced with a 60(b)(6) motion, although, as
    we have already noted, little was offered by the parties in that
    regard.
    1.     Whether Martinez Is Itself an Extraordinary
    Circumstance
    Because it was a focal point of the District Court’s
    reasoning, we begin with a discussion of the Fifth Circuit’s
    decision in Adams v. Thaler. In Adams, as in this case, the
    district court dismissed a habeas petitioner’s ineffective
    assistance of counsel claims as procedurally defaulted under
    state law, finding that errors by state post-conviction counsel
    could not excuse the default. Following the Supreme Court’s
    decision in Martinez, the petitioner, who had been sentenced
    to death in Texas state court, filed a Rule 60(b)(6) motion
    seeking relief from the order dismissing his habeas petition.
    The petitioner pointed to several factors that, in combination,
    established “extraordinary circumstances” and entitled him to
    60(b)(6) relief: (1) the “‘jurisprudential sea change’ in federal
    habeas corpus law” occasioned by Martinez; (2) the fact that
    his case had resulted in a death sentence; and (3) “the
    equitable imperative that the true merit” of his claims be
    heard. 
    Adams, 679 F.3d at 319
    . He also filed a motion for a
    stay of execution pending the district court’s resolution of his
    60(b)(6) motion. The district court granted the stay of
    execution.
    The Fifth Circuit vacated that order as an abuse of the
    district court’s discretion, given that the petitioner had not
    shown a likelihood of success on his Rule 60(b)(6) motion.
    The court determined that the 60(b)(6) motion would not
    succeed because, under Fifth Circuit precedent, “[a] change in
    decisional law after entry of judgment does not constitute
    exceptional circumstances and is not alone grounds for relief
    from a final judgment.” 
    Id. (alteration in
    original) (internal
    quotation marks omitted). That proposition flowed from prior
    Fifth Circuit cases, which stated that “changes in decisional
    law . . . do not constitute the ‘extraordinary circumstances’
    required for granting Rule 60(b)(6) relief.” Hess v. Cockrell,
    
