Errol Moses v. Carlton Joyner

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2
ERROL DUKE MOSES,
Petitioner − Appellant,
v.
CARLTON JOYNER, Warden, Central Prison,
Respondent − Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:03-cv-00910-TDS-LPA)
Argued: January 26, 2016 Decided: March 8, 2016
Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Niemeyer joined.
ARGUED: Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Peter Andrew
Regulski, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Kenneth J. Rose, CENTER FOR
DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant.
Roy Cooper, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
WILKINSON, Circuit Judge:
Appellant Errol Moses challenges the district court’s
denial of his motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b)(6). He argues that the
court abused its discretion in finding that the motion was
untimely under Rule 60(c). He further contends that the trial
court erred in concluding that the change in post-conviction
procedural default rules fashioned by Martinez v. Ryan, 132 S.
Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013),
did not constitute the kind of “extraordinary circumstance”
needed to reopen his case. For the reasons that follow, we
affirm.
I.
On November 14, 1997, a North Carolina jury convicted Moses
of two counts of first-degree murder for the killings of Ricky
Griffin and Jacinto Dunkley. State v. Moses, 350 N.C. 741, 745-
50, 517 S.E.2d 853, 857-60 (1999). In the early morning hours of
November 25, 1995, Moses had visited Griffin’s house to follow
up on a drug sale and fired three shots at Griffin’s head, two
“from a range of approximately two feet or less.” Id. at 746.
Two months later, on January 27, 1996, Moses drove to Dunkley’s
home in a stolen vehicle and threatened Dunkley with a handgun,
demanding to know where Dunkley hid his money. Id. at 747-50.
When Dunkley failed to respond, Moses shot him once in the chest
2
and once in the head. Id. Several days after the second murder,
while incarcerated on other charges, Moses contacted two people
in an attempt to conceal his murder weapon, which was
nonetheless later seized by police. Id.Following Moses’ capital sentencing hearing, the jury
recommended, and the trial court imposed, two death sentences.
The state supreme court affirmed Moses’ conviction, and the
United States Supreme Court denied his petition for writ of
certiorari. See State v. Moses, 350 N.C. 741, 517 S.E.2d 853(1999), cert. denied, 528 U.S. 1124 (2000). Moses filed a
“Motion for Appropriate Relief” (MAR) in the trial court,
alleging that he had been deprived of his Sixth Amendment right
to effective assistance of trial and appellate counsel. The
North Carolina courts rejected his claims. State v. Moses, 356
N.C. 442, 573 S.E.2d 160 (2002).
The procedural trail then becomes lengthy indeed. On
November 3, 2003, Moses filed a federal habeas petition under 28
U.S.C. § 2254 in the United States District Court for the Middle
District of North Carolina. He argued that his counsel provided
constitutionally deficient representation during the guilt and
penalty phases of trial. J.A. 370-411. Moses also asserted that
the inadequate performance of his post-conviction counsel
excused any procedural default of his ineffective-assistance-of-
trial-counsel claims. Id.3
The case was assigned to a magistrate judge who recommended
that Moses’ petition be denied. J.A. 565-600. Specifically, the
recommendation noted that Moses “attempt[ed] to drastically
broaden,” J.A. 591, the allegations contained in his MAR by
“mov[ing] well beyond a claim of failure to present evidence to
one of a failure to investigate.” J.A. 593. The magistrate judge
concluded that the newly-raised matters were both unexhausted
and procedurally barred. Hoping to remedy those infirmities
before the district court issued its order, Moses filed a second
MAR in the state trial court. His motion was ultimately
rejected. J.A. 622-23. The district court adopted the
magistrate’s recommendation on October 18, 2005, and this court
affirmed. The Supreme Court denied certiorari. Moses v. Branker,
No. 06-8, 2007 WL 3083548 (4th Cir. Oct. 23, 2007), cert.
denied, 554 U.S. 924 (2008).
Moses filed yet a third MAR with the state trial court on
October 1, 2009. He argued that the state violated the Due
Process Clause of the Fourteenth Amendment when it failed to
disclose an immunity agreement with a witness who testified
against Moses at trial. Moses also claimed that the state
knowingly refused to correct false testimony. After conducting
an evidentiary hearing, the court once again denied his motion.
Moses unsuccessfully petitioned the North Carolina Supreme Court
for review. State v. Moses, 365 N.C. 93, 706 S.E.2d 246 (2011).
