United States District Court, E.D. Pennsylvania
June 15, 2004.
RONALD JOHNSON Petitioner
JOSEPH LEHMAN, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY Respondents.
The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
MEMORANDUM AND ORDER
Petitioner, Ronald Johnson ("Petitioner"), filing a Motion for
Relief under Fed.R.Civ.P. 60(b), seeks modification of this
court's judgment dismissing his Petition for Writ of Habeas
Corpus. Respondents, Joseph Lehman, the Attorney General of the
State of Pennsylvania, and the District Attorney of Philadelphia
County ("Respondents"), assert that a Fed.R.Civ.P. 60(b)
motion is unavailable to vacate a final judgment in an action
pursuant to 28 U.S.C. § 2254.
On December 19, 1994, Petitioner filed a petition for Writ of
Habeas Corpus with this court. On December 15, 1999, this court
granted respondents' motion to dismiss, without prejudice, as
Petitioner had not exhausted his state court remedies on all
claims. Johnson v. Lehman, et al., No. 94-7583 (E.D. Pa. Dec.
15, 1999). Petitioner filed a Pennsylvania Post-Conviction Relief Act
("PCRA") petition for relief from his conviction on August 27,
1999. The Pennsylvania Supreme Court having denied Petitioner's
Petition for Allowance of Appeal, his state court remedies were
exhausted on June 24, 2003. Eighty-one days later, on September
12, 2003, Petitioner filed a Motion to Reinstate Petition for a
Writ of Habeas Corpus. By order of March 18, 2004, denying the
motion, this court instructed Petitioner to file a motion
pursuant to Fed.R.Civ.P. 60(b) or to file a new petition for
habeas corpus. On April 21, 2004, Petitioner filed the instant
Fed.R.Civ.P. 60(b) motion.
Before addressing the merits of Petitioner's Rule 60(b) motion,
the court must determine whether that motion is, in essence, a
second or successive § 2254 habeas motion. The Antiterrorism and
Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No.
104-132, 110 Stat. 1214, limits a petitioner's ability to bring a
second or successive habeas petition.
28 U.S.C. § 2244(b).*fn1 A state prisoner seeking to file a second or successive § 2254 habeas petition must, first, move in the court
of appeals for an order authorizing the district court to
consider such a motion. 28 U.S.C. § 2244(b)(3)(A).
Fed.R.Civ.P. 60(b) provides that "the court may relieve a
party or a party's legal representative from a final judgment,
order, or proceeding" for a number of reasons, including
excusable neglect, newly discovered evidence, or any other reason
justifying relief from the operation of judgment. The motion must
be made within a reasonable time, not more than a year for
reasons such as excusable neglect and newly discovered evidence, but with no absolute limit for other reasons justifying relief.
The Third Circuit has not directly addressed whether a
Rule 60(b) motion to vacate a judgment denying habeas relief is
considered a second or successive habeas petition. Some courts in
this and other circuits view a Rule 60(b) motion as the
functional equivalent of a successive petition that cannot be
considered by a district court without prior authorization from a
court of appeals. See e.g., United States v. Rich,
141 F.3d 550 (5th Cir. 1998), cert. denied 526 U.S. 1011 (1999); United
States v. Bovie, 2001 U.S. App. LEXIS 17107 (10th Cir. 2001);
Felker v. Turpin, 101 F.3d 657, 661 (11th Cir. 1996) (per
curiam); Prigden v. Shannon, Civ. A. No. 00-4561, 2002 U.S.
Dist. LEXIS 18589, 2002 WL 31122131, at *3 (E.D. Pa. Sept. 26,
The Second Circuit initially ruled that a Rule 60(b) motion to
vacate a judgment denying habeas relief should never be construed
as a successive habeas petition, and "the fact that the court to
which the motion is addressed might conceivably go farther and
grant the habeas in response to the [Rule 60(b)] motion does not
. . . make such a motion a second habeas petition." Rodriguez v.
Mitchell, 252, F.3d 191, 199 (2d Cir. 2001). However, in
Gitten v. United States, 311 F.3d 529, 532 (2d Cir. 2002), it
held that a Rule 60(b) motion with a substantive attack on a
state court judgment should be transferred to the appellate
court; "suggesting that Rodriguez `settled' the issue by ruling that a 60(b) motion should never be treated as a second or
successive motion . . . somewhat overstated the matter.
Rodriguez concerned a 60(b) motion with grounds that `related
to the integrity of the federal habeas proceeding, not to the
integrity of the [underlying conviction].'" 311 F.3d at 532 n. 4.
The First and Seventh Circuits have held that a district court
should treat a Rule 60(b) motion as a successive habeas petition
requiring prior court of appeals authorization only if it
challenges the underlying conviction. If the Rule 60(b) motion
only challenges the integrity of the federal habeas proceedings,
it is allowed to proceed without prior court of appeals
authorization. Rodwell v. Pepe, 325 F.3d 66, 71 (1st Cir.
2003); Banks v. United States, 167 F.3d 1082 (7th Cir.
1999); Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002).
District courts in the Third Circuit, noting the absence of
guidelines from the Court of Appeals or the United States Supreme
Court, have opted to follow the First and Seventh Circuit by
rejecting the restrictive view that a Rule 60(b) motion to vacate
a judgment denying habeas relief should always be treated as a
second or successive habeas petition, and adopting the
procedural/substantive distinction. See, e.g., Telesford v.