    281 F.3d 212
    , 216 (5th Cir. 2002); accord Hernandez v.
    Thaler, 
    630 F.3d 420
    , 430 (5th Cir. 2011) (per curiam).
    12
    Concluding that Martinez was “simply a change in decisional
    law” and its development of procedural default principles was
    “hardly extraordinary,” the Adams court denied 60(b)(6)
    relief without examining any of the petitioner’s individual
    circumstances. 
    Adams, 679 F.3d at 320
    (internal quotation
    marks omitted).
    Adams does not square with our approach to Rule
    60(b)(6).
    As an initial matter, we have not embraced any
    categorical rule that a change in decisional law is never an
    adequate basis for Rule 60(b)(6) relief. Rather, we have
    consistently articulated a more qualified position: that
    intervening changes in the law rarely justify relief from final
    judgments under 60(b)(6). See, e.g., Reform Party of
    Allegheny Cnty. v. Allegheny Cnty. Dep’t of Elections, 
    174 F.3d 305
    , 311 (3d Cir. 1999) (en banc) (“‘[I]ntervening
    developments in the law by themselves rarely constitute the
    extraordinary circumstances required for relief under Rule
    60(b)(6).’” (quoting Agostini v. Felton, 
    521 U.S. 203
    , 239
    (1997)) (emphasis added)); 
    Morris, 187 F.3d at 341
    (same).
    Stated somewhat differently, we have not foreclosed the
    possibility that a change in controlling precedent, even
    standing alone, might give reason for 60(b)(6) relief. See
    Wilson v. Fenton, 
    684 F.2d 249
    , 251 (3d Cir. 1982) (per
    curiam) (“A decision of the Supreme Court of the United
    States or a Court of Appeals may provide the extraordinary
    circumstances for granting a Rule 60(b)(6) motion . . . .”).
    Even if there is not much daylight between the “never”
    position of the Fifth Circuit and the “rarely” position that we
    have staked out, Adams differs from our precedent in yet
    another significant respect: its failure to consider the full set
    of facts and circumstances attendant to the Rule 60(b)(6)
    motion under review. The Fifth Circuit in Adams ended its
    analysis after determining that Martinez’s change in the law
    was an insufficient basis for 60(b)(6) relief and did not
    consider whether the capital nature of the petitioner’s case or
    any other factor might counsel that Martinez be accorded
    heightened significance in his case or provide a reason or
    reasons for granting 60(b)(6) relief. Indeed, the court did not
    13
    address in any meaningful way the petitioner’s claim that he
    was not offering Martinez “alone” as a basis for relief. In
    Diaz v. Stephens, 
    731 F.3d 370
    , 376 (5th Cir. 2013), the Fifth
    Circuit later acknowledged that Adams and its other precedent
    had not cited additional equitable factors “as bearing on the
    analysis of extraordinary circumstances under Rule
    60(b)(6).”5 See also 
    id. at 376
    n.1. The fact that the
    petitioner’s 60(b)(6) motion was predicated chiefly on a post-
    judgment change in the law was the singular, dispositive issue
    for the Adams court.
    We have not taken that route. Instead, we have long
    employed a flexible, multifactor approach to Rule 60(b)(6)
    motions, including those built upon a post-judgment change
    in the law, that takes into account all the particulars of a
    movant’s case. See Coltec Indus., Inc. v. Hobgood, 
    280 F.3d 262
    , 274 (3d Cir. 2002) (noting, in the context of a 60(b)(6)
    analysis, the propriety of “explicit[ly]” considering “equitable
    factors” in addition to a change in law); Lasky v. Cont’l
    Prods. Corp., 
    804 F.2d 250
    , 256 (3d Cir. 1986) (citing
    multiple factors a district court may consider in assessing a
    motion under 60(b)(6)).6 The fundamental point of 60(b) is
    that it provides “a grand reservoir of equitable power to do
    justice in a particular case.” Hall v. Cmty. Mental Health
    Ctr., 
    772 F.2d 42
    , 46 (3d Cir. 1985) (internal quotation marks
    omitted). A movant, of course, bears the burden of
    establishing entitlement to such equitable relief, which, again,
    will be granted only under extraordinary circumstances.
    Mayberry v. Maroney, 
    558 F.2d 1159
    , 1163 (3d Cir. 1977).
    But a district court must consider the full measure of any
    properly presented facts and circumstances attendant to the
    movant’s request.
    5
    The court in Diaz assumed, for the sake of argument,
    that a district court may consider several equitable factors in
    the Rule 60(b)(6) context, but found that consideration of
    those factors in Diaz’s case did not entitle him to 60(b)(6)
    