4
On September 23, 2011, Moses filed a motion under
Rule 60(b) for relief from the district court’s October 2005
order dismissing his federal habeas petition. He raised the same
allegations presented in his third MAR. The district court
determined that the motion should be treated as a successive
habeas petition, and accordingly transferred the matter to this
court for pre-filing authorization. We denied authorization for
the successive habeas litigation. In re Moses, No. 13–1 (4th
Cir. Feb. 7, 2013).
Meanwhile, on March 20, 2012, the Supreme Court held in
Martinez that a procedural default under state law will not bar
a federal habeas court from hearing an ineffective-assistance-
of-trial-counsel (IATC) claim if a prisoner’s attorney
ineffectively failed to raise the IATC claim in the initial
state collateral proceedings. See 132 S. Ct. at 1315-20. About
fourteen months later, the Court decided Trevino, which extended
the Martinez exception to the customary rules of procedural
default to cases in which state procedure did not require a
petitioner to raise an ineffectiveness claim initially on
collateral review but nonetheless made it “highly unlikely” that
a criminal defendant would have a meaningful opportunity to
raise that claim on direct appeal. See 133 S. Ct. at 1921.
Moses filed a second motion for relief from judgment
pursuant to Rule 60(b) in the district court on
5
August 19, 2014 -- nearly fifteen months after the Supreme Court
handed down Trevino. Moses argued below, and maintains on
appeal, that the change in decisional law worked by Martinez and
Trevino represents the kind of “extraordinary circumstance”
justifying relief from judgment under 60(b)(6). J.A. 624-32. He
asserts that because the “allegations regarding [his] trial
counsel’s failure to adequately investigate and present
mitigating evidence . . . fall within the Martinez exception,”
his ineffective-assistance-of-trial-counsel claims are not
procedurally forfeited, and the district court’s decision
dismissing his federal habeas petition should be vacated. Id.
at 629. The court below held that Moses’ motion was not only
untimely under Rule 60(c), but that a change in habeas
decisional law, without more, is an insufficient basis for
60(b)(6) relief. Id. at 706-21. We granted a certificate of
appealability, and this appeal ensued.
II.
We first address whether Moses’ Rule 60(b)(6) motion for
relief from judgment on the basis of Martinez and Trevino
satisfies the timeliness requirement under Rule 60(c). We think
the district court acted well within its discretion in finding
the motion untimely. J.A. 722-25. Rule 60(c)(1) requires that
60(b) motions “be made within a reasonable time,” Fed. R. Civ.
P. 60(c)(1), and the movant bears the burden of showing
6
timeliness. Werner v. Carbo, 731 F.2d 204, 206-07 & n.1 (4th
Cir. 1984). Moses’ 60(b) motion is predicated on a change in
habeas procedural law established in Martinez, 132 S. Ct. 1309,
and later clarified in Trevino, 133 S. Ct. 1911. The Supreme
Court decided Martinez on March 20, 2012, and Trevino on May 28,
2013.
Nonetheless, appellant waited until August 19, 2014 to file
the 60(b) motion at issue here. J.A. 624-34. This was nearly
two-and-a-half years after Martinez and fifteen months after
Trevino. Such a delay would be inordinate under any
circumstances. This delay is especially inexplicable in view of
the fact that Moses had presented his claim asserting
ineffective assistance of trial counsel in federal court and was
procedurally barred for having failed to raise it in state post-
conviction proceedings. In other words, Moses was on high alert
as to the relevance of Martinez to his case given that he had
earlier pressed in federal habeas proceedings the exact argument
eventually adopted in Martinez: that ineffectiveness of post-
conviction counsel constitutes cause for procedural default.
Waiting well over two years after Martinez and a year after
Trevino to bring that argument before the district court in his
60(b) motion understandably struck that court as excessively
delayed under Rule 60(c).
7
What is more, Moses had filed an earlier 60(b) motion on
September 23, 2011, which was pending when Martinez came down.
Def.’s Mot., ECF No. 58. That 60(b) motion raised two issues,
that the state allowed false testimony and concealed an alleged
immunity agreement with a government witness, neither of which
related to procedural default of his ineffectiveness claim. Id.Yet Moses never tried to amend that pending motion to allege his
trial counsel’s ineffective assistance in light of the change in
procedural default rules.
We can hardly fault the district court for an abuse of
discretion in ruling that Moses’ delay was well beyond the
bounds of reasonableness set forth in Rule 60(c). Courts have
ruled Martinez-based 60(b) motions untimely in cases involving
shorter delays than that present here. E.g., Taylor v. Wetzel,
No. 4:CV-04-553, 2014 WL 5242076, at *8 (M.D. Pa. Oct. 15, 2014)
(filing one year and a day after Martinez untimely); Henness v.
Bagley, No. 2:01-cv-043, 2013 WL 4017643, at *11 (S.D. Ohio Aug.