United States, Civ. A. No. 97-210, 2004 U.S. Dist. LEXIS 5872,
2004 WL 724959 (D. Del. Mar. 31, 2004); United States v.
Cabiness, 278 F. Supp.2d 478 (E.D. Pa. 2003); Harper v.
Vaughn, 272 F. Supp.2d 527, 532 (E.D. Pa. 2003); United States
v. Harris, 268 F. Supp.2d 500, 502-04 (E.D. Pa. 2003); Pridgen
v. Shannon, 2002 U.S. Dist. LEXIS 18589, 2002 WL 31122131, at *3
(E.D. Pa. Sept. 26, 2002). Usually in this district, if the
motion challenges the federal habeas proceeding itself, rather
than the underlying conviction, it can proceed as a motion under
Rule 60(b) and not as a successive habeas petition. Harper,
272 F. Supp. at 532.
Petitioner's original habeas petition was dismissed for failure
to exhaust state remedies. The dismissal was explicitly premised
on the concession by the Commonwealth that after exhausting state
remedies, Petitioner could re-file the habeas petition, and it
would not be treated as a successive petition under AEDPA.
Johnson v. Lehman, No. 94-7583 (E.D. Pa. Nov. 9, 1999) (order
denying motion to amend petition). Petitioner has exhausted his
state remedies and, in his Rule 60(b) motion, argues that the
court should now address the merits of his claim. Petitioner's
Rule 60(b) motion focuses on the circumstances surrounding the
filing and disposition of his 1994 habeas petition. It does not
raise arguments concerning the constitutionality of his
conviction or otherwise seek to avoid AEDPA barriers to a
successive habeas petition. Therefore, authorization from the
Court of Appeals is not required and the court will address the
issue raised in the Rule 60(b) motion.
The decision to grant or deny relief under Fed.R.Civ.P.
60(b) lies in the `sound discretion of the trial court guided by accepted legal principles applied in light of all the relevant
circumstances. Ross v. Meagan, 638 F.2d 646, 648 (3d Cir.
Because of the one year limitations period for the first three
grounds available under Fed.R.Civ.P. 60(b), the only arguable
ground for the relief sought by Petitioner is the catchall
provision of Fed.R.Civ.P. 60(b)(6). Fed.R.Civ.P. 60(b)(6)
provides that the court may act to relieve a party from a final
judgment for "any other reason justifying relief from the
operation of the judgment." Relief under Fed.R.Civ.P. 60(b)(6)
is available only in cases evidencing extraordinary
circumstances. Morris v. Horn, 187 F.3d 333, 341 (3d Cir.
1999). Although some courts have recognized that, under
Fed.R.Civ.P. 60(b)(6), "in the exceptional case . . . an action may be
reinstated on account of an intervening change in the law, [but]
intervening developments in the law themselves rarely constitute
the extraordinary circumstances required for relief under
Rule 60(b)(6)." Harper, 272 F. Supp.2d at 532.
Petitioner argues that the court erred in dismissing, rather
than staying his federal habeas petition so that he could return
to state court to assert his claim of newly discovered evidence.
At the court's urging, Petitioner consented to the dismissal of
his claims without prejudice, in order to exhaust his state
remedies, with the explicit understanding that his claims could
be renewed after they were exhausted in the state courts. Johnson v. Lehman, Civ. A. No. 94-7583 (E.D. Pa. Nov. 9, 1999)
(order denying motion to amend). This court refused to stay the
petition, because "it is impermissible to grant a stay while
petitioner pursues his unexhausted claims in state court. See
Lambert v. Blackwell, 134 F.3d 506, 509 (3d Cir. 1998)." This
court further ordered:
defendant's concession that petitioner may proceed in
state court to present his new evidence precludes a
later assertion that the federal statute of
limitations was not tolled during petitioner's state
Id., at 1.
Recently, in Crews v. Horn, 360 F.3d 146 (3d Cir. Mar. 4,
2004), the Court of Appeals changed the procedure in this
Circuit. Considering a timely federal habeas petition containing
both exhausted and unexhausted claims dismissed by the district
court had dismissed, and finding there was a substantial danger
Crews would be time-barred from returning to federal court
(because his petition would be filed after the expiration of the
limitations period and it was unclear whether tolling would
apply), the court held:
district courts have the discretion to stay mixed
habeas corpus petitions but that, as in this case,
when an outright dismissal could jeopardize the
timeliness of collateral attack, a stay is the only
appropriate course of action.
Id., at 154.
In light of Crews, and Petitioner's reliance on the express
instructions of the court, Petitioner is entitled to relief from the final judgment.
For the foregoing reasons, Petitioner's Motion for Relief under
Fed.R.Civ.P. 60(b) is granted. As this action was previously
reviewed by Magistrate Judge Angell, the case will be referred to
her for consideration of the merits of Petitioner's claims. Order
AND NOW, this 15th day of June, 2004, upon consideration
of Petitioner's Motion for Relief under Fed.R.Civ.P. 60(b) and
response thereto, it is hereby ORDERED that:
1. Petitioner's Motion for Relief under Fed.R.Civ.P. 60(b)
(Paper #65) is GRANTED;
2. This action is referred to Magistrate Judge M. Faith Angell
for a Report and Recommendation.