    relief. 731 F.3d at 377-78
    .
    6
    Notably, the factors outlined in Lasky parallel the
    equitable factors cited by the Fifth Circuit in Diaz as being of
    questionable relevance to Rule 60(b)(6) motions.
    14
    The Commonwealth appellees contend that Gonzalez
    v. Crosby, 
    545 U.S. 524
    (2005), effectively displaced our
    flexible approach in the habeas context and precludes Rule
    60(b)(6) relief based on a change in law, including Martinez.
    In Gonzalez, the district court dismissed a petitioner’s habeas
    petition as barred by the statute of limitations of the
    Antiterrorism and Effective Death Penalty Act (“AEDPA”),
    28 U.S.C. § 2244(d). It found that the limitations period was
    not tolled while his second state post-conviction motion was
    pending because the motion was untimely and successive and,
    therefore, had not been “properly filed.” 
    Id. at 527.
    The
    Eleventh Circuit denied a certificate of appealability and the
    petitioner did not seek subsequent review of that decision.
    Several months later, the Supreme Court rejected the district
    court’s reasoning in Artuz v. Bennett, 
    531 U.S. 4
    (2000), and
    held that an application for state post-conviction relief can be
    “properly filed” even if it was dismissed by the state as
    procedurally barred. The petitioner then filed a 60(b)(6)
    motion citing Artuz as an extraordinary circumstance. The
    Supreme Court rejected his argument. Noting that the
    circumstances warranting 60(b) relief would “rarely occur in
    the habeas context,” 
    Gonzalez, 545 U.S. at 535
    , the Court
    opined that “not every interpretation of the federal statutes
    setting forth the requirements for habeas provides cause for
    reopening cases long since final,” 
    id. at 536.
    It was “hardly
    extraordinary” that the district court’s interpretation of
    AEDPA, which was correct under the Eleventh Circuit’s
    then-governing precedent, was subsequently rejected in a
    different case. 
    Id. at 536.
    The Eleventh Circuit, describing Gonzalez, has
    observed that, in that opinion, “the U.S. Supreme Court . . .
    told us that a change in decisional law is insufficient to create
    the ‘extraordinary circumstance’ necessary to invoke Rule
    60(b)(6).” Arthur v. Thomas, 
    739 F.3d 611
    , 631 (11th Cir.
    2014) (citing 
    Gonzalez, 545 U.S. at 535
    -38). Relying on
    Gonzalez, the Eleventh Circuit in Arthur, just as the Fifth
    Circuit in Adams, went on to hold that “the change in the
    decisional law affected by the Martinez rule is not an
    ‘extraordinary circumstance’ sufficient to invoke Rule
    60(b)(6).” 
    Id. The Commonwealth
    appellees cite the
    Eleventh Circuit’s decision in an effort to persuade us that, in
    15
    light of Gonzalez, we should abandon our case-by-case
    approach to 60(b)(6) motions.
    We are not persuaded. We believe that the Eleventh
    Circuit extracts too broad a principle from Gonzalez, which
    does not answer the question before us. Gonzalez did not say
    that a new interpretation of the federal habeas statutes—much
    less, the equitable principles invoked to aid their
    enforcement—is always insufficient to sustain a Rule
    60(b)(6) motion. Gonzalez merely highlights, in action, the
    position of both the Supreme Court and this Court that
    “[i]ntervening developments in the law by themselves rarely
    constitute the extraordinary circumstances required for relief
    under Rule 60(b)(6).” 
    Agostini, 521 U.S. at 239
    (emphasis
    added); 
    Morris, 187 F.3d at 341
    . And, to be clear, the
    Gonzalez Court examined the individual circumstances of the
    petitioner’s case to see whether relief was appropriate,
    concluding that relief was not warranted given the petitioner’s
    “lack of diligence in pursuing review [in his own case] of the
    statute-of-limitations issue” eventually addressed in Artuz.
    
    Gonzalez, 545 U.S. at 537
    . For that matter, even after
    categorically pronouncing that Martinez’s change in the law
    could not sustain a 60(b)(6) motion, the Eleventh Circuit in
    Arthur briefly considered (and rejected) “other factors” cited
    by the movant, including the capital nature of his case, as
    justification for 60(b)(6) relief in the wake of Martinez.7
    7
    At least three other courts of appeals have similarly
    assessed a variety of factors on a case-by-case basis when
    deciding whether to grant a habeas petitioner’s Rule 60(b)(6)
    motion based on Martinez and Trevino. See Nash v. Hepp,
    
    740 F.3d 1075
    , 1078-79 (7th Cir. 2014) (noting that, per
    Gonzalez and prior Seventh Circuit precedent, Martinez’s
    change in law could not justify 60(b)(6) relief, but analyzing
    the specific circumstances of the petitioner’s case, including
    his lack of diligence and his prior opportunity to raise the
    defaulted claims); McGuire v. Warden, Chillicothe Corr.
    Inst., 
    738 F.3d 741
    , 750-52 (6th Cir. 2013) (denying 60(b)(6)
    motion after concluding that Trevino did not impart new
    constitutional rights, Trevino’s change of the law was the sole
    basis for the motion, and its rule arguably did not apply to the
    petitioner’s claims); 
    Lopez, 678 F.3d at 1135-37
    (applying a
    16
    