6, 2013) (filing one year after Martinez untimely). In fact,
Moses refers us to no case where a delay as long as his was
deemed timely under Rule 60(c).
Appellant claims, however, that the starting point for the
timeliness inquiry should not be Martinez v. Ryan, but rather
Fowler v. Joyner, a Fourth Circuit case decided over two years
later. 753 F.3d 446 (4th Cir. 2014). In Fowler, this court
8
addressed how North Carolina’s post-conviction procedural scheme
fit within the new Martinez-Trevino framework. Id. at 462-63.
But Moses was in no way required to await the Fowler decision
before filing a new 60(b) motion or amending his existing 60(b)
motion to assert his Martinez-based claim. The barrier facing
appellant was always the procedural default of his ineffective-
assistance-of-counsel claim, a barrier that Martinez
specifically lifted. 132 S. Ct. at 1320. The operative date for
the timeliness inquiry is therefore Martinez and not Fowler.
To conclude that the operative date was anything other than
Martinez would permit those filing 60(b) motions to wait
indefinitely, shifting the starting point for determining
timeliness forward with every case that in some way related to
an earlier on-point Supreme Court decision. Fowler itself
frowned on any such tactic. In fact, Fowler discussed a Fourth
Circuit decision that further clarified Martinez, Juniper v.
Davis. Fowler, 753 F.3d at 461-62 (citing 737 F.3d 288 (4th Cir.
2013)). Our court treated Martinez, and not the inevitable later
elaborative decision by a lower court, as the operative change
in habeas law. See id. at 460-62. That approach is consistent
with the particular emphasis that AEDPA and other statutes
governing relief from final judgments place on changes in law by
the Supreme Court. See, e.g., 28 U.S.C. § 2254(e)(2)(A)(i)
(referring to “a new rule of constitutional law, made
9
retroactive to cases on collateral review by the Supreme
Court”); 28 U.S.C. § 2255(h)(2) (same).
In reaching our conclusion on timeliness, we remain
sensitive to the fact that standards such as “reasonable time,”
“excusable neglect,” and “good cause shown” reflect the
considerable latitude of judgment our system reposes in trial
courts. Were we to reverse the district court’s ruling here as
an abuse of discretion and accept as timely a motion filed two-
and-a-half years after the appellant knew or should have known
the basis for his 60(b) claim, the “reasonable time” limitation
in Rule 60(c)(1) would quickly lose all meaning. Movants would
be free to re-litigate matters years after their judgments had
become final and years after every subsequent change in law that
even arguably brought relief. We decline to so erode the
“principle of finality . . . essential to the operation of our
criminal justice system” and the respect we owe to state court
judgments. Teague v. Lane, 489 U.S. 288, 309 (1989).
III.
A.
Appellant’s problem with untimeliness is but the first of
many hurdles. The question remains whether he met the standard
for relief under Rule 60(b)(6). Rule 60(b) establishes grounds
for relief from a final judgment “under a limited set of
circumstances including fraud, mistake, and newly discovered
10
evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). In
addition to the specific categories for relief in 60(b)(1)-(5),
60(b)(6) offers a catch-all provision that allows a court to
“relieve a party or its legal representative from a final
judgment, order, or proceeding” for “any other reason that
justifies relief.” Fed. R. Civ. P. 60(b)(6).
Finding himself ineligible for any of the specific grounds
for relief in 60(b)(1)-(5), Moses rests his present motion on
the open-ended language of 60(b)(6). That provision, however,
has been firmly reined in by the Supreme Court. In Gonzalez v.
Crosby, the Court addressed a situation similar to the present
case: a 60(b) motion seeking to reopen a district court judgment
dismissing a federal habeas petition as time-barred by AEDPA’s
statute of limitations. 545 U.S. 524. The movant in Gonzalez
relied on a favorable change in habeas decisional law handed
down by the Supreme Court after the district court decision. Id.at 527 (citing Artuz v. Bennett, 531 U.S. 4 (2000)). Despite the
change in procedural law, Gonzalez made clear that 60(b)(6) is
not ordinarily available to those challenging previously denied
habeas relief. To the contrary, a showing of “extraordinary
circumstances” is required for a successful 60(b)(6) motion. 545
U.S. at 535; accord Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 864 (1988) (quoting Ackerman v. United
States, 340 U.S. 193, 199 (1950)).
11
As the word “extraordinary” suggests, “not every
interpretation of the federal statutes setting forth the
requirements for habeas provides cause for reopening cases long
since final.” Id. at 536. Underlying the Court’s concern was the
reality that changes in the habeas statutes and in the judicial
interpretation of habeas procedural rules are relatively common.
