The opinion of the court was delivered by: Pollak, J.
Charles Crenshaw, a prisoner in Pennsylvania's Dallas State Correctional Institute, has filed a motion for relief from judgment (docket no. 18), pursuant to Fed. R. Civ. P. 60(b)(6),*fn1 challenging this court's dismissal of his petition for habeas corpus in November 2002. Crenshaw was convicted by a jury in the Philadelphia Court of Common Pleas of first-degree murder and possession of an instrument of crime. After pursuing appeal and post-conviction relief in state courts, Crenshaw filed a petition for a writ of habeas corpus, which this court dismissed as untimely. See Order Adopting Report & Recc. (docket no. 16). Crenshaw seeks review of that decision because it involved application, to the statute of limitations issue, of Artuz v. Bennett, 531 U.S. 4 (2000), an opinion that was reviewed further by the Supreme Court in Pace v. DiGuglielmo, 544 U.S. 408 (2005). Crenshaw contends that the clarification offered by the Supreme Court in Pace represents the kind of extraordinary circumstance that justifies reversing this court's earlier decision on his petition.
First, I must determine if Crenshaw is entitled to review of his Rule 60 motion under the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA altered the federal habeas corpus statute to limit second or successive petitions for relief from a state criminal conviction. See 28 U.S.C. § 2244(b)(2). Some Rule 60 motions constitute second petitions and some do not:
[I]n those instances in which the factual predicate of a petitioner's Rule 60(b) motion attacks the manner in which the earlier habeas judgment was procured and not the underlying conviction, the Rule 60(b) motion may be adjudicated on the merits. However, when the Rule 60(b) motion seeks to collaterally attack the petitioner's underlying conviction, the motion should be treated as a successive habeas petition.
If neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, allowing the motion to proceed as denominated creates no inconsistency with the habeas statute or rules.
Gonzales v. Crosby, 545 U.S. 524, 533 (2005). Crosby is particularly useful to Crenshaw's motion: "Because petitioner's Rule 60(b) motion challenges only the District Court's previous ruling on the AEDPA statute of limitations, it is not the equivalent of a successive habeas petition." Id. at 535-36. Accordingly, it is proper for me to review Crenshaw's motion.
As to the merits, this court dismissed Crenshaw's habeas petition as untimely after analyzing the statute of limitations issue with reference to Artuz:
There is an exception in the statute, however, for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). [The Third Circuit] adopted a "flexible approach" regarding the forms of state review that qualify for equitable tolling. Nara v. Frank, 264 F.3d 310, 315-316 (3d Cir. 2001) (citing Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("an application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, . . . the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.")
Report & Reccomendation at 7.*fn2 In 2005, in Pace v. DiGuglielmo, the Supreme Court answered a question left open by the Artuz opinion:
In Artuz v. Bennett, supra, we held that time limits on post-conviction petitions are "condition[s] to filing," such that an untimely petition would not be deemed "properly filed." Id., at 8, 11 ("[A]n application is ' properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" including "time limits upon its delivery"). However, we reserved the question we face here: "whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed." Id., at 8 n. 2. Having now considered the question, we see no grounds for treating the two differently. Pace, 544 U.S. at 413.*fn3
Crenshaw does not argue that this court misapplied Artuz to the statute of limitations issue back in 2002; instead, he argues that he is entitled to relief because the Artuz ruling has been modified by the Supreme Court in Pace:
This Honorable Court's interpretation of the AEDPA statute of limitations was by all appearances correct under the Third Circuit's then prevailing interpretation of 28 U.S.C. § 2244(d)(2).
It was extraordinary that subsequently, after Petitioner's case the Supreme Court of the United States arrived ...