    Arthur, 739 F.3d at 633
    .
    We, therefore, believe that our case-dependent
    analysis, fully in line with Rule 60(b)(6)’s equitable
    moorings, retains vitality post-Gonzalez, and we do not adopt
    a per se rule that a change in decisional law, even in the
    habeas context, is inadequate, either standing alone or in
    tandem with other factors, to invoke relief from a final
    judgment under 60(b)(6). The District Court abused its
    discretion when it based its decision solely on the reasoning
    of Adams and failed to consider how, if at all, the capital
    aspect of this case or any other factor highlighted by the
    parties would figure into its 60(b)(6) analysis. We will
    remand to give it the opportunity to conduct that equitable
    evaluation now.
    2.      Rule 60(b)(6) Analysis
    The grant or denial of a Rule 60(b)(6) motion is an
    equitable matter left, in the first instance, to the discretion of a
    district court. We offer, however, the following thoughts to
    aid the District Court in its further review of Cox’s motion.
    First, and importantly, we agree with the District Court
    that the jurisprudential change rendered by Martinez, without
    more, does not entitle a habeas petitioner to Rule 60(b)(6)
    relief. To be sure, Martinez’s change to the federal rules of
    procedural default, though “limited,” was “remarkable.”
    
    Lopez, 678 F.3d at 1136
    (internal quotation marks omitted).
    Martinez sharply altered Coleman’s well-settled application
    of the procedural default bar and altered the law of every
    circuit. The rule adopted in Martinez was also important,
    crafted, as it was, to ensure that fundamental constitutional
    claims receive review by at least one court.
    Even so, Martinez did not announce a new
    constitutional rule or right for criminal defendants, but rather
    an equitable rule prescribing and expanding the opportunity
    for review of their Sixth Amendment claims. See Martinez,
    non-exhaustive, six-factor test to determine whether to grant
    60(b)(6) motion predicated on Martinez).
    
    17 132 S. Ct. at 1319
    ; 
    Arthur, 739 F.3d at 629
    ; 
    McGuire, 738 F.3d at 750-51
    ; Buenrostro v. United States, 
    697 F.3d 1137
    ,
    1139-40 (9th Cir. 2012) (published order). A post-judgment
    change in the law on constitutional grounds is not, perforce, a
    reason to reopen a final judgment. See Coltec 
    Indus., 280 F.3d at 276
    (affirming denial of Rule 60(b)(6) motion even
    though law on which judgment based declared
    unconstitutional); Blue Diamond Coal Co. v. Trs. of UMWA
    Combined Benefits Fund, 
    249 F.3d 519
    , 524 (6th Cir. 2001).
    Much less does an equitable change in procedural law, even
    one in service of vindicating a constitutional right, demand a
    grant of 60(b)(6) relief.
    We also hasten to point out that the merits of a
    petitioner’s underlying ineffective assistance of counsel claim
    can affect whether relief based on Martinez is warranted. It is
    appropriate for a district court, when ruling on a Rule
    60(b)(6) motion where the merits of the ineffective assistance
    claim were never considered prior to judgment, to assess the
    merits of that claim. See 
    Lasky, 804 F.2d at 256
    n.10. After
    all, the Martinez exception to procedural default applies only
    where the petitioner demonstrates ineffective assistance by
    post-conviction counsel, as well as a “substantial” claim of
    ineffective assistance at trial. 
    Martinez, 132 S. Ct. at 1318
    .
    When 60(b)(6) is the vehicle through which Martinez is to be
    given effect, the claim may well need be particularly
    substantial to militate in favor of equitable relief.8 A court
    8
    Of course, the procedural default exception
    announced in Martinez applies only in states where
    ineffective assistance claims, either expressly or as a matter
    of practicality, could not have been raised on direct appeal.
    