See id. at 536-37. Each new twist and turn runs the risk of
producing a tidal wave of 60(b) motions, just as Martinez has
done throughout the lower courts. Further, the potential for
60(b) motions to “impermissibly circumvent the requirement[s]”
for securing relief under AEDPA was evident. Id. at 532. The
prospect of having the open-ended language of Rule 60(b)(6)
supplant the specific habeas constraints in AEDPA, see 28 U.S.C.
§ 2254(b)-(i), led the Gonzalez Court to this conclusion: The
“extraordinary circumstances” required for relief under 60(b)(6)
would “rarely occur in the habeas context.” 545 U.S. at 535.
In light of Gonzalez’s cabined conception of Rule 60(b)(6)
in the habeas context, Moses’ motion for relief invoking the
change in procedural default rules occasioned by Martinez falls
well short of “extraordinary.” In fact, Moses’ ground for
reopening judgment under 60(b)(6) is not extraordinary for the
same reasons Gonzalez’s was not extraordinary. Moses argues that
“[t]he intervening change in law represented by
Martinez . . . directly overruled the decision [of the district
12
court] for which reconsideration has been sought,” thus
warranting relief from judgment under 60(b). J.A. 631. But that
is precisely the line of reasoning the Supreme Court rejected in
Gonzalez. 545 U.S. at 536 (“Petitioner’s only ground for
reopening the judgment denying his first federal habeas petition
is that our decision in Artuz showed the error of the District
Court’s statute-of-limitations ruling.”). If the change in
habeas decisional law at issue in Gonzalez cannot pass as an
extraordinary circumstance, then the change here should not fare
any better.
Moreover, Gonzalez was hardly a groundbreaking result. We
too have held that “a change in decisional law subsequent to a
final judgment provides no basis for relief under Rule
60(b)(6).” Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993) (citing Hall v. Warden, Md.
Penitentiary, 364 F.2d 495, 496 (4th Cir. 1966) (en banc)). In
Hall v. Warden, for instance, we denied the state’s 60(b) motion
after a Supreme Court ruling undermined our prior judgment
granting post-conviction relief, noting that the matter “should
not be reopened merely upon a showing of inconsistency with [the
Supreme Court] decision.” 364 F.2d at 496.
Indeed, the law on this issue reflects an admirable
consistency, as the decisions of other circuits attest. See
Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014) (declaring
13
that “the change in the decisional law effected by the Martinez
rule is not an ‘extraordinary circumstance’ sufficient to invoke
Rule 60(b)(6)”); Nash v. Hepp, 740 F.3d 1075, 1078-79 (7th Cir.
2014) (affirming the denial of petitioner’s Rule 60(b)(6) motion
since he presented “the ‘mundane’ and ‘hardly extraordinary’
situation in which the district court applied the governing rule
of procedural default at the time of its decision and the
caselaw changed after judgment became final”); McGuire v.
Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750-51 (6th Cir.
2013) (holding that the change in procedural default rules
worked by Trevino and Martinez is not an exceptional
circumstance justifying Rule 60(b)(6) relief because those cases
did not alter the constitutional rights of criminal defendants);
Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (noting that
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 under Rule 60(b)(6)” (quoting
Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir.
1990))). Moreover, even those circuit cases referenced by Moses
are peppered with cautionary language, underscoring that “the
jurisprudential change rendered by Martinez, without more, does
not entitle a habeas petitioner to Rule 60(b)(6) relief.” Cox v.
Horn, 757 F.3d 113, 124 (3d Cir. 2014). We have no authority to
depart from the rulings of the Supreme Court or our own, and we
14
see no reason to depart from the gravamen of national circuit
law.
IV.
The requirements of timeliness and of “extraordinary
circumstances” are not the only obstacles impeding Moses from
securing relief under Rule 60(b)(6). Martinez emphasized that a
petitioner’s ineffective-assistance-of-trial-counsel claim must
be a colorable one before post-conviction counsel can be deemed
ineffective for failing to raise it. See 132 S. Ct. at 1318(requiring that the underlying ineffectiveness claim be
“substantial”). Citing that language, the government urges us to
make the additional holdings that Moses’ counsel was not
ineffective at trial or sentencing, that there was no
ineffective assistance of post-conviction counsel for failing to
raise the IATC claim, and that in all events there was no
prejudice to Moses given the strength of the state’s case. We
decline, however, to reach those issues other than to note that
this case has long ago reached the point of churning procedures
without prospect of practical effect. The road to relief
stretches some distance, and Moses has faltered at the initial
steps. For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
15