    Trevino, 133 S. Ct. at 1914-15
    . In Commonwealth v. Grant,
    
    813 A.2d 726
    , 738 (Pa. 2002), Pennsylvania decided to defer
    consideration of ineffective assistance of counsel claims to
    collateral review, making Martinez applicable to its criminal
    procedural system. At the time Cox’s direct appeal and
    PCRA proceeding were being adjudicated by the
    Pennsylvania courts, however, Pennsylvania required a
    criminal defendant to raise ineffective assistance claims at the
    earliest stage of proceedings during which he was no longer
    represented by the allegedly ineffective lawyer, for example,
    18
    the post-trial motions phase or direct appeal. 
    Id. at 729;
    Commonwealth v. Hubbard, 
    372 A.2d 687
    , 695 & n.6 (Pa.
    1977). The District Court determined that, because Cox was
    represented by the same attorney at trial and on direct appeal
    to the Superior Court, his PCRA proceeding presented the
    first opportunity to raise an ineffective assistance of trial
    counsel claim and Martinez, therefore, applied.
    The Commonwealth appellees argue that Martinez
    does not apply to pre-Grant Pennsylvania and that, in any
    event, Cox availed himself of the opportunity to raise
    ineffective assistance claims before the trial court and the
    Pennsylvania Supreme Court. We do not decide whether, as
    a general matter, Pennsylvania’s pre-Grant legal landscape
    falls within the ambit of the Martinez rule. We note simply
    that appellees have not established why the District Court
    erred in concluding that, under the pre-Grant procedural
    paradigm, defendants who, like Cox, were represented by the
    same counsel at trial and on direct appeal did not have a
    realistic opportunity to raise an ineffective assistance of trial
    counsel claim until collateral review. Extant Pennsylvania
    precedent made clear that Cox was not obligated to assert
    such a claim until trial counsel had been relieved of his
    representation. Cox was entitled to rely on that guidance,
    and, therefore, did not have to raise his ineffective assistance
    claims until PCRA review. See 
    Trevino, 133 S. Ct. at 1919
    -
    20; Sutton v. Carpenter, 
    745 F.3d 787
    , 793-94 (6th Cir.
    2014).
    It is true that trial counsel no longer represented Cox in
    his petition for allocatur to the Pennsylvania Supreme Court.
    Given the “unlikely and unpredictable” manner in which
    allocatur is granted by that court, however, a petition for
    allocatur had never been seen as the first opportunity to raise
    a claim of ineffective assistance. Commonwealth v. Moore,
    
    805 A.2d 1212
    , 1223 (Pa. 2002) (Castille, J., concurring in
    part and dissenting in part). In addition, a party may not
    present new claims in a petition for allocatur. Pa. R. App. P.
    302(a). Cox’s trial counsel did not raise claims of his own
    ineffective assistance before the Superior Court—something
    he could not do, in any event, see Commonwealth v. Green,
    
    709 A.2d 382
    , 384 (Pa. 1998); Commonwealth v. Dancer, 331
    19
    need not provide a remedy under 60(b)(6) for claims of
    dubious merit that only weakly establish ineffective
    assistance by trial or post-conviction counsel.
    Furthermore, courts must heed the Supreme Court’s
    observation—whether descriptive or prescriptive—that Rule
    60(b)(6) relief in the habeas context, especially based on a
    change in federal procedural law, will be rare. 
    Gonzalez, 545 U.S. at 535
    -36 & n.9. Principles of finality and comity, as
    expressed through AEDPA and habeas jurisprudence, dictate
    that federal courts pay ample respect to states’ criminal
    judgments and weigh against disturbing those judgments via
    60(b) motions. In that vein, a district court reviewing a
    habeas petitioner’s 60(b)(6) motion may consider whether the
    conviction and initial federal habeas proceeding were only
    recently completed or ended years ago. Considerations of
    repose and finality become stronger the longer a decision has
    been settled. See 
    id. at 536-37
    (cautioning against 60(b)(6)
    relief in “cases long since final” and “long-ago dismissals”);
    
    id. at 542
    n.4 (Stevens, J., dissenting) (“In cases where
    significant time has elapsed between a habeas judgment and
    the relevant change in procedural law, it would be within a
    district court’s discretion to leave such a judgment in
    repose.”). Here, Cox’s direct appeal was decided in 1996 and
    his initial habeas petition, in which his claims were deemed
    defaulted, was dismissed in 2004, eight years before
    Martinez.
    A movant’s diligence in pursuing review of his
    ineffective assistance claims is also an important factor.
    Where a movant has not exhausted available avenues of
    review, a court may deny relief under Rule 60(b)(6). See 
    id. at 537
    (majority opinion); 
    Lopez, 678 F.3d at 1136
    & n.1; In
    re Fine Paper Antitrust Litig., 
    840 F.2d 188
    , 194-95 (3d Cir.
    1988).
    A special consideration arises in this case, as well.
    Courts must treat with particular care claims raised in capital
    cases. Burger v. Kemp, 
    483 U.S. 776
    , 785 (1987) (“Our duty
    A.2d 435, 438 (Pa. 1975)—likely barring Cox from raising
    those claims in his allocatur petition.
    20
    to search for constitutional error with painstaking care is
    never more exacting than it is in a capital case.”). Although
    Cox did not receive a capital sentence for the murder of
    Davis, that murder conviction was used as an aggravating
    factor in arriving at a death sentence in a separate case, albeit
    one that is still under habeas review. That fact is significant.
    Finally, we offer no opinion on the substantiality or
    lack thereof of Cox’s claims or how the District Court should
    weigh the various factors that may be pertinent to his Rule
    60(b)(6) motion. Nor do we intimate that the Court is
    precluded from reaching the same conclusion on remand
    following a more comprehensive analysis. We conclude only
    that, perhaps with additional briefing by the parties, a more
    explicit consideration of the facts and circumstances relevant
    to the concededly timely filed underlying motion would have
    been, and is now, appropriate.
    IV.     CONCLUSION
    We will vacate the order of the District Court denying
    Cox’s Rule 60(b)(6) motion and remand for further
    proceedings consistent with this Opinion. If, following the
    proceedings on remand, an appeal is filed, that appeal shall be
    forwarded to this panel for decision.
    21
    

Document Info

Docket Number: 13-2982

Citation Numbers: 757 F.3d 113, 89 Fed. R. Serv. 3d 73, 2014 WL 3865836, 2014 U.S. App. LEXIS 15207

Judges: Ambro, Barry, Restani

Filed Date: 8/7/2014

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (24)

Jeffrey Hess v. Janie Cockrell, Director, Texas Department ... , 281 F.3d 212 ( 2002 )

Commonwealth v. Hubbard , 472 Pa. 259 ( 1977 )

kelvin-x-morris-no-as-1924-v-martin-horn-commissioner-pennsylvania , 187 F.3d 333 ( 1999 )

Commonwealth v. Green , 551 Pa. 88 ( 1998 )

Coleman v. Thompson , 111 S. Ct. 2546 ( 1991 )

Artuz v. Bennett , 121 S. Ct. 361 ( 2000 )

Hernandez v. Thaler , 630 F.3d 420 ( 2011 )

Budget Blinds, Inc. v. White , 536 F.3d 244 ( 2008 )

Robert M. Wilson v. Charles Fenton, Warden, U.S.N.E.P., and ... , 684 F.2d 249 ( 1982 )

Richard J. Mayberry v. James F. Maroney, Superintendent, ... , 558 F.2d 1159 ( 1977 )

Martinez v. Ryan , 132 S. Ct. 1309 ( 2012 )

Commonwealth v. Cox , 603 Pa. 223 ( 2009 )

Brady v. Maryland , 83 S. Ct. 1194 ( 1963 )

Agostini v. Felton , 117 S. Ct. 1997 ( 1997 )

Andrea Sawka v. Healtheast, Inc. And Richard Duncan , 989 F.2d 138 ( 1993 )

Blue Diamond Coal Co. v. Trustees of the Umwa Combined ... , 249 F.3d 519 ( 2001 )

coltec-industries-inc-a-pennsylvania-corporation-four-leaf-coal-company , 280 F.3d 262 ( 2002 )

lasky-harvey-guardian-ad-litem-lasky-jesse-i-and-jamie-november , 804 F.2d 250 ( 1986 )

ernest-and-eunice-brown-and-their-child-earnest-lamar-roberta-doyle-and , 350 F.3d 338 ( 2003 )

Trevino v. Thaler , 133 S. Ct. 1911 ( 2013 